The Building & Construction Trades Council of Phila.

National Labor Relations Board - Board Decisions

Dec 11, 1964

149 N.L.R.B. 1629 (N.L.R.B. 1964)

BUILDING & CONSTRUCTION TRADES COUNCIL OF, PHILA. 1629
lance or observation and that we are aware of who attends and speaks at such
meetings and what goes on there.
WE WILL NOT coercively interrogate employees as to their union membership,
affiliations, desires, sympathies, or activities.
WE WILL NOT discriminatorily promulgate or apply any no-solicitation rule
for the purpose of impeding union organization.
WE WILL NOT, directly or indirectly, make or carry out any threat to discon-
tinue part-time or short-shift employment in the event of unionization, nor to
refuse, under any circumstances, to permit a union shop, nor that it would be
useless or futile to vote for or join a union; nor that we would not sign an agree-
ment with a union acting as legal bargaining representative of our employees.
WE WILL NOT discourage membership in United Textile Workers of America,
AFL-CIO, or any other labor organization by terminating or threatening to
terminate, or by failing or refusing to reinstate or reemploy, or by otherwise
engaging or threatening to engage in any discriminatory action against any
employee in regard to his or her hire or tenure of employment or any term or
condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce employees
in the exercise of their rights guaranteed to them by Congress, to self-organiza-
tion, to form labor organizations, to join or assist any labor organization, to
bargain collectively through representatives of their own choosing, to engage in
concerted activities for the purposes of collective bargaining or other mutual
aid or protection; or to refrain from engaging in any or all such activities,
except to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as authorized in Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any manner interfere with the right of our employees to
make a free and untrammeled choice in any election conducted by the National
Labor Relations Board.
All our employees are free to become, remain, or to refrain from becoming or
remaining, members of United Textile Workers of America, AFL-CIO, or any other
labor organization.
WIGWAM MILLS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-If the above employee is presently serving in the Armed Forces of the
United States, we shall notify her of her right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or com-
pliance with its provisions.
The Building & Construction Trades Council of Philadelphia
and Vicinity , AFL-CIO, James Loughlin, James O'Neill and
Ed Goldstein and Fisher Construction Company
The Building & Construction Trades Council of Philadelphia
and Vicinity, AFL-CIO, James Loughlin, James O'Neill and
Ed Goldstein and Fisher Construction Company. Cases Nos.
4-CC-07N and 4-CP-62. December 11, 196.4
DECISION AND ORDER
On April 9, 1964, Trial Examiner James F. Foley issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents,
149 NLRB No. 144.
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other than Goldstein, had engaged in and were engaging in certain
unfair labor practices, and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Examiner also
found that the Respondents had not engaged in certain other unfair
labor practices, and recommended that the allegations of the com-
plaint pertaining thereto be dismissed. Thereafter, exceptions to the
Trial Examiner's Decision and supporting briefs were filed by the
General Counsel, the Charging Party, the Respondents jointly, and
Respondent James O'Neill individually.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions,' and
recommendations of the Trial Examiner, with the following modifica-
tions and additions.
In agreement with the Trial Examiner, we find that an object of
the picketing of the International Motor Lodge project was to force
Fisher Construction Company to cease doing business with the non-
union subcontractors engaged by Fisher for work on the project.
This finding of the Trial Examiner is amply grounded in record
evidence disclosing that Respondents, in prepicketing discussions with
Fisher, declared that the project had to be 100 percent union, and
demanded that Fisher cancel his existing subcontracts and bring in
union subcontractors.
However, we do not agree with the Trial Examiner that picketing
for such an objective did not violate Section 8(b) (4) (B) simply
because Respondents were also engaged in primary disputes with
each of the nonunion subcontractors as well as with Fisher. The
Trial Examiner's characterization of the subcontractors as primary
employers seems to us to be correct. Fisher, of course, was also a
primary employer, as the Respondents were seeking to force it to
recognize or bargain with them, albeit by picketing which we find to
be violative of Section 8(b) (7) (C). However, as the demands made
upon Fisher included demands that it remove the nonunion subcon-
1 Although the Trial Examiner stated "I conclude and find that Respondents . . .
picketed and caused to be picketed the Motor Lodge project and Warner," he did not in-
clude Warner's name in his conclusions of law. Accordingly, we hereby amend para-
graph 5 of his conclusions of law by adding after the words "Delaware County, Pennsyl-
vania," the words "and Warner Concrete Company."
BUILDING & CONSTRUCTION TRADES COUNCIL OF PHILA. 1631
tractors from the project, and as the picketing and related conduct
were clearly directed, in part, to enforcement of that demand, it is
clear that Fisher occupied a dual status, primary as to the recogni-
tion and bargaining demands and secondary as to the demands that
it cancel the subcontracts of the nonunion subcontractors because of
their nonunion status. It is well established that picketing of a gen-
eral contractor to force him to cancel existing contracts with subcon-
tractors because of their nonunion status violates Section, 8(b) (4)
(B), even though such objective is not the sole objective of the pick-
eting? Accordingly, and contrary to the Trial Examiner, we find
that by picketing the project with an object of forcing Fisher to cease
doing business with the nonunion subcontractors engaged to work on
the project, Respondents violated Section 8(b) (4) (i) and (ii) (B) of
the Act .3
THE REMEDY
We agree with the Trial Examiner's finding that Respondent Coun-
cil and Respondents James Loughlin and James O'Neill picketed and
caused to be picketed Fisher Construction Company's Motor Lodge
project and Warner Concrete Company, for an object of forcing or
requiring Fisher to recognize, or bargain with, certain local unions
affiliated with the Respondent Council. Fisher has ' in the past
employed members of affiliated locals other than Laborers, Carpen-
ters, and Operating. Engineers. The record shows that -representa-
tives of other affiliated locals made demands upon Fisher, and, par-
ticipated actively in the'picketing. In view of these facts, and as it
is reasonable to.assume that Respondent Council might, in the future,
engage in similar conduct in support of its affiliates other than
Laborers, Carpenters, and Operating Engineers, unless enjoined
therefrom, we shall broaden the Trial Examiner's Recommended
Order to enjoin such conduct, when it is in support of demands made
by any of Respondent Council's affiliates, including Laborers, Car-
penters, and Operating Engineers .4
The Trial Examiner recommends that Respondent Council be
ordered to post copies of a "Notice to All Officers of and Delegates to"
the Council in conspicuous places at its business offices and meeting
2 Northeastern Indiana Building and Construction Trades Council ( Centlivre Village
Apartments), 148 NLRB 854.
3 Member Fanning concurs in the conclusion that Respondents violated Section
8(b) (4) (1) and ( ii) (B) in the respects indicated herein, inasmuch as (1) the record clearly
indicates that Respondents ' objects included (a)' forcing S. H. Terry & Co. to cease doing
business with Fisher Construction Company, and (b) forcing Fisher Construction Com-
pany to cease doing business with the nonunion subcontractors it had engaged to work
on the project; and (2 ) neither the'picketing of Fisher' nor the picketing of the non-
union sulicontra_ctors, conformed to. Moore Dry Dock standards. Moore Dry Dock Com-
pany, 92 NLRB 547.
4Paragraphs 1 and 2 of the notice attached'to the Trial Examiner's Decision, marked
"Appendix,'.' are hereby amended by adding after the words "Operating Engineers,"
wherever they appear, the words "or any other local unions."
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
halls, and all places where Respondent Council customarily posts its
notices. The General Counsel objects that such posting is not suffi-
cient, since it will be in places where it will not be seen by the vast
majority of the affiliated locals' members . It asks that the Board
require posting of the notice at the business offices and meeting halls,
and all places where they customarily post notices , of the various
affiliated locals as well. We agree with the General Counsel and shall
so order.
We shall also order that Respondent Council supply copies of the
notice to J. H. Terry and Co., Warner Concrete Company, Fizzano
Bros. Concrete Products , Inc., and any other employer or person
doing business with Fisher Construction Company (as shall be
determined by the Regional Director for Region 4), which copies
those employers may post, if they be willing.
CONCLUSIONS OF LAW
The Trial Examiner's conclusions of law are hereby amended by
substituting the following paragraph for the Trial Examiner 's ninth
paragraph :
"9. By picketing , or causing to be picketed , the site of the con-
struction of the International Motor Lodge in Delaware County,
Pennsylvania , for an object of forcing or requiring Fisher Construc-
tion Company to cease doing business with its nonunion subcon-
tractors, Respondent Council and Respondents James Loughlin and
James O'Neill , its agents , have engaged in unfair labor practices
within the meaning of Section 8(b) (4) (i ) and (ii ) ( B) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner, with the following additions and
modifications, and orders that Respondents, The Buliding & Con-
struction Trades Council of Philadelphia and Vicinity, AFLCIO,
James O'Neill, its president, and James Loughlin, its business man-
ager, and all its other officers, agents, and representatives, shall take
the action set forth in the Trial Examiner's Recommended Order,
with the following modifications :
Paragraph 1(a) is hereby amended by adding after the words
"Operating Engineers," the words "or any other affiliated local
unions."
Paragraph 1(b) (2) is hereby amended by adding after the words
"Operating Engineers," the words "or any other local unions."
The following shall be added after paragraph 1(b) :
"(c) Engaging in, or inducing or encouraging any individual
employed by Fisher Construction Company, or any other employer,
BUILDING & CONSTRUCTION TRADES COUNCIL OF PHILA. 1633
to engage in, a strike, or threatening, coercing, or restraining Fisher
Construction Company, or any other employer, by a strike or picket-
ing, where in either case an object thereof is to force or require Fisher
Construction Company to cease doing business with Frank Bauer,
John Capone, R. and L. Plumbing Contractors, Viking Aquatics
Pools, Inc., John Lozinak, Carr and Duff, Frohmander and Smith,
Felton Construction Co., Eugene Varone, William Hessler, Aaron &
Company, Andrew Scanlon, Warner Concrete Company, Di Fran-
cesco & Sons, or Fizzano Bros. Concrete Products, Inc."
The first sentence in paragraph 2(a) shall be deleted, and the
following substituted : "Post in conspicuous places at the offices and
meeting halls of Respondent Council, and of all locals affiliated with
Respondent Council, and at all places where Respondent Council and
its Locals customarily post notices, copies of the attached notice
marked `Appendix."'
Paragraph designated 2(b) shall be designated 2(c), and the
following paragraph shall be added :
"(b) Sign and mail sufficient copies of said notice to the Regional
Director for Region 4 for posting, the employers willing, by J. H.
Terry and Co., Warner Concrete Company, and Fizzano Bros. Con-
crete Products, Inc., and any other employer or person doing busi-
ness with Fisher Construction Company (as shall be determined by
the Regional Director for Region 4)."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These cases, Cases Nos. 4-CC-272 and 4-CP-62, were brought under Section
10(b) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519),
herein called the Act, on charges filed by Fisher Construction Company, a partner-
ship, herein called Fisher , with the National Labor Relations Board, herein called
the Board , on September 17 and 19, 1963, and an amended charge filed on Septem-
ber 20 , 1963, against The Building & Construction Trades Council of Philadelphia
and Vicinity , AFL-CIO, James Loughlin , James O'Neill and Ed Goldstein , herein
respectively called Respondent Council, Respondent Loughlin, Respondent O'Neill,
and Respondent Goldstein . On November 6, 1963, General Counsel issued a com-
plaint against these Respondents alleging violations of Section 8(b)(4)(1 ) and (ii)
(B) and 8 ( b)(7)(C) of the Act. On November 13, 1963, Respondents filed an
answer denying the allegations of illegal conduct.
A hearing on complaint and answer was held before Trial Examiner James F.
Foley in Philadelphia , Pennsylvania , on December 11, 12, and 13, 1963. Respond-
ents, Charging Party, and General Counsel were represented at the hearing , and all
parties were afforded an opportunity to be heard , introduce evidence , make oral
argument , and file briefs . The parties waived oral argument and filed briefs after
the hearing was closed.
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FINDINGS
During the 12-month period preceding November 6, 1963, Fisher, the Charging
Party, purchased materials with a value in excess of $90,000 from suppliers located
in States other than Pennsylvania which were shipped and delivered across State lines
to Fisher in Pennsylvania . I find that Fisher is engaged in commerce within the
meaning of Section 2 ( 6) and (7) of the Act, and that assertion of jurisdiction will
effectuate the purposes of the Act.
770-076-65-vol 149-104
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Respondent Council is a labor organization within the meaning of Section 2(5) of
the Act.'
III. THE UNFAIR LABOR PRACTICES
A. Issues
The issues in this case are whether Respondents Council, Loughlin, O'Neill, and
Goldstein engaged in conduct proscribed by Section 8(b) (4) (i) and (ii) (B) and
(7) (C) of the Act, for objects proscribed by those subsections of the Act. With
respect to Section 8(b) (4) (i) and (ii) (B), the question is whether they have engaged
in illegal conduct against general contractor Fisher, subcontractors J. H. Terry and
Co., Frank Bauer, John Capone, R. and L. Plumbing Contractors, Viking Aquatics
lI make the following findings from documentary evidence and the testimony of Re-
spondent Loughlin, business manager of Respondent Council. The Council is comprised
of a membership of local unions affiliated with international unions which ale in turn
affiliated with the Building and Construction Trades Department, AFL-CIO. It is
chartered by the Building and Construction Trades Department and complies with and
carries out its laws and decisions The local unions are admitted to membership upon
application to and acceptance by the Council The members of the local unions participate
in the business of the Council through delegates The delegates are elected to the Council
by the membership of each local. A delegate from each local is the local's business mana-
ger duly elected as a delegate The Council has a constitution and bylaws and elected
officers. The elected officers are chosen from and elected by the delegates Officers of the
Council must be members of affiliated locals and in good standing in their locals for at
least 12 months prior to their election as delegates to the Council The Council may
enter into agreements with individual employers and associations of employeis, but no
agreement with an association of employeis is binding unless submitted to and approied
by the majority of the membership of affiliated locals present and voting in a referendum
ballot According to the constitution and bylaws of the Council, its objects are to enlist
the voluntary cooperation and support of eligible local unions, develop and maintain
haimonious relations among them and the trades they represent, and to establish and
maintain business relations and agreements betaeen it and employers and other persons to
the ends that adequate wage scales and desirable working conditions for employees may
be established and maintained in the building industry and the best interest of the build-
ing industry be served both for employers and employees. The Council enters Into agree-
ments with individual general contractors in the greater Philadelphia, Pennsylvania, area,
including Delaware County, and with the General Building Contractors Association act-
ing on behalf of general contractors, subcontractors, and suppliers in the greater Phila-
delphia area, including Delaware County, relating to wages, hours , and working condi-
tions of members of affiliated unions and other employees In the crafts the affiliated
unions represent , the subcontracting of work to other employers , strikes, lockouts, and
other work stoppages , and arbitration of disputes, disagreements , or questions arising
out of the Interpretation of the agreements It signs, or any collective -bargaining agree-
ment an affiliated union may have with the particular employer or employer association.
Therefore, employees participate in the activities of the Council, and the Council exists
for a purpose of dealing with employers concerning grievances , labor disputes , wages,
rates of pay, hours of employment, or conditions of work. Council is a labor organization.
Metallic Building Company, 98 NLRB 386, 387, 395, enfd. 204 F. 2d 826, 823 (C.A. 5),
cert . denied 347 U.S. 911, and cases cited therein ; Hallsburton Company, 142 NLRB 644,
53 LRRM 1106, 1107. Davis V. Washington State Council Carpenters, et al., 47 LRRM
2245 (D.C. Wash., 1960 ), relied on by Respondents , Is Inapposite.
In Its answer to a complaint dated February 2, 1961 , In an unfair labor practice pro-
ceeding before the Board , Case No. 4-CC-150, the Council admitted it was a labor organi-
zation. In a complaint In trespass it filed on October 2, 1963, in the Court of Common
Pleas of Delaware County, Pennsylvania, against the Charging Party and other parties,
in connection with a matter arising out of this same dispute, Council stated that it was
a "collective bargaining institution in which capacity it functioned on behalf of more than
25,000 members of the Building and Construction Trades Crafts" Council admits it is
a labor organization . National Organization Masters, Mates and Pilots of America, Inc.,
AFL-CIO, et at. (J. W. Banta Towing Co.), 116 NLRB 1787, reversed on other grounds
253 F. 2d 66 (C.A. 7) ; National Maritime Union, AFL-CIO, et at., 121 NLRB 208, 209,
enfd. 274 F. 2d 167, 171 (C.A. 2).
BUILDING & CONSTRUCTION TRADES COUNCIL OF PHILA. 1635
Pools, Inc., John Lozinak , Carr and Duff, Frohmander and Smith , Felton Construc-
tion Co., Eugene Varone, William Hessler, Aaron & Company, and Andrew Scanlon,
and suppliers Warner Concrete Company, Di Francesco & Sons, and Fizzano Bros.
Concrete Products , Inc.,2 by threats of strikes and physical attack and injury on these
employers and their employees , and by strikes , physical assaults on employers and
employees , picketing , including mass picketing , orders, directions , and oral appeals,
for the objects of forcing or requiring Fisher to cease doing business with the sub-
contractors and suppliers ; forcing or iequiring the subcontractors and suppliers to
cease business with Fisher ; and forcing or requiring supplier Fizzano and other sup-
pliers to cease doing business with subcontractor Felton. With respect to Section
8(b)(7)(C) of the Act, the question is whether Respondents have picketed, or
threatened with picketing , Fisher, the subcontractors and suppliers , for the object of
forcing or requiring Fisher to recognize or bargain with the Council or one of its
affiliated locals, or forcing or requiring Fisher's employees to accept or select the
Council or one of its affiliated locals as their collective - bargaining representative,
although such labor organizations are not currently certified as the representatives
of such employees , and the picketing until enjoined by the United States District
Court for the Eastern District of Pennsylvania on November 8, 1963, had been con-
ducted more than 30 days without the filing of a petition for an election and certifi-
-cation as collective -bargaining representative pursuant to Section 9(c) of the Act.3
B. Evidentimy findings 4
Respondent James O'Neill is the president of Respondent Council and business
manager of Local Union 690, United Association of Journeymen and Apprentices
,of the Plumbing and Pipefitting Industry of the United States and Canada. The
Local and the International jointly and severally, are hereinafter referred to as
Plumbers. Respondent James Loughlin is the business manager of Respondent
Council Respondent Ed Goldstein is a delegate to the Council and a representative
of the Philadelphia Metropolitan District Council of Carpenters, United Brotherhood
of Joiners and Carpenters of America, AFL-CIO. The District and the International,
-jointly and severally, are hereinafter referred to as Carpenters 5
On or about May 20, 1963, general contractor Fisher began the construction of
the International Motor Lodge, herein called Motor Lodge project, Tinicum Town-
-ship, Delaware County, Pennsylvania. The estimated cost of this construction was
$630,000.6 Fisher subcontracted the excavation and grading to Capone, an indi-
vidual; the hauling of fill to Bauer, an individual; pile driving to Terry; construction
of a swimming pool to Viking; electrical work to Lozinak, an individual; special
2 These subcontractors and suppliers are hereinafter respectively called Terry, Bauer,
Capone, R and L, Viking, Lozinak, Carr and Duff, Frohmander and Smith, Felton,
Varone, Hessler, Aaron, Scanlon, Warner, Di Francesco, and Fizzano.
30n November 8, 1963, the United States District Court for the Eastern District of
Pennsylvania In Samof v. Building & Conatruotion Trades Council of Philadelphia, etc.
(Fisher Construction Co.), 236 F. Supp. 120, a proceeding under Section 10 (1) of the
-Act, found reasonable cause to believe that the Respondents In this proceeding had vio-
lated Section 8(b) (4) (1) and (1i) (B) and 8(b) (7) (C) of the Act, and issued a temporary
injunction order enjoining the violations. The order permitted Respondents, beginning
on November 25, 1963, at the construction site of International Motor Lodge, the situs
of the dispute, to engage in picketing In protest against a failure by specified employers
-to comply with area standards for wages and working conditions.
The following findings of conduct by Respondents are premised on the testimony and
documentary evidence offered by General Counsel. Respondents did not offer any rebuttal
testimony. Respondents, however, contest by evidence and argument the objects attributed
to this conduct. They contend that the objects have been to protest failure by Fisher
and the subcontractors to comply with area standards for wages and working conditions,
and to obtain a subcontracting clause protected by the proviso to Section 8(e) of the Act.
5 District councils as well as local unions affiliated with them are affiliated with Re-
spondent Council.
6 James J. Fisher, Sr., and sons, James J. Fisher, Jr, and Thomas Fisher are the partners
in Fisher. James J. Fisher, Jr., a witness for General Counsel and project superintendent
for Fisher, is hereinafter referred to as James Fisher, Jr., and Fisher, Junior ; James J.
.Fisher, Sr., is hereinafter referred to as James Fisher, Sr., and Fisher, Senior.
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
electrical work and installing high-power lines and transformers to Carr and Duff;
carpentry work to Frohmander and Smith ; plumbing to R. and L.; brick and block
work to Felton . concrete work to Varone , an individual ; roofing work to Hessler, an
individual ; plastering to Aaron, and painting and decorating to Scanlon , an individual.
All of these subcontractors with the exception of Terry are known in the industry as
nonunion 7 That is, they do not have collective bargaining contracts with labor
organizations , and their employees are not represented by labor organizations for
purposes of collective bargaining . Terry has collective -bargaining contracts with
Local 454, Wharf and Dock Builders Association , AFL-CIO; Local 542, International
Union of Operating Engineers , AFL-CIO; and Local 57 of International Hod Car-
riers Building and Common Laborers Union of America , AFL-CIO . s Terry's
employees are represented by these labor organizations for collective -bargaining pur-
poses. The subcontracts were awarded to the above-named subcontractors pursuant
to the procedure of invitations to bid, bids and awards to the lowest responsible
bidder.
Subcontractor Terry began driving piles on August 7, 1963. A few days befoie
Terry started , three labor representatives visited Fisher 's office on the Motor Lodge
project. The office was a trailer located near a vehicle entrance to the project. Pres-
ent in the office were James J. Fisher, Sr ., James J. Fisher, Jr., and Bud Harrison, a
Fisher superintendent on another of its projects . The three labor representatives
were John Orr, a delegate to the Council from Local 690 of Plumbers , and Messrs.
Archie, a delegate to the Council from a local in the Philadelphia area of the Laborers,
and Crawford , a delegate to the Council from a local in the Philadelphia area affili-
ated with the United Brotherhood of Carpenters and Joiners of America , AFL-CIO,
hereinafter called Carpenters . Crawford identified Orr as the Plumbers' representa-
tive of the Council of Delaware County , Archie as the Laborers ' representative of
the Council of Delaware County, and himself as the Carpenters ' representative of
the Council of Delaware County.9
The labor representatives asked the Fishers, Senior , and Junior , who the subcon-
tractors were. Fisher, Junior, named them, and the labor representatives stated they
were nonunion except Terry. The Fishers were asked if they had thought about bring-
ing union subcontractors on the project . One representative remarked that if Fisher
used union contractors , it would have a more skillful , smoother running job, and
would not have a "lot" of the headaches that it would have if nonunion contractors
did the work . Orr asked the Fishers how they thought they were going to do a million
dollar job nonunion . One of the representatives said that if the project did not go
union, it would not get off the ground . Representative Archie said he could vouch
for that. The conversation ended at this point, and the labor representatives departed
On August 10 or 11, 1963 , Robert Cahill , a delegate to the Council from Local 542
of Operating Engineers , approached James Fisher , Jr., at the Motor Lodge project,
and asked him what he intended to do about making the job union . He also asked
Fisher, Junior, why Capone's equipment was not union . Fisher, Junior, replied that if
Capone's equipment was union , and Capone joined the Operating Engineers, he
would not be able to operate his own equipment . Cahill answered that this require-
ment was easy to get around . He said that Capone could transfer the equipment to
Fisher , and Operating Engineers would give him a card to operate it. Fisher, Junior,
rejected this suggestion of Cahill
On August 12, 1963, 12 to 14 representatives of craft unions affiliated with
Respondent Council appeared at Fisher 's office on the Motor Lodge project. Orr,
Archie, and Crawford were in this group . James Fisher , Jr., was in the project office
The labor union representatives talked with him. After introductions , Fisher, Junior,
was asked again to name the subcontractors with which Fisher had contracts. He
named them , and, as he did, one or more in the group of labor representatives indi-
cated they were nonunion with the exception of Terry. Terry was identified as union.
'Fisher , the general contractor , and these subcontractors are engaged in commerce or
in an industry affecting commerce within the meaning of Section 8(b) (4) (1) and ( ii) (B)
of the Act as defined in Section 501 ( 1) of the Act Sheet Metal Workers International
Association , Local Union No. 299 , etc. (S M. Eisner and Sons ), 131 NLRB 1190
8 These locals and their internationals , jointly and severally , are hereinafter referred to
respectively as Wharf and Dock Builders , Operating Engineers , and Laborers
9 Respondent Council Is Council for Philadelphia and vicinity . Vicinity includes the
five Pennsylvania counties of Philadelphia , Bucks, Chester , Delaware , and Montgomery
The Motor Lodge project is in Delaware County.
BUILDING & CONSTRUCTION TRADES COUNCIL OF PHILA. 1637
Orr asked Fisher , Junior, what his intention was in regard to joining the union contrac-
tors or making the job union .lu He answered that he would talk the matter over
with his partners, and let him know in a week or 10 days Oir replied that if they
waited until then , Terry would be finished driving the piles, and the unions would
no longer have their bargaining power. Archie said that he would permit Fisher to
use union laborers at a scale 50 to 60 cents an hour lower than the union laborers'
scale for commercial construction even though the Motor Lodge project was classi-
fied as commercial construction . One of the labor group asked Fisher , Junior, to call
some union contractors and obtain bids on the work that had been awarded to the
nonunion subcontractors . Another, in response to Fisher, Junior's inquiry as to what
he was supposed to do with the nonunion men working for him, said that it made
no difference what he did with them , that the project had to be 100 percent union.
Orr said that Fisher 's employees would get union cards . The group of labor repre-
sentatnes then left the project office A few minutes later Archie returned with a
directory issued by the Council containing the names of general contractors, sub-
contractors , and suppliers with which the Council and affiliated unions had agree-
ments. Earlier , when it had been suggested to Fisher , Junior, that he contact union
subcontractors he had asked how he could make such contacts Archie referred to
contractors in the directory . Fisher, Junior , and Joseph Rosati, vice president of
R. and L, the plumbing subcontractor , who came into the office at this time, com-
mented on some of the contractors listed This ended the conversation
On Friday , August 11 , Louis H. Quillen , vice president of Terry, was informed by
Harry Anderson , business agent of Wharf and Dock Builders , and a delegate to the
Council, that there was to be trouble at the Motor Lodge project . He telephoned
Quillen on August 13, and informed him that the Council would start picketing the
project on August 15 and advised him to have his equipment off the project at that
time , as his employees would not be allowed to cross the picket line. Respondent
Loughlin testified that the Council 's executive board authorized the picketing prior
to August 10, 1963. On the evening of August 14 , Terry moved its equipment across
the street to the parking lot of the Willows , a tavern and hotel . Terry had worked
from Wednesday , August 7, to Friday, August 9, and from Monday, August 12,
through August 14. About 8 a.m., on August 15, 8 or 10 pickets bearing picket signs
began patrolling the Motor Lodge project. The signs contained the following legend:
THIS BUILDER
Is Destroying
Building Industry Standards
Protest Against
These Methods
Not Observing Philadelphia Area
Wages and Conditions
LOCAL UNION NO 420
BUILDING AND CONSTRUCTION TRADES COUNCIL
of Philadelphia & Vicinity
AFL-CIO
Crawford was with the pickets. James Fisher , Jr., saw the pickets patrolling when
he arrived at the project . He handed Crawford the Council 's directory which he had
received from Archie the prior Friday. In a lot alongside the Motor Lodge project,
Respondent Council- erected an 8- by 8-foot sign bearing the legend "Building Trades
Council Strike Headquarters ." When the picketing started on August 15 , Fisher had
four or five laborers working on the Motor Lodge project . Frohmander and Smith
had three or four employees doing carpentry work, and Lozinak had an employee
1°A union contractor not a member of the Geneial Building Contractors Association
must sign an individual contract with Council Council's contracts with general con-
tractors and the General Building Contractors Association provide, among other things,
that the general contractors shall recognize the Council as the spokesman for the workers
in the industry, and the legal representative of the local unions for the purpose of their
collective relationships with them. that they shall execute collective-bargaining contracts
only with local union members of Council repiesenting the crafts they employ, and, for
work at the jobsite, shall subcontract only with subcontractors who have or shall enter
into collective-bargaining contracts with these local union members; and that they and
the subcontractors shall comply ii ith the rules and i egulations of the local unions as well
as the wage rates, hours, and othei woiking conditions recognized by them.
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doing electrical work. Capone was finishing his excavating work. Terry's employees
refused to cross the picket line and were sent home. It did no further work at the
project. Fisher and the other subcontractors and their employees continued working
The picketing of the project with 8 to 10 pickets and the above sign continued
until September 10, 1963. On that day, 150 to 200 persons engaged in mass picket-
ing. Mass picketing by 75 to 200 pickets continued until September 16, when the
Council and Fisher entered into a stipulation limiting the method and manner of
picketing. The stipulation was approved by the Court of Common Pleas of Dela-
ware County, Pennsylvania As stated at footnote 3, supra, the United States Dis-
trict Court for the Eastern District of Pennsylvania enjoined the picketing on Novem-
ber 8, 1963, and permitted protest picketing starting November 25, 1963
From the commencement of the picketing, Cahill and Orr have carried picket
signs, and Cahill, Crawford, and Archie have placed pickets on the picket line, have
given them instructions, and have transported them.J" These four and Respondents
O'Neill and Loughlin as well as William Foster, a business agent of the Laborers and
a temporary vice president of Council, have been present regularly at the picket line.
The Council directed the activities of the strike and the picketing from the Dutch
Club, located about 500 feet from the Motor Lodge project, until the stipulation
approved by the Delaware county court on September 16. From then on the Council
directed the strike and picketing from another place identified by Loughlin as the
Republican Club at Fourth Street. O'Neill, president of Council, and the Council's
executive board assigned the picket captains 12 The picket sign legends have always
showed the Council as conducting the picketing. At different times prior to the
cessation of the picketing on November 8, they also showed Local 420 of the Steam-
fitters, Local 360 of the Plumbers, and Local 470 of the Teamsters as cosponsors of
the picketing The evidence of record indicates that the picket signs used on and
after November 23 identify only the Council as the sponsor of this union activity.
The picket sign legend remained unchanged until the picketing was enjoined on
November 8, 1963. As previously shown, it had the representation that the picketing
was a protest against the builder's failure to comply with area standards for wages
and working conditions A petition has not been filed with the Board pursuant to
Section 9(c) of the Act by Council, the locals affiliated with Council or the interna-
tional unions with which the locals are affiliated seeking certification as collective-
bargaining representative of Fisher's employees.
On Friday, August 16, 1963, Cahill, Operating Engineers' representative, visited
James Fisher, Jr., at the Motor Lodge project office and asked if they could get
together and negotiate the unionizing of the project. Fisher, Junior, replied that Fisher
would negotiate only if Terry were permitted to finish the pile driving at the project
Cahill said that this statement by Fisher, Junior, could not be discussed with the Coun-
cil until the following Monday or Tuesday. Fisher, Junior, said he could not wait
until then as he was bringing in his own pile-driving equipment over the weekend. He
added that if the Council let Terry back on, he would not do any other work until
they talked again Cahill said he would have to talk to the others, and went across
the street to the Willows Tavern and had a conversation with Crawford, Archie, and
Respondent Loughlin. When he returned, he said they would not agree to let Terry
return. He said further that if Terry came in, "they would lose their bargaining
power because they figured they had the job at a standstill without the piledriver "
The mass picketing by 150 to 200 pickets on September 10, 1963, was a shoulder-
to-shoulder close order file of men that encircled the entire project. They had arrived
in substantial numbers by 7 45 a.m Some of them carried picket signs. Some
screamed and hollered, called the employees working "scabs," and threw stones which
bounced off various pieces of equipment on the project Respondents O'Neill and
Loughlin, the president and business manager of Council, and Archie, Crawford, and
Orr were present James Fisher, Jr., General Counsel's witness, testified he thought
Goldstein was present in the afternoon with a Carpenter representative. About
8 a.m , on September 10, Rosati, vice president of R. and L., the plumbing subcon-
tractor, drove on to the project. He had been installing plumbing equipment since
"This is the testimony of James Fisher, Jr , General Counsel's witness, which I credit,
be was an eyewitess.
12 This is the testimony of Respondent Lou_hlin, business manager of Council. who
testified for General Council under subpena. He stated he did not know until after the
court-approved stipulation of September 16 who the picket captains were According to
him they were appointed and assigned by O'Neill and the executive board at 5 30 in
the morning, and he did not arrive until later. He identified Orr as a picket captain
after September 16.
BUILDING & CONSTRUCTION TRADES COUNCIL OF PHILA. 1639
August 19 as a journeyman with the assistance of a helper . The helper was wiih
him on September 10. Respondent O'Neill, who with another person approached
Rosati, said , "You don't expect to work here , do you?" Rosati answered , "Yes I am,
who is going to stop me?" O'Neill then said , "Well, you 're looking for trouble."
Between 8 and 8:30 a.m ., Rosati found that a substantial part of the plumbing that
he had installed from August 19 to September 9 had been ripped out . It had been
intact on September 9. While he was examining the damage , pickets were hollering
"scab" and throwing stones which fell in his vicinity . Rosati, who worked as a,
journeyman , did not attempt to work, and instructed his helper to leave the project.
He resumed work under R . and L .'s subcontract with Fisher about September 18,
following the stipulation of September 16 governing the picketing . About 7:45 a.m.,
on September 10, the pickets also prevented an automobile driven by a laborer
employed by Fisher with three other laborers as passengers from entering the project
parking lot. The laborers eventually succeeded in getting on the project and working.
On the afternoon of September 10, Warner , a concrete supplier, attempted to,
deliver concrete to the Motor Lodge project . Warner's truck arrived with the con-
crete about 1 : 30 p.m . Fifteen to twenty of the pickets laid down in front of the truck
as the driver attempted to drive it on the project site, and another 15 to 20 pickets
gathered by its sides . They effectively blocked the entrance to the project . Tinicum
Township Police and Pennsylvania State Police unsuccessfully attempted to clear the
pickets from the vicinity of the truck . Two pickets were arrested . After two unsuc-
cessful attempts to enter the project, Warner's driver drove the still-loaded truck
away. The same afternoon , Di Francesco sent two loads of crushed stone to the
project by Johnson , a hauling contractor . The driver of the first truck parked the
truck across the street and telephoned . The driver of the second truck parked behind
the first truck across the street from the project . The pickets stated to this driver that
they were on strike and that he should honor the picket line. Fisher , Junior, said to,
the driver that they were not on strike . Shortly, thereafter , the still-loaded trucks
were driven away . No deliveries were made . On September 12 another attempt was.
made by Johnson to deliver a load of Di Francesco stone. The driver drove the
loaded truck away after talking to the pickets.
On the afternoon of September 10, Norman Shirk, an employee of Ronald J. Hick-
man, Inc. , unloaded a piece of excavating equipment called a backhoe from a trailer
drawn by a truck tractor . Hickman was engaged by Viking, the swimming pool sub-
contractor , to excavate the area designated for the pool . When Shirk first arrived"
at the Motor Lodge project, he drove the tractor-trailer off the road near the project
site. He was asked by one of the pickets what he was doing there. He explained
what he had to do , and the picket then said to him that he had better not do any work
there, but keep moving . The picket pointed to a crane on the project , and said that
the engine had been taken out of it and asked Shirk if he would like to have the same
thing happen to the backhoe . Shirk telephoned Ronald Hickman for instructions.
The latter instructed him to unload the backhoe . He thereupon drove the backhoe on
the project and started unloading it. A picket said he did not think he should unload
it. At that time about 100 pickets had surrounded the truck trailer, and about 15 or
20 of them were sitting on it . Shirk completed the unloading and left. He returned
on September ' l l and worked that day.
On September 11, about 7 . 34 a.m ., the four laborers employed by Fisher entered"
the project to begin work . They entered at a point away from the vehicle entrance
near the project office, to avoid the pickets who were located there. As the laborers
approached the project office, Respondent O'Neill , president of Respondent Council,
who was then about 15 feet inside the project , accompanied by 75 to 100 pickets, said
he wanted to talk to them. As one of the laborers started to talk to O'Neill, a picket
punched the laborer , and then another picket punched him. The pickets pressed
forward toward the laborers , and O 'Neill moved backward and said, "Get them and
get them good ." The pickets attacked the laborers . Additional pickets entered the
project. Each 1 of the 4 laborers had to defend himself against 8 to 10 of the pickets,
as well as from stones thrown by the pickets . One of the persons who had been
present in the area being picketed on a number of occasions , in the company of Coun-
cil representatives , attempted to run down a laborer with his automobile . The police
arrived at this point , and the pickets scattered . Four or five of them jumped into'
O'Neill's Cadillac as he drove it away.
On September 11, the pickets threw stones at Vikings' foreman and two laborers,.
and Shirk , Hickman 's backhoe operator , as they excavated the site for the swimming
pool. The laborers watched the stone throwing and gave warnings when the stones
appeared to be coming close. The pickets who were milling around outside the proj-
ect continuously called these employees "scabs." On September 12, about 10 to 11
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a.m , 50 to 60 pickets ran onto the project when a truck of Viking hauling a load of
crushed stone was driven on the project. They approached the truck and appeared
to be about to haul the driver from the cab when they were dispersed by the police
The stone was unloaded. A truck from Suburban Stone hauling crushed stone was
prevented from entering the project at this time. Another truck from Suburban Stone
arrived at the project shortly after The drivers refused to cross the picket line after
the pickets said to them that they were Fisher's employees and weie on strike because
they were fired. When the crushed stone was unloaded from Viking's truck, Viking's
employees and Shirk, Hickman's backhoe operator, began working for the first time
that morning. They had been waiting for the crushed stone. The pickets threw
stones at them. When one hit the backhoe, Shirk turned it off to avoid his losing
control of it with resulting injury to Viking's employees working close by. Shirk
informed Hickman, who was present on the project, that he would not work under
those conditions. Hickman reported Shirk's refusal to Viking and its field superin-
tendent, after viewing the situation on the project, told Viking's employees to cease
working. He also told Hickman to cease working. He said he would get in touch
with him when he needed him. Hickman and Shirk obtained a trailer and returned
to the project to pick up the backhoe. As it was being driven off the project, about
15 pickets, some carrying signs, approached the cab of the truck and asked if they
were leaving. Hickman answered yes. He was then asked if they were leaving for
good When he answered, "No, we'll be back," six of the pickets threw stones at
the equipment Hickman backed back on the project about 50 feet, and he and
Shirk fled from the cab The pickets followed them on to the project still throwing
stones until police stopped them. Two were arrested. Later in the day, Hickman
drove the truck trailer with the backhoe loaded on it from the project, under police
escort. Hickman did no further work for Fisher on this project
At the entrance to the Motor Lodge project on September 19 pickets stated to a
driver of a truck of Johnson, the hauling contractor, containing crushed stone Fisher
ordered from Di Francesco, that they were fired by Fisher and replaced by nonunion
help, and were picketing for that reason. I find from the evidence that the load was
not delivered. On September 19 or 20, two trucks of Warner loaded with concrete
arrived at the project. The drivers were told by pickets they should honor the picket
line because they had been fired by Fisher, and Fisher was using nonunion help to
complete the project. James Fisher, Jr , stated to the drivers that he had never
employed any of the persons on the picket line. Both deliveries were made, but
Fisher, Junior, was informed by Warner later in the day that no further deliveries
would be made. Fisher's contract with Warner called for the delivery of 500 addi-
tional yards of concrete. On September 21 when 10 truckloads of crushed stone were
delivered to the project by General Crushed Stone, pickets also told the drivers they
were fired Fisher employees who had been replaced by nonunion help Five men
from the picket line and Respondent O'Neill pulled the cab of the ninth truck open
and appeared to be about to haul the driver from the cab, when police intervened.
A picket who was with O'Neill was arrested.
On October 4, 1963, a hammer was thrown through the cab window of one of
Felton's trucks driven by Herman Smith, while stopped at a red light, on the way
from Fizzano's plant to the Motor Lodge project with a load of concrete blocks.
Smith stopped, and six or seven unidentified men climbed on the truck Smith fled,
and as he was running he was hit with an iron pipe. On October 8 Smith again
obtained concrete blocks at Fizzano. When he arrived there for a second load, pickets
carrying signs similar to those carried at the Motor Lodge project were patrolling
the entrance and the exit There were three at each location. One of the signs
stated that Felton was failing to meet area standards for wages and working condi-
tions The pickets remained after he left with the second load. Felton ceased work-
ing on the Motor Lodge project on October 23, 1963, although there was work to
be done under his subcontract with Fisher
On October 7 Fisher obtained two truckloads of concrete from Warner's Chester,
Pennsylvania, plant in a rented concrete truck. When the rental was driven to the
Warner plant for the third load, 8 to 10 pickets, who had picketed at the Motor Lodge
project, were patrolling the entrance to the plant. Some of the pickets were carrying
picket signs similar to the ones carried at the Motor Lodge project. They told Glowa,
Warner's plant manager, they were sent to picket by the Council, and if there were
any question to call the Council. James J. Fisher, Jr, was present. The police
opened up the line and the truck rented by Fisher entered the plant. William Foster,
temporary vice president of Council and business agent of a Laborers' local, was
present He asked Glowa not to load Fisher's rental. Glowa received instructions
from Warner's industrial relations department not to load the truck, and informed
Foster of this instruction. Foster said he would remove the pickets, and he did.
BUILDING & CONSTRUCTION TRADES COUNCIL OF PHILA. 1641
Then Glowa was instructed by Warner's industrial relations department to load the
truck. He informed Foster of this instruction, and Foster had the pickets resume
patrolling. Glowa was then instructed by some Warner representative not to load
the Fisher rental. As a result, Fisher obtained no more concrete. When the Fisher
rental was driven off empty, the pickets left.
Varone, the concrete subcontractor, who had started work under his subcontract
on Thursday, October 10, 1963, did not send employees to the Motor Lodge project
on Monday, October 14, 1963, or thereafter. His employees had worked through
Saturday, October 12. On Saturday night, a dynamite bomb was placed in his
garage. When it exploded, it blew out the garage doors, the windows of his house
which adjoined the garage, and the windows of a house across the street. On this
same night, the homes of James Fisher, Jr., and Henry Franks, president of Interna-
tional Motor Lodge, were paint bombed.
C. Respondent's evidence of area standards
Respondents offered documentary evidence of wage rates established under the
Davis-Bacon Act for construction workers in Delaware County, generally prevailing
wage rates for construction workers in public construction in Bucks, Chester, Dela-
ware, and Montgomery Counties, established under the Pennsylvania Prevailing Wage
Act, and wage rates recognized by local unions affiliated with the Council corrected
as of October 21, 1963. I find that the wage rates shown in these three schedules,
allowing for the absence of fringe benefits on the Davis-Bacon schedule, are com-
parable, and reflect the general prevailing minimum wage rates paid to construction
workers in the area of Philadelphia, Bucks, Chester, Delaware, and Montgomery
Counties, Pennsylvania, for public, industrial, and commercial construction. The
evidence appears to indicate that the area rates paid to construction workers in resi-
dential construction are lower. Motel construction is classified as commercial. The
testimony of James J. Fisher, Jr., is that a substantial amount of motel construction in
Delaware County is done by nonunion contractors. Fisher, Junior, also testified that
Fisher's hourly rates are 15 to 20 cents lower than rates paid by union contractors.
The difference represents fringe benefits. Fisher and the other nonunion contractors
do not provide fringe benefits. Testimony by Rosati, vice president of R. and L., the
plumbing contractor, shows that the wages paid by R. and L. to its employees are
less than wages paid to similar employees of union plumbing subcontractors.
D. Analysis and findings and conclusions
On the foregoing findings, I make the following analysis and findings and conclusions.
Pickets peacefully picketed the Motor Lodge project from August 15 to Septem-
ber 10, 1963. Some of the pickets carried signs with the legend that the picketing was
a protest by Council against the "Builder" for failing to meet area standards for
wages and working conditions. Fisher and its employee subcontractors Frohmander
and Smith, Lozinak, and R. and L. and their employees worked on the Motor Lodge
project during the picketing. Capone, the excavating subcontractor, who was oper-
ating his own equipment also worked on this project during the peaceful picketing.
Terry, a union subcontractor, which began work on its subcontract on August 7,
removed its equipment from the project on the evening of August 14, on advance
notice of the picketing. Its employees refused to cross the picket line on the morning
of August 15. Council picketed Warner's Chester, Pennsylvania, plant on October 7,
1963, and at the Fizzano place of business on October 8, 1963, in connection with
the picketing activity at the Motor Lodge project. At least some of the picketing at
Warner's was mass picketing.
There was mass picketing at the Motor Lodge project from September 10 to 16.
During this picketing, the pickets committed acts of violence against general con-
tractor's Fisher's employees at O'Neill's request; threw stones and hollered "scab"
at Rosati, vice president of subcontractor R. and L. and its employee, following
O'Neill's threats to Rosati when he refused to agree to stop working under R. and L.'s
subcontract with Fisher; and threw stones and hollered "scab" at employees of Viking
when it began working under its subcontract with Fisher, and at Hickman and Shirk,
his employee, when they continued to work under Hickman's subcontract with Viking.
R. and L., Viking, and Hickman abandoned working under their subcontracts because
of the violence. Massed pickets prevented deliveries by Warner to Fisher and by
Suburban Stone to Viking. Later, pickets with the assistance of President O'Neill
attempted to prevent with violence a delivery by General Crushed Stone to Fisher.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This latter delivery was made under police protection. The pickets by oral appeals,
against a background of mass picketing and violence, persuaded drivers of Johnson
and Suburban Stone not to make deliveries to Fisher. They stated untruthfully to
the drivers that they had been employees of Fisher and were striking because they
were fired and replaced by nonunion workers. While drivers of Warner made deliv-
eries in spite of these appeals, Warner informed James Fisher, Jr., the following day
that there would be no further deliveries.13
The Council and O'Neill, its president, authorized, instigated, and supervised the
picketing, including the mass picketing. Loughlin, the business manager of Council,
who administers the business of Council and carries out its policy, may not have
voted or participated in executive board action that authorized the picketing, but he
played a leading role in instigating and supervising it. Respondent Goldstein is a
delegate to the Council from a local of the Carpenters, and a representative of the
Philadelphia Metropolitan District of Carpenters, and appeared at times at the
picketing of the Motor Lodge project. The evidence warrants a finding, and I so
find, that O'Neill and Loughlin are agents of the Council. The evidence does not
show any intended relationship between Council and Goldstein as principal and agent,
or of Goldstein's participation in the prepicketing conduct of the affiliated local repre-
sentatives and the picketing by Council, that warrant a finding he is an agent in fact 14
I find that Council is responsible for the picketing, including the mass picketing,
and for the conduct of the pickets that occurred in the course of the picketing.
'O'Neill triggered picket line conduct on September 10 and 11, 1963, by threats, and
participated in picket line violence on September 21, 1963. Council is responsible
for O'Neill's threats and violence.15 I find O'Neill and Loughlin responsible as
respondents, along with Council, for the picketing and picket line conduct. The
basis for this liability is their positions as agents of Council, and their substantial
and active participation in these activities. O'Neill, of course, is also responsible for
13I do not, on this record, attribute to the pickets, either when picketing peacefully or
when picketing in a mass, the destruction of plumbing installed at the Motor Lodge
project by R and L, the plumbing subcontractor, between August 19 and the end of the
workday on September 9, 1963. The presence of Fisher's laborers, one of whom testified
tor General Counsel, at the project by 7:45 a in , on September 10, the earliest time the
pickets were seen arriving and congregating, of Rosati of R and L. by 8 a ni., and of
Fisher, Junior, by 8 a in. ; the discovery of the damage by Rosati sometime between 8 and
8.30 am, which could have been shortly after 8 am.; the failure of any of these per-
sons to give testimony that they saw the damage perpetrated, and the lack of any other
evidence that the damage occurred between 7.45 a in. and when Rosati discovered it, in-
dicates that the damage was done between the end of the workday on September 9 and
7.45 a in of September 10. There is no evidence, direct or circumstantial, to connect the
.pickets, the Council, O'Neill, Loughlin, or Goldstein with the perpetration of the damage
prior to 7.45 am of September 10, or to the unidentified persons who engaged in the
acts of destruction. Respondent Loughlin, business manager of Council, testified in con-
-nection with another matter that picket captains were assigned at 5 30 a.m. However,
this is not enough to connect Respondents with the damage O'Neill told Rosati at 8 a.m.
on September 10 that he was looking for trouble when he refused to agree to stop work.
However, this was a threat of action in the future, rather than an admission against
.interest of something done in the past
I do not, on this record, attribute to the pickets, Council, O'Neill, Loughlin, or Gold-
stein the dynamiting of subcontractor Varone's garage and the paint bombing of James
Fisher's and Frank's homes, on October 12, or the assault on a driver of Felton, one of
,the nonunion subcontractors, on October 4 There is no evidence, direct or circumstantial,
that connects them with these criminal and reprehensible acts, or the unidentified per-
sons who committed them The mass picketing was discontinued on September 16 and,
therefore , so was the malicious mischief that resulted from this type of picketing. The
dynamiting , paint bombing, and assault were committed away from the Motor Lodge
project, the area subjected to the impact of the massed picketing.
14 International Longshoremen's and Warehousemen's Union, C.LO. (Sunset Line and
Twine Co.), 79 NLRB 1487, 1508-1509
n See Selby-Battersby and Company, et al . v. N L.R.B., 259 F. 2d 151, 157 (C.A 4),
cert. denied 359 U S. 952 , International Brotherhood of Electrical Workers, Local 501
(Samuel Langer) v. N.L R.B., 181 F. 2d 34, 38 (C A. 2), affd. 341 U.S. 694; Inter-
national Longshoremen's and Warehousemen's Union, C 1.0. (Sunset Line & Twine Co.),
79 NLRB 1487; -United Furniture Workers, etc., Local 309, CIO (Smith Cabinet Manu-
facturing Company, Inc), 81 NLRB 886; United Fiirnstuie Workers, etc., Local 472,
CIO (Colonial Hardwood Flooring Company, Inc ), 84 NLRB 563.
BUILDING & CONSTRUCTION TRADES COUNCIL OF PHILA. 1643
This threats and violence. The record does not warrant holding Goldstein liable as
an individual respondent. I shall recommend the dismissal of the complaint insofar
as it names him as a separate and individual respondent.16
The conversation in the first week of August between Plumbers Representative Orr,
Laborers Representative Archie, and Carpenters Representative Crawford 17 on the
one hand and Fisher, Junior, and Fisher, Senior, on the other, and on August 11 or
12, 1963, between Fisher, Junior, and representatives, including Orr, Archie, and
Crawford, of the craft unions affiliated with Council representing union workmen
doing the type of work that was to be done by Fisher and subcontractors on the
-Motor Lodge project, show that these craft unions were interested in having Fisher
sign collective-bargaining contracts with Laborers and Carpenters unions affiliated
with Council on behalf of its employees, and revoke the subcontracts it had made
with nonunion subcontractors and subcontract with subcontractors who had
-collective-bargaining contracts with craft unions affiliated with Council. At differ-
ent stages of the first conversation, Fisher was informed that the project would not
get off the ground unless it was union, and was asked how he expected to construct
the Motor Lodge project "nonunion ." On August 16, Cahill, an official of Operat-
ing Engineers, sought to have Fisher sign a contract with that union.
It is clear, therefore, that Council's affiliated locals, and Council by reason of its
relationship with them, had a primary dispute in August 1964 with Fisher and all the
nonunion subcontractors, with which it had subcontracted to do work at the Motor
Lodge project.18 The evidence shows conclusively that Council is continuously
engaged in common cause with its affiliated local unions to have general contractors
recognize these affiliated local unions as collective-bargaining representatives, and to
-subcontract for work at the jobsite only with subcontractors who have collective-
bargaining contracts with these affiliated unions.19 The objects of the visits with
Fisher in August 1963, by Orr, Crawford, Archie, Cahill, and the other representatives
of Council's affiliated locals were to obtain recognition from Fisher and revocation of
,its subcontracts with the nonunion subcontractors. The question is whether Council's
picketing and related conduct starting on or about August 15, 1963, have the same
objects as the conduct of Orr, Crawford, and Archie and the other representatives of
Council's affiliated locals.
The timing of Council's authorization to picket and its commencement of the picket-
ing in relation to the efforts of Orr, Archie, Crawford, Cahill, and the other affiliated
local union representatives to have Fisher agree to recognize Carpenters, Laborers,
and Operating Engineers, and to subcontract only with union subcontractors, and to
the time Terry, the union subcontractor employing members of Wharf and Dock
Builders, a Council affiliate, was working on the project, and had additional work to
do under its subcontract, and the presence at the picket line of Council's officers and
identification, and of Archie, Crawford, and Cahill as Council picket captains, and the
rank-and-file local union members as pickets, disclose that the Council's conduct was
part of a joint venture with its affiliated locals for the objects of the efforts of Orr,
Archie, Crawford, Cahill, and other local union representatives in the first part of
August 1963 in their conversations with Fisher.20
Respondents rely on the picket sign legend which states that the Council is protest-
ing the failure of the "Builder" to meet area standards for wages and working condi-
tions and the evidence that the hourly wages Fisher and R. and L. pay to its employees
are lower than the area rates prevailing for public , industrial , and commercial con-
struction. Respondents contend that the legend and this other evidence show that the
picketing is directed against the failure by Fisher and nonunion subcontractors to meet
,area conditions , and, therefore , is protected primary activity . There is not a scintilla
16 Satchwell Electric Construction Company, Inc ., 128 NLRB 1265 , 1276; International
Union of Operating Engineers , Local 825 , et al. ( Building Contractors Association of
NJ.), 145 NLRB 952; Local No 888, International Union, United Automobile, Aerospace
and Agricultural Implement Workers, etc., et al. ( Miaini Plating Co ), 144 NLRB 897.
17 Crawford identified Orr, Archie, and himself, as representatives of the Council of
Delaware County . Respondent Council is the council for Delaware County They are
'delegates to the Council from their respective locals.
1SWashington -Oregon Shingle Weavers' Dist. Council, etc. ( Sound Shingle Co.), 101
NLRB 1159, enfd 211 F. 2d 149 (C.A. 9).
19 See Seattle District Council of Carpenters , etc. (Cisco Construction Compa ny), 114
NLRB 27.
10 Construction , Shipyard and General Laborers Local 1207 , etc, et al. (Alfred S. Austin
Construction Company, Inc.), 141 NLRB 283, 285-286; Selby-Battersby and Co. et al. v.
N.L R B , sups a.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of evidence that prior to the picketing or during the picketing Respondent Council
or any of its agents communicated orally or by other means with Fisher, the nonunion
subcontractors, or any other person regarding area standards for wages or working
conditions or failure to meet them. On the other hand, there is the independent evi-
dence that the objects of Respondent Council's picketing and other conduct are those
of forcing or requiring Fisher to recognize the Laborers, Carpenters, and Operating
Engineers as bargaining representatives, and to cease doing business with Terry, the
union subcontractor, and the nonunion subcontractors. This defense, therefore, has
no merit. The legend was used to conceal the true nature of the dispute in view of the
Board's holding that picketing in protest of failure to comply with area standards for
wages and working conditions is permissible primary activity.21
I conclude and find that Respondents Council, O'Neill, and Loughlin in violation of
Section 8(b) (7) (C) of the Act picketed and caused to be picketed the Motor Lodge
project and Warner for an object of forcing or requiring Fisher to recognize affiliated
locals of the Laborers, Carpenters, and Operating Engineers as collective-bargaining
representatives of its employees and forcing or requiring Fisher's employees to desig-
nate or accept these locals as collective-bargaining representatives. Not one of these
locals has been certified by the Board to represent Fisher's employees. A petition for
certification under Section 9 of the Act was not filed by them or by Respondents on
their behalf within 30 days of the commencement of the, picketing or thereafter.22
Respondents are not protected by the proviso to Section 8(b)(7)(C) exempting cer-
tain informational picketing from its proscription, as the legend of the picket signs
does not conform to the statutory requirements. A notice that the Council protests
the failure of the "Builder" to meet area standards for wages and working conditions
cannot be equated with a notice that Fisher does not employ members of or have a
collective-bargaining contract with a labor organization.23 In any event, the proviso is
not applicable in view of the stoppage of deliveries by the picketing 'at the Motor
Lodge project and of the pickup or loading at Warner's.24
I have found that Council is a labor organization. Here, Council is liable not only
as a labor organization seeking to force recognition on Fisher and designation on its
employees on behalf of affiliated locals, but also as an agent of labor organizations
seeking the illegal recognition and designation.25 The Laborers, Carpenters, and
Operating Engineers are undisputably labor organizations within the meaning of
Section 2(5) of the Act. '
I conclude and find that Council violated Section 8(b) (4) (i) and (ii) (B) of the
Act by the picketing at Warner's Chester, Pennsylvania, plant on October•7, 1963, and
at the Fizzano place of business on October 8, 1963. Council Vice President Foster's
presence at the Warner plant and his direction of the picketing conduct and request
to Glowa, Warner's plant manager, not to load the'truck rented by Fisher, clearly
disclose that illegal pressure ' was placed on Warner for an object of forcing or requir-
ing Warner to cease doing business with Fisher, or of forcing or requiring- Fisher to
recognize Council's affiliated locals as bargaining representatives of its employees
While it can be contended that Warner, a neutral; was harboring Fisher, the primary
disputant, this position has no weight since the independent evidence discloses the
illegal object.26 Moreover, Moore Dry Dock standards 27 have not been met as the
"See Houston Building and' Construction-Trades Council' (Claude Everett kCbnstruc-
tion Co.), 136 NLRB 321; Local Union No. "741,'United Association of Journeymen and
Apprentices of the'-Plumbing and Pipe Fatting-Indacstry,'etc.`(Keith' Riggs Plumbing and
Heating 'Contractor), 137 NLRB 1125. -
22 Construction, Shipyard and General Laborers Local 1307, etc.,' et al i' (Austin Con-
struction Co ), 141 NLRB 283 ; International Brotherhood of Electrical Workers, Local
Union No. '113, AFL-CIO (I C.G. Electric, Inc); 142 NLRB 1418; Local, 345, Retait
Store Employees Union, etc. (Gene of Syracuse, Inc.), 145 NLRB 1168.
22International'Brotherhood of Electrical Workers, Local Union'No.; 113, etc (I C.G.
Electric), supra ' "
24 Hotel, Motel and Club Employees' Union Local 568 (Marriott Motor Hotels, Inc ),
136 NLRB 759
25 Construction, Shipyard and General Laborers, etc. (Austin Construction Co.)',- supra.
2a Highway 'Truck Drive) s and Helpers, Local No 107, International Brotherhood of
Teamsters, etc. (Riss & Company, Inc ), 130 NLRB 943, enfd. 300 F. 2d 317 (C.A. 3) ;
Seafarers'. International Union of North America, Atlantic and, Gulf District, etc - (Sao-
perior Derrick Corp ), 122 NLRB 52, enfd in part 273 F. 2d 891 (CA. 5), cert. denied
364 U.S 816; Sheet Metal Workers' Intl. Assn., Local Uniosi No. 3 (Siebler Heating &
Air Conditioning, Inc );' 133'NLRB 650 ' 1 . . •
27 Sailors' Union of the Pacific (Moore Dry Dock Company), 92 NLRB 547.
BUILDING & CONSTRUCTION TRADES COUNCIL OF PHILA. 1645
legend of the picket sign in referring to the "Builder" as the one failing to meet area
standards fails to disclose the identity of Fisher, the primary disputant a requisite for
permissible common situs picketing.28 -
One of the picket signs used at Fizzano identified Felton as the one failing to meet
area standards. The other signs identified the disputant as "Builder." Three pickets
were at the entrance and three at the exit of the plant. The pickets remained after
the Felton truck left. Looking at the conduct of the pickets in context, it is clear that
the object was to force Fizzano not to do business with Felton. It would be naivete
at its best to consider Council's picketing at Fizzano as an attempt to appeal to the
nonunion driver of Felton's truck to cease working for Felton rather than for the
object of forcing Fizzano-to cease doing business with Felton. The object of Council's
conduct at Warner's, the day before supports this conclusion.29
Cahill's conversation with James Fisher, Jr., on August 16 and the accompanying
circumstances disclose that the picketing which started on August 15 at the Motor
Lodge project was pressure on Terry, a union subcontractor and a neutral 30 to force
it to cease doing business with Fisher in aid of Council's efforts to unionize Fisher.
Terry on being informed on August 13 by Anderson of Wharf and Dock Builders
that the Council would picket on August 15, removed its equipment from the Motor
Lodge project on the evening of August 15, although it had work -remaining to do
under its subcontract which it had started on August 7. Terry's employees refused to
cross the picket line on August 15. On August 16, Respondent Loughlin, Crawford,
and Archie refused to permit Terry to resume work at the project after such a request
was made by James Fisher, Jr., to Cahill, and the latter transmitted the request to
them. After informing Fisher, Junior, of their decision, Cahill in effect said to him
that the effectiveness of the picketing would be lost when Terry (the only neutral on
the project), finished its subcontract. Terry did no further work at the Motor Lodge
project.
I conclude and find that Respondent Council and Respondents O'Neill and Loughlin,
its agents, in violation of Section 8(b) (4) (i) and (ii) (B) of the Act, picketed the
Motor Lodge project on August 15 and, thereafter,31 and engaged in other acts of
inducement and encouragement of employees of Terry, and threatened, coerced, and
restrained Terry, with an object of forcing or requiring Terry to cease doing business
with Fisher, a primary, disputant, and forcing and requiring Fisher to -recognize or
bargain with Laborers, Carpenters, and Operating Engineers.32 , -
While the Motor Lodge project is a common situs project in view of the subcontract
Terry has with Fisher, the application of the Moore Dry Dock standards (supra), to
determine whether the picketing is permissible common situs picketing obviously
would be misplaced as disclosures by Cahill of the use of Terry the neutral to unionize
Fisher, 'show'that the picketing has' an illegal `secondary object 33 In any event, the,
21 Sheet Metal Workers Intl.'Assn., Local Union-No. 299 (S. M.'Kisner and Sons), 131
NLRB 1196; Plumbers Union.of Nassau County, Local 457, etc: (Bdmat Plumbing and
Heating), 131 NLRB 1243.
29 See Teamsters Local 807 (Sterling Beverages, Inc.), 90 NLRB 401; 'International
Brotherhood of Electrical Workers, Local Union 861 (Plauohe Electric, Inc.), 135 NLRB
250; Chauffeurs, Teamsters and Helpers Local 1,75, etc. (Mofunkin Corporation), 128
NLRB 522, enfd. as modified 294 F. 2d 261 (C.A.D.C.) ; and casescited in footnote 26,
-supra.
To have a common situs situation to which Section 8(b) (4) (B) is applicable, a neu-
tral and unoffending employer,in addition to•the primary employer or,employers.must be
present. N.L.R.B. v. Denver Building and Construction Trades, Council, et, al.a (Gould &
Preisner), 341 U.S. 675.
3'Fisher, Junior, testified he told Cahill that by the following weekend he -intended to
,bring on to the Motor Lodge project pile-driving equipment, and, operate It with Fisher
employees if he was not able-to' arrange with"the Council and the affiliated locals for
Terry to resume work. There is no evidence that he did.
as International Brotherhood of Electrical Workers, Local 501, et al., v N.L R.B., 341
U.S. 694, 701-702; N L.R.B. v. Denver Building and Construction Trades Council, supra;
Sheet Metal Workers International Association, Local Union No. 299„ supra, International
Hodcarmers, Building, etc.,'Local No. 1140 (Gilmore Construction Co), 127 NLRB 541,
•enfd. as modified 285 F. 2d 397, 402-403 (CA. 8) ; Local 810, Steel, Metals, etc, Fabri-
^cetors and Warehousemen (Fein Can Corporation), 131 NLRB 59, enfd. 299 F. 2d 636,
637 (CA. 2) ; Bricklayers, Masons and Plasterers International Union of America, AFL-113
-CIO, et at. (Selby-Battersby & C,ompanvy), 125' NLRB 1179, 11,82; and Sheet Metal
Workers International Association, Local Union No. 3 (Siebler Heating, & Air Condition-
dng, Inc ), 133 NLRB 650.
13 See cases cited supra, footnote 26.
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARIT
primary disputant has not been clearly identified. The disputant is identified on the
picket sign legend as the "Builder." Counsel for Respondents contend that this term
refers to all the nonunion subcontractors as well as Fisher, the general contractor.
Since the term is singular, it might well appear to the reader of the legend that it
refers only to one person. This could be Fisher, the general contractor. It could also
be the persons for whom the construction is being done. To meet Moore Dry Dock
standards, Fisher alone, or Fisher and the subcontractors, have to be clearly identified.
This is not the case 34
As previously stated, except for Terry, the subcontractors working on the Motor
Lodge project during the picketing and the picket line conduct have been nonunion,
and, therefore, primary disputants. Fisher, the general contractor, is also a primary
disputant. The conduct directed against them, except to the extent it has been pressure
against Terry, has been primary activity, to force Fisher to cease doing business with
these subcontractors, and the other nonunion subcontractors, or to recognize Laborers,
Carpenters, and Operating Engineers, or to force the nonunion subcontractors to cease
doing business with Fisher. This conduct is not proscribed by Section 8(b) (4) (i) and
(ii)(B) of the Act. This section is intended to protect only secondary or neutral
employers, not primary employers or disputants.35 The appeals, by picketing and
other conduct, to drivers of Warner, Johnson, and other suppliers and haulers to per-
suade them not to make deliveries to Fisher and Viking is likewise not proscribed by
Section 8(b)(4)(i) and (ii)(B). This is conduct incidental to the primary activity
directed against Fisher and the nonunion subcontractors.36 I find and conclude, there-
fore, that the picketing and picket line conduct, including threats and violence of
Respondent Council and Respondents O'Neill and Loughlin, its agents, at the Motor
Lodge project, except insofar as they have been pressure against Terry, the secondary
and neutral employer, are not violative of Section 8(b) (4) (i) and (ii) (B) of the Act.
This does not mean that these acts are free of the restraints of police power or of other
provisions of Section 8(b) of the Act.37
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents Council, O'Neill, and Loughlin set forth in section III,_
above, in connection with the business operations of Fisher have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and tend'
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondents Council, O'Neill, and Loughlin engaged in unfair
labor practices, it will be recommended that they cease and desist therefrom, and
take certain affirmative action of the type conventionally ordered in such cases to
effectuate the purposes of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, I make-
the following:
CONCLUSIONS OF LAW
1. Fisher Construction Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Fisher Construction Company, and subcontractors J. H. Terry and Co., R. and'
L. Plumbing Contractor, Viking Aquatics Pools, Inc., and other subcontractors doing
work under subcontracts at The construction site of International Motor Lodge, or
having subcontracts with Fisher for work at this site, are engaged in commerce or in
an industry affecting commerce within the meaning of Sections 8(b) (4) (i) and
(ii) (B) and 501(1) of the Act.
3. Respondent Building & Construction Trades Council of Philadelphia and Vicin-
ity, AFL-CIO, and its affiliated local unions are labor organizations within the mean-
34 See cases cited supra, footnote 28.
&5 V.L.R.B. v. Denver Building and Construction Trades Council, supra; Highway
Tri"k Drivers and Helpers, Local 107, etc. (Sterling Wire Products Company), 137
NLRB 1330.
36International Brotherhood of Teamsters, Chauffeurs, etc., et al. (Alexander Ware
house tO Sales Company), 128 NLRB 916; Chauffeurs, Teamsters and Helpers, Local 175
v. N.L.R.B. (McJunkln Corp.), 294 F. 2d 261 reversing in part 128 NLRB'
522; United Steelworkers of America v. N.L.R.B. and Carrier Corp., 376 U.S. 492, 499..
87 See United Steelworkers v. N.L.R.B., supra, at 502.
BUILDING & CONSTRUCTION TRADES COUNCIL OF PHILA. 1647
ing of Section 2(5) of the Act, and Respondent Council is an agent of its affiliated
locals in their efforts to obtain recognition from employers, and designation from
employees, as collective-bargaining representatives, and to limit the assignment of
work at construction jobsites by these employers to members of the affiliated local
unions.
4. Respondent James Loughlin and Respondent James O'Neill are agents of
Respondent Council.
5. By picketing or causing to be picketed, including the picket line conduct, the site
of the construction of the International Motor Lodge in Delaware County, Pennsyl-
vania, for an object of forcing or requiring Fisher Construction Company to recognize
or bargain with Laborers, Carpenters, and Operating Engineers local unions affiliated
with Respondent Council as the representatives of its employees, although the
Respondent Council or these local unions are not certified as their collective -bargaining
representatives, without a petition having been filed within 30 days after the com-
mencement of such picketing, Respondent Council and Respondents James Loughlin
and James O'Neill, its agents, have engaged in unfair labor practices within the mean-
ing of Section 8(b) (7) (C) of the Act.
6. By the peaceful and mass picketing and picket line conduct including threats
and violence at the site of the construction of the International Motor Lodge in Dela-
ware County, Pennsylvania, Respondent Council and Respondents Loughlin and
O'Neill , its agents , in violation of Section 8(b) (4) (i ) and (ii ) (B) of the Act , induced
and encouraged employees of J. H. Terry and Co. and threatened, coerced, and
restrained J. H. Terry and Co. for an object of forcing J. H. Terry and Co. to cease
doing business with Fisher Construction Company, and to refuse to resume work at
this construction site under its subcontract with Fisher , or of forcing Fisher to recog-
nize its affiliated local unions of Laborers , Carpenters , and Operating Engineers as
bargaining representatives, although they are not certified under Section 9 of the Act.
7. Respondent Council and Respondents Loughlin and O'Neill, its agents , in viola-
tion of Section 8(b) (4) (i ) and (ii ) (B) of the Act , induced and encouraged employees
of Warner Concrete Company at its Chester , Pennsylvania, plant, and threatened,
coerced , and restrained Warner at this plant , for an object of forcing or requiring
Warner to cease doing business with Fisher Construction Company, or of forcing
Fisher to recognize its affiliated local unions of Laborers, Carpenters , and Operating
Engineers , as bargaining representatives although they are not certified under Section
9 of the Act.
8. Respondent Council and Respondents Loughlin and O 'Neill, its agents , in viola-
tion of Section 8 (b) (4) (i) and (ii) (B) of the Act, induced and encouraged employees
of Fizzano Bros. Concrete Products , Inc., and threatened , coerced , and restrained this
employer, for an object of forcing or requiring Fizzano to cease doing business with
Felton Construction Company.
9. The picketing and picket line conduct of Respondent Council and Respondents
Loughlin and O 'Neill, its agents , at the site of the construction of the International
Motor Lodge in Delaware County, Pennsylvania , directed against Fisher Construction
Company, R. and L. Plumbing Contractors, John Capone, Viking Aquatics Pools,
Inc., John Lozinak , and Frohmander and Smith , and their employees , and suppliers
Warner Concrete Company, Di Francesco & Sons, and Johnson the hauling contractor,
and their employees , except to the extent it induced and encouraged employees of
J. H. Terry and Co. and threatened, coerced, and restrained J. H. Terry and Co., did
not violate Section 8 (b) (4) (i) and ( ii) (B) of the Act.
10. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of the Act.
Upon the foregoing findings of fact and conclusions of law, and pursuant to Section
10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
The Building & Construction Trades Council of Philadelphia and Vicinity, AFL-
CIO, James O'Neill , its president , and James Loughlin , its business manager, and all
its other officers, representatives , agents, and successors , shall:
1. Cease and desist from:
(a) Picketing, or causing to be picketed , or threatening to picket or cause to be
picketed, the construction site of International Motor Lodge in Delaware County,
Pennsylvania , and Warner Concrete Company, Chester, Pennsylvania, where an object
thereof is to force or require Fisher Construction Company to recognize or bargain
with affiliated local unions of Laborers , Carpenters , and Operating Engineers as the
representatives of its employees or to bargain with Council on their behalf, or to force
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or require the employees of Fisher to accept or select these affiliated local unions of
Council as their collective-bargaining representatives, or the Council as their agent, in
violation of Section 8(b) (7) (C) of the Act.
(b) (1) Engaging in, or inducing or encouraging any individual employed by J. H.
Terry and Co., Warner Concrete Company, or Fizzano Bros. Concrete Products, Inc.,
or any other neutral or secondary employer engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the course of his employment
to use, manufacture, process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any services; or (2) threatening,
coercing, or restraining J. H. Terry and Co., Warner Concrete Company, or Fizzano
Bros. Concrete Products, Inc., or any other neutral or secondary employer engaged in
commerce or in an industry affecting commerce, where, in either case, an object
thereof is to force or require Terry, Warner, or other said neutral or secondary
employer to cease doing business with Fisher Construction Company, or to force or
require Fizzano or other neutral or secondary employers to cease doing business with
Felton Construction Company, or to force or require Fisher to recognize or bargain
with the local unions of Laborers, Carpenters, and Operating Engineers affiliated with
Council, as the representatives of Fisher's employees, or to bargain with Council as
the agent of such local unions, unless these local union affiliates of Council are certified
as the representatives of such employees under Section 9 of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Post in conspicuous places at its offices, meeting halls, and at all places where
Respondent Council customarily posts its notices, copies of the attached notice marked
"Appendix." 38 Copies of said notice, to be furnished by the Regional Director for
Region 4, shall, after being duly signed by Respondent Council's authorized repre-
sentative and Respondent O'Neill and Respondent Loughlin, be posted by Respondents
immediately upon receipt thereof, and be maintained by them for 60 consecutive days
thereafter. Reasonable steps shall be taken to insure that such notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 4, in writing, within 20 days from the
date of the service of this Trial Examiner's Decision and Recommended Order, what
steps the Respondents have taken to comply herewith.39
It is recommended that the complaint be dismissed insofar as it names Ed Goldstein
as a separate and individual respondent , and alleges as unfair labor practices violative
of Section 8(b)(4)(i) and (ii)(B) of the Act conduct found not to be violative of
that Section.
It is further recommended that unless on or before 20 days from the date of receipt
of this Decision and Recommended Order the Respondents have notified said Regional
Director, in writing, that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the action aforesaid.
38 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
38 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , In writing, within 10 days from
the date of this Order, what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE To ALL OFFICERS OF AND DELEGATES TO THE BUILDING & CONSTRUCTION
TRADES COUNCIL OF PHILADELPHIA AND VICINITY, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended , we hereby notify you that:
WE WILL NOT, under conditions prohibited by Section 8(b) (7) (C ) of the Act,
picket or cause to be picketed , or threaten to picket or caused to be picketed, the
construction site of the International Motel in Delaware County , Pennsylvania, or
Warner Concrete Company, where an object thereof is to force or require Fisher
Construction Company to recognize or bargain with local unions of Laborers,
Carpenters , and Operating Engineers affiliated with The Building and Construc-
tion Trades Council of Philadelphia and Vicinity , AFL-CIO, as the representa-
MALLORY PLASTICS CO., DIV. OF P. R. MALLORY & CO. 1649
tives of its employees , or the Council as the agent of these local unions, or to
force or require these employees to designate or accept the local unions as their
collective-bargaining representatives , or the Council as their agent.
WE WILL NOT engage in or induce or encourage any individual employed by
J. H. Terry and Co., Warner Concrete Company, or Fizzano Bros. Concrete
Products , Inc., or any other neutral or secondary employer , to engage in a strike
or a refusal in the course of his employment to use, manufacture , process, trans-
port , or otherwise handle or work on any goods , articles, materials , or commodi-
ties , or to perform any services , or threaten , coerce, or restrain J. H. Terry and
Co., Warner Concrete Company, or Fizzano Bros. Concrete Products , Inc., or
any other neutral or secondary employer engaged in commerce or in an industry
affecting commerce , where in either case, an object thereof is to force or require
Terry, Warner, or other neutral or secondary employer to cease doing business
with Fisher Construction Company, or to force or require Fizzano , or other
neutral or secondary employer, to cease doing business with Felton Construction
Company , or to force or require Fisher to recognize or bargain with the local
unions of Laborers , Carpenters , and Operating Engineers affiliated with Council
as the representatives of Fisher 's employees , or to bargain with Council as the
agent of these local unions , unless they are certified as the representatives of
Fisher's employees under Section 9 of the Act.
THE BUILDING & CONSTRUCTION TRADES COUNCIL OF
PHILADELPHIA AND VICINITY , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
Dated------------------- By------------------------------------------
(James O'Neill , President , The Building and Construc-
tion Trades Council of Philadelphia and Vicinity,
AFL-CIO)
Dated------------------- By-------------------------------------------
(James Loughlin , Business Manager , The Building and
Construction Trades Council of Philadelphia and
Vicinity, AFL-CIO)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Interested persons may communicate directly with the Board 's Regional Office, 1700
Bankers Securities Building, Philadelphia , Pennsylvania , Telephone No. Pennypacker
5-2612, if they have any question concerning this notice or compliance with its
provisions.
Mallory Plastics Company , a division of P. R . Mallory & Co.,
Inc.' and Textile Workers Union of America . Cases Nos. 13-
CA-6032 and 13-RC-9739. December 11, 1964
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On September 2, 1964, Trial Examiner George A. Downing issued
his Decision in the above-entitled consolidated proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Decision. He also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com
" The Respondent 's name herein appears as amended at the hearing.
149 NLRB No. 138.
770-076--65--vol. 149-105