West Kentucky Trades Council

National Labor Relations Board - Board Decisions

Jul 28, 1971

192 N.L.R.B. 272 (N.L.R.B. 1971)

272 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
West , Kentucky , Building , & Construction Trades
,.Council, ;AFL-CIO aced Daniel Construction„Com-
pany, Inc., d/b/a Daniel Construction Company of
,Kentucky. Case 9-CC-587 .-
,July 28, -1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING; AND - BROWN
On April 16, 1971, Trial Examiner David S.
Davidson ,issued, his Decision in the above-entitled
proceeding,,findingithat Respondent had engaged, in
certain unfair' labor practices within the meaning of
'the, National Labor-Relation's Act, as^amended,'and
recommending'that,it'cease and desist therefrom and
take "certain` `affirmative' action'` as set forth in- the
attached Trial' Examiner's Decision. The Trial Exam=
finer""also found that the' Respondent had not engaged
in, certain other unfair labor practices as alleged in the
complaint. Thereafter, the -Charging. Party, filed
exceptions. to the Trial Examiner-'s Decision and a
supporting, brief.,
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor-Relations Board has delegated its
powers in connection'with this case to a three-member
TRIAL EXAMINER'S DECISION
STATEMENT OF THE "CASE '
DAVID S. DAVIDSON, - Trial Examiner : Pursuant to a
charge filed on October 23, 1970, by Daniel Construction
Company, Inc., d/b/a- Daniel Construction Company of
Kentucky, hereinafter referred Was Daniel, a complaint
issued on December 3, 1970. The complaint' alleged that in
furtherance of a labor dispute with Daniel and certain of its
subcontractors , Respondent ' picketed , a jobsite at which
Daniel and subcontractors were - engaged at locations-not
reasonably close to the 'situs of the dispute with picket, signs
which failed to identify the employers with whom
Respondent had its dispute, thereby inducing and encour-
aging ,individuals employed by other contractors 'to engage
in`a strike or refusal to perform services at the jobsite-and
threatening and restraining the other ' contractors 'with' an
object of forcing or requiring the contractors to cease doing
business with one " another and forcing - or requiring
agreements with, labor organizations affiliated I with
Respondent . The complaint alleges that -Respondent
thereby violated Section 8(bX4)(i) and (iiXB) of the Act. In
its answer Respondent denies the commission of any unfair
labor practices. I ^ ' '-
A hearing was held before mein Paducah, Kentucky, on
February 11 and 12, 1971. At the close of'the-hearing the
parties were given leave to file briefs which have been
received from all the parties.
Upon the basis of the entire record in this case and from
'my observation of the witnesses and their demeanor, I
make the following:
a'le'r FINDINGS AND CONCLUSIONSp
The, Board has-reviewed the rulings of the Trial
Examiner made, at the hearing and finds that no
prejudicial error was co nmitted.-Jhe' rulings ' are
hereby affirmed.`The'Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, West Kentucky Building '& Con-
struction Trades Council, AFL-CIO , its officers,
agents, and representatives , shall take the action set
forth in the Trial Examiner's recommended Order.
i Chairman Miller concurs, except that, with respect to the dismissal of
the allegation concerning the post-November 19 picketing, he does not rely
on the failure of the reserved gate signs specifically to mention "suppliers."
In view of the absence of exceptions Member Fanning adopts pro forma
the Trial Examiner's finding that Respondent's picketing between October
7 and November 19, 1970, was violative of the Act.
1. THE BUSINESS OF THE - EMPLOYERS
Daniel, a South Carolina corporation with its principal
office located at Greenville, South Carolina, is engaged as a
general contractor in the building and construction
industry throughout the United States. During the 12
months prior to the issuance of the complaint, a
representative period , Daniel purchased goods , supplies,
and materials valued in excess of $50,000 , which it caused
to be shipped in interstate commerce directly to job or
construction sites located outside the State of South
Carolina.
Mid-South Construction; Southern Contractors Service;
Bryant Electric Company; Mills Engineering Company; P.
B. Cloud, Jr., Masonry Contractor, Inc.; National Fence
Company; Elwin G. Smith & Co., Inc.; Tenn-Ky
Automatic Sprinkler Co.; and Lawrenceburg Decorators,
Inc.,' are contractors engaged in the building and
construction industry in the State of Kentucky and
elsewhere. Each had subcontracts with Daniel for the
performance of work as set forth in more detail in the
statement of facts below.
1 An apparent inadvertent error in Respondent 's name in the caption of
the complaint has been corrected herein.
2 These contractors are referred to hereinafter as Mid -South, Southern,
Bryant, Mills, Cloud, National, Smith, Tenn-Ky, and Lawrenceburg,
respectively.
192 NLRB No. 53
WEST KENTUCKY TRADES COUNCIL
I find that Daniel, Mid-South, Southern, Bryant, Mills,
Cloud, National, Smith, Tenn-Ky, and Lawrenceburg are
employers engaged in commerce or operations affecting
commerce within the meaning of the Act, and that-it will
effectuate the policies of the 'Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Respondent, West Kentucky Building & Construction
Trades Council,, AFL-CIO, is a labor organization within,
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
During the summer of 1970 Daniel had a general contract
for the construction of a new manufacturing facility for
Ingersoll Rand Corporation at Mayfield, Kentucky. Daniel
undertook to perform some of the work on the project with
its own employees and also at various times during the
summer entered -into subcontracts for the performance of
various portions of the job:-Daniel-subcontracted asphalt
paving work to Mid-South, structural steep erection work to
Southern, electrical work to Bryant, mechanical work to
Mills, masonry work to Cloud, fence work to National,
furnishing and erection of metal siding to Smith, installa-
tion of an underground fire protection system to Tenn-Ky,
and painting work to Lawrenceburg.
Daniel, Mid-South, Southern,. Bryant, and Mills did not
have collective-bargaining agreements with Respondent or
any labor - organizations with which- it is affiliated. It is
admitted, that at all times material, Respondent had a labor
dispute with these five contractors.
The construction site is located on a tract of land south of
the city of Mayfield and south of U.S. Highway 45. The
Ingersoll Rand property is bounded on the east by Dodson
Cemetery Road` and on the west by Santa Claus Lane, both
of which run north to intersect Highway 45. At the time of
the events material herein, the portion of the tract on which
the plant was being built was enclosed by a fence, and there
were three gates in the fence. One gate was at the west side
of the site and opened onto a driveway which exited onto
Santa Claus Lane. The intersection of the driveway and
Santa Claus Lane was approximately 300 to 350 feet-south
of Highway 45. Santa Claus Lane dead ends south of the
driveway. North of the driveway and on the west side of
Santa Claus Lane were the premises of Consolidated
Novelty Co. Consistent with notation used on an exhibit in
evidence, the intersection of the driveway with Santa Claus
Lane will be referred to herein as location 5 and the
intersection of Santa Claus Lane with Highway 45 will be
referred to, as location 1.
The other two gates were at the east end of the site and
opened onto parallel driveways which exited into Donson
Cemetery Road. The distance along Dodson Cemetery
Road from Highway 45 to the northernmost of the two
3 The Ingersoll Rand property hue extenos to Dodson Cemetery Road
on the east -and to Santa Claus Lane on the west at the points where the
driveways meet these roads. The property- line extends almost to the
railroad right-of-way at the intersection of Santa Claus Lane and Highway
273
driveways was approximately one-half mile, and the second
driveway was a short distance south of the first. Again
consistent with designations , used ' at - the hearing, the
intersection of Dondson Cemetery Road with Highway 45
will be referred to as location 2, the intersection of Dodson
Cemetery Road with the; northernmost driveway will be
referred to as location 3, and the intersection of Dodson
Cemetery Road with the other driveway will be referred to
as location 4.
The distance between locations 1 and 21s approximately
three-fourths of a mile. In order to travelfron; location 5,
the entrance to the gate on the west side of "the plant, to
locations 3 or 4, the entrances to the gates on the east side
of the plant, it is necessary to travel over Santa Clause
Lane, Highway 45, and Dodson Cemetery Road, unless, one
travels entirely within the`,jobsite. Parallel to Highway 45
and just south of it between the highway andthe'Ingersoll
Rand property is a railroad track and right-0f_' way'.3
In late August or early September 1970, Wayne Larson,
president of - Respondent and -business agent for the
Ironworkers" Union, accompanied by business agents of
several of Respondent's other affiliates,,. visited the jobsite
where work had commenced and spoke with Job Superin-
tendent Hood. They, asked if^Daniel had let any contracts
for the job and, if so, to whom. Hood replied that he did not
know as the contracts were 'let at another location. In
response to questions as the contracts for specific kinds of
work, Hood identified the steel contractor and said that the
electrical and mechanical contracts had not „yet been let.
They also discussed who had bid on various contracts.
On October 7, Respondent posted pickets at, locations 1
and 2 carrying signs which read:
The construction work on this project
is not being built under
COLLECTIVE BARGAINING
AGREEMENT OF
AFFILIATED LOCAL UNIONS
OF THE WEST KY. BUILDING
TRADES COUNCIL
W. Ky. BUILDING TR.
COUNCIL 1 ' '
Affixed to the back of these signs was another sign which
read:
45, runs northwest parallel to the railroad tracks for approximately one-
fourth mile, and then runs due east to Dodson Road, meeting Dodson
Road closer to location 3 than to location 2.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE- ARE NOT
ASKING OTHER
EMPLOYEES- TO
HONOR THIS
PICKET LINE
WEST KENTUCKY BUILDING AND
CONSTRUCTION TRADES COUNCIL
The second sign was carried so that it could be read only
by persons leaving the construction site.
The picketing with these signs continued at these two
locations -until approximately November 19. During the
second ' week of the'picketing an additional sign was used
which read: 4
SOME OF, THE WORK BEING
PERFORMED ON THIS JOB
IS NOT BEING DONE UNDER
The
WAGE AND,FRINGE BENEFITS
OF THE AFFILIATED, I LOCAL
UNIONS OF' THE WEST KY.
BLDG. TRADES COUNCIL.
SIGNED W. KY. BLDG.
TR.
On October 16, 1970, Daniel established separate gates
for the union and nonunion contractors on the job. At
location 3 on Dodson Cemetery Road, Daniel posted a sign
which stated, "This entrance for the following contractors
only" and there appeared below a list of the nonunion
contractors on the job.5 A similar sign was placed at
location 5 on Santa Claus Lane with a list of the union
contractors on the job. The subcontractors were all
informed of the establishment of the separate gates and
were told to instruct their employees and suppliers to abide
by these restrictions. In addition, Daniel instructed its own
personnel to watch the traffic to make certain that the
proper gates were used .6
On October 19, Daniel sent a telegram to Respondent
which was received on the following morning and stated:
Separate gate has been established on the Ingersoll-
Rand project at Mayfield, Kentucky, for all contractors
not signatory to agreements with local unions affiliated
with West Kentucky Building and Construction Trades
4 Twice , m his brief , counsel for the General Counsel asserts that the
parties agreed that the wording on this sign was unlawful. I find no
evidence of such agreement in the record before me.
5 This finding is based on the testimony of Devon Hobby , Damel's
project manager. No pictures or replicas of the signs were placed in
evidence.
6 No sign was posted at location 4 . However, Respondent never
Council. Demand that you restrict picketing activity to
this separate gate. This represents'formal notice.
Respondent did not change the location of,the picketing
following receipt of this telegram.
On-November ,9, a conference was held concerning a
petition for a 10(1) injunction in this case as a result of
which the parties entered into a stipulation in lieu of an
injunction with respect to future picketing- at the jobsite. A
few days later, on November 13, Respondent removed the
pickets from location 1, and thereafter did not picket at any
location in the vicinity of the gate reserved for use by the
union contractors. Respondent continued to picket at
location 2 and on some occasions thereafter also picketed
near location 3.
Around November 19, original signs used by Respondent
were replaced by new signs.7 On one side, the new sign
read:
"THE EMPLOYEES" OF DANIEL CONSTRUC-
TION COMPANY, INC., MID-SOUTH CON-
STRUCTION, SOUTHERN 'CONTRACTORS
SERVICE, BRYANT ELECTRIC-COMPANY AND
MILLS ENGINEERING ' COMPANY' ARE -NOT
RECEIVING WAGES" AND " FRINGE BENEFITS-
NEGOTIATED UNDER COLLECTIVE BARGAIN-
ING AGREEMENTS- OF AFFILIATED LOCAL
UNIONS-OF THE WEST KENTUCKY BUILDING
AND CONSTRUCTION TRADES COUNCIL"
On the other side, the sign read:
"WE ARE NOT REQUESTING EMPLOYEES OF
NEUTRAL EMPLOYERS TO REFUSE TO WORK
ON THIS PROJECT. WE ARE PICKETING ' DAN
IEL CONSTRUCTION COMPANY, INC., ', MID-
SOUTH CONSTRUCTION, SOUTHERN CON-
TRACTORS SERVICE, BRYANT ELECTRIC COM-
PANY AND MILLS ' ENGINEERING COMPANY
ONLY."
However, the sign quoted above ,beginning, with the
words "Some of the work" has'also been used from time to
time at the jobsitesince November 19. On the day before
the hearing that sign ' was observed leaning against a car
parked on the west side of Dodson Cemetery Road just
north of location 3. Placed or carried near it were also the
signs put in-use on November 19.On the day of the hearing
the "Some of, the work ...." sign was observed propped
up against the windshield of a car parked on the east side of
Dodson Cemetery Road just south of the railroad tracks
near location 2. There is no evidence that any other, sign,
was displayed in conjunction with it'at that time.8 There is
no evidence also that either of the signs used on the first day
of the picketing was displayed after November 19.
Apart from what appears in ,several pictures taken on
several dates'after the picketing began, there is only the
testimony of T. Ed Holden, vice president and assistant
business manager of Laborers' Local 1214 as to the precise
places at which 'Respondent picketed near locations, 1 and
picketed at location 4 and its right to do so is not at issue herem.
7 Hobby testified that the signs were changed 10 days to 2 weekv after
the November 9 conference. The stipulation reached at the conference was
executed on November 19.
8 There is evidence that at various times during the picketing, pickets
stuck signposts in the ground or propped them against parked cars instead
of patrolling and carrying the signs.
WEST KENTUCKY TRADES COUNCIL
2., According to Holden, at location 1 the pickets were
placed-,between Highway 45 and the railroad tracks along
Santa Claus Lane, and at location 2 the pickets were placed
on the plant side of the railroad tracks on Dodson
Cemetery Road. The photographs show that on November
13 picket signs were placed in the ground at location 2
facing Highway 45 on a traffic island between the railroad
tracks and Highway 45. The evidence is not clear as to
which side of- the railroad tracks ,earlier pictures of signs
depict, and the picture of the car taken on the day of the
hearing near location 2 shows the car parked some distance
south of the railroad tracks.
There is evidence that at least some of the union
contractors had work to perform at the jobsite at all times
during the period of the picketing. Thus,, at the time the
picketing began Cloud, the masonry contractor, was
performing work- at the site, and Cloud's employees
continued to have work which they have performed at the
site through the date of the hearing.
National, the fence contractor,, finished a portion of the
work on its contract either before the picketing began or
shortly thereafter. Although additional work remained on
its contract, the time .for resumption , of its work had not
arrived at the time of the hearing.
` Tenn-Ky, the `fire protection system contractor, was
scheduled to start work 2 or 3 weeks after the picketing
began, but "did not start until after November 13 .9 It had
completed -90 percent of its work on one contract as of the
time of the hearing. Tenn-Ky had a second contract on
which it was scheduled to start work a few weeks after the
hearing. -
Lawrenceburg finished a portion of its work before the
picketing started ' or ` shortly thereafter. Lawrenceburg
returned to the job to start another portion of its contract
during the week of the hearing.
Smith, the contractor for furnishing and erecting metal
siding, also had work available during the period of the
picketing. Smith delivered some materials to the job, and its
Superintendent Davis inspected the jobsite and determined
that the job -was ready for the erection of the siding.
However, around October 15, Davis told Project Manager
Hobby that he' could not man the job, and thereafter asked
Daniel to make other arrangements for the erection of the
siding . On November 3, the erection portion of Smith's
contract was canceled, and Daniel awarded 'the work to
Southern.
Although the evidence is less specific as to the dates on
which the various nonunion contractors had work to
perform on the job, it is clear that Daniel had employees on
the job at all times, and a log kept at the nonunion gate
after November 9, 1970, shows frequent entries for
employees of Southern, Mills, Bryant, Mid-South, and
Daniel.
There is evidence that the picketing had some effect upon
deliveries to the jobsite. According to Hobby, 2 weeks after
the start of the picketing Cloud, a union contractor, had
some difficulties with deliveries because of the picketing,
9 According to Robby, the delay was caused by the picketing.
A° Sailors' Union of the Pacific AFL (Moore Doy Dock Company), 92
NLRB 547; Building & Construction Trades Council of New Orleans,
AFL-CIO (Markwell and Hartz, Inc.), 155 NLRB 319, enfd. 387 F.2d 79
(C.A. 5).
275
but he -could not be specific as to other incidents relating to
other contractors. Cloud testified to three incidents relating
to other contractors. Cloud testified to three incidents
involving refusals of drivers to cross the picket line between
the start of the picketing and the week of October 20. Since
then Cloud has received deliveries regularly through the
gate designated for use by the-union contractors. Hood
testified as to two other refusals of drivers to cross the
picket line. One, involving a delivery for Tenn-Ky, occurred
on October 15, and Hood could not recall when'the other,
involving a delivery for Smith, occurred.
B. Concluding Findings
The complaint alleges that the picketing induced and
encouraged individuals employed by Cloud, Smith, and
other employers to engage in a strike or refusal in the course
of their employment to perform services for their respective
employers at the Ingersoll Rand site and threatened,
coerced, and restrained Cloud, Smith, and other employers
because Respondent picketed the construction site at a
location not reasonably close to the situsof the dispute with
picket signs which failed to identify any of the employers
with whom it had a dispute. The complaint alleges that the
objects of this conduct were (a) to force or require Cloud,
Smith, and other persons to cease doing business with
Daniel, (b) to force or require Daniel to cease doing
business with Mid-South, Southern, Bryant, and Mills, and
(c) to force or require Daniel, Mid-South, Southern, Bryant,
and Mills to employ members of and/or enter into
collective-bargaining agreements with labor organizations
which are affiliated with or are constituent members of
Respondent.
The applicable standards for determining the legality of
common situs picketing, as occurred in this case, were first
set forth by the Board in the Moore Dry Dock case.10 As the
Board has stated, these standards are not mechanically
applied but are flexibly used as aids in determining the
underlying question of whether the statute has been
violated-" The purpose of the standards evolved for
common situs picketing is to strike a balance between the
competing interests protected by the Act of preserving the
right of labor organizations to bring pressure to bear on
employers with whom they have primary disputes while at
the same time shielding neutral employers and others from
pressures in controversied not their own. Thus the aim is
"to minimize [common situs picketing's I impact on neutral
employees insofar as this can be done without substantial
impairment of the effectiveness of the picketing in reaching
the primary employees." 12
The Moore Dry Dock decision, to be applied in accord
with these principles, provides that picketing of a common
sites occupied by both primary and neutral employers is
lawful if the following conditions are met:
(a) The picketing is strictly limited to times when the
situs of the dispute is located on the picketed site;
11 International Brotherhood of Electrical Workers, Local Union $61
(Plauche Electric, Inc.), 135 NLRB 250, 255; Millwrights Local Union No.
1102, etc. (Dobson Heavy_Haul, Inc.) 155 NLRB 1305.
12 Retail Fruit & Vegetable Clerks Union, Local 1017 ei al. (Crystal
Palace Market), 116 NLRB 856, 859, enfd. 249 F.2d 591 (C.A. 9).
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) at the time of the picketing the primary employer is
engaged in its normal business at that site;
(c) the picketing is limited to places reasonably close to
the location off the sites of the dispute; and
(d) the picketing discloses clearly that the dispute is with
the primary employer.
Here there is no dispute that the first two of these
conditions were met. However, in dispute is whether the
last two, conditions were met by the picketing at any time.
For purposes of-analysis the picketing from October 7
through November 19 will be considered separately from
the picketing after November 19.
During the period from October 7 through November 19
Respondent utilized three signs. The first sign used at the
.outset of the picketing flatly stated that the work on the
project was not being. performed under agreement with
Respondent's affiliates. This sign made no attempt to
identify the contractors with whom Respondent had its
dispute and could only have been construed by those
reading it to apply to all work being performed at the site.
While a second sign, attached to the reverse side of the first
sign, _ stated that Respondent was, not asking "other"
employees to honor the picket line, the second sign could at
best create confusion since the absence o'any identifica-
tion of the primary employers left any reader in the dark as
to who "other" employees were. Moreover, the testimony is
uncontradicted that the second sign was visible only to
persons as they left the site and thus could not have had any
mitigating, effect upon the impact of the first sign upon
those approaching the site.
The third sign, which came into use during the second
week of the picketing, was displayed in conjunction with
the first two signs. While it indicated that the dispute was
with only some of the contractors on the job, like the first
sign it failed to identify the contractors with whom
Respondent had its dispute.
All three signs were displayed at both roads leading to the
jobsite so that all persons entering the jobsite were exposed
to them as they traveled to the job. Wholly apart from
whether the limitations upon the use of the gates after
October 16 would otherwise have been sufficient to restrict
Respondent's right to picket in the vicinity of the west
entrance to the plant , as the signs used at both approaches
to, the plant did not identify the primary employers, all
picketing at both locations during the entire period between
October 7 and November 19 failed to satisfy the fourth
Moore Dry Dock condition.13
By failing to identify the primary employers with whom it
had a dispute on the signs, Respondent's picketing not only
tended to induce neutral employees to honor the picket line
is Respondent contends that the failure to identify the primary
employers stemmed from inadvertence or ignorance as to their identity and
was promptly rectified after November 9 when Daniel identified the
,contractors on the job. However, the evidence shows no attempt by
Respondent between October 7 and November 9 to learn the identity of
the contractors and no change in the signs after October 16 when the
contractor's names were posted at locations 3 and 5 until after the
conference in conjunction with the petition for an injunction. Accordingly,
I reject this contention in Respondent's defense.
t+ The evidence establishes that aoud,- Smith, and Tenn-Ky either
performed work or were scheduled to perform work at the site between
October 7 and November 13. It does not establish withany certainty the
presence of National and Lawrenceburg at the site during this period.
and enmesh neutral employers -- in its dispute,,but the
evidence shows 'that some deliveries to neutral employers
were disrupted, one neutral employer withdrew froqmm, the
erection portion of its contract, and another neutral
employer delayed the start of its work at the jobsite.14
- Moreover, the wording of te signs displayed' by
Respondent during this period warrants ' the inference that
Respondent as its object" sought to compel the neutral
employers to cease doing business with Daniel - and to
compel the primary' employers to recognize or bargain with
the affiliates of Respondent.PS
Accordingly, I find that the picketing from October 7
through November 13 violated Section 8(b)(4Xi) and (ii)(B)
of the Act 16
The picketing' after November 19 was different in two
main respects. First after that date, Respondent no longer
picketed at location 1 where persons seeking to ' enter the
west gate of the plant necessarily passed; and thereafter all
picketing was confined to Dodson Cemetery Road. Second,
Respondent ceased using the first two signs with which it
had started to picket and replaced them with signs which
clearly identified the primary employers.
The General Counsel contends that the picketing after
November 19 continued to violate Moore Dry Dock
standards because the , "Some of the work . , , . " sign
continued in use by the pickets at times after November 19
and because picketing continued at location 2 and was nit
confined to the vicinity of location 3.With,respect to the
continued use of the "Some of the work .... " sign„there
are two sets of pictures and undenied `testimony of Hobby
that the sign was seen from time to time at the jobsite.
Hobby did not testify as to whether the other signs
identifying the primary' 'employers were also being dis-
played when he saw the "Some of the work ... " sign.
The pictorial evidence relating to the use of the "Some of
the work .... "'sign"on February 10, 1971, shows that both
signs identifying the primary employers were being
displayed in conjunction with it. The pictorial evidence as
to February 11, 1971 , discloses only the one sign propped in
a car windshield. The testimony is uncontradicted that no
other sign was visible and that no other pickets were present
at the time the picture was taken.,
As set forth above the Moore ry Dock standards are not
to be mechanically applied but to be used as Aids in
determining whether the Act was violated. The burden of
establishing the violation was with the. General Counsel.
Although the evidence establishes one use of the "Some of
the work ... " sign on February 11, 1971, unaccompa-
nied by signs identifying the primary employers, it does not
establish the frequency with which that sign was used or
is international Hod Carriers, Buildding and Common Laborers ' Union of
America, Local No. 1140, AFL-CIO (Gilmore Construction Company), 127
NLRB 541, enfd . as modified 285 F .2d 397 (C.A. 8), art denied 3661 J.S.
903. 1 do not find, as also alleged, that a further unlawful object of the
picketing was to compel Daniel to cease doing -business with Mid-South,
Southern, Bryant, and Mills . All five were primary employers and to the
extent that common picketing of the five contractors had this as, an object,
it was nonetheless lawful for Respondent to engage in such picketing just
as it remainedlawful for Respondent to appeal to those delivering supplies
to them as a lawful incident of primary picketing.
is international Hod Carriers, Building and Common Laborer's Union of
America, Local Na 114(4 AFL-CIO (Gilmore Construction Company) supra
w rb i KENTUCKY TRADES COUNCIL 277
whether on any -other occasion the "Some of the work
.... sign was displayed unaccompanied by the other
signs in use after November 19.17 In view of the fact that
signs identifying the primary employers had been displayed
over a substantial period of time at the places where
picketing occurred along Dodson Cemetery Road, al-
though Respondent might have been better advised to
discard the "Some of the work ...." sign after November
19, I do not find, that the evidence establishes that after
November 19 Respondent 's use of the sign was sufficient to
warrant the conclusion that it failed in any significant way
to disclose that its dispute was with the primary employers.
With respect to the location of the pickets , the evidence
establishes that the only commercial use of Dodson
Cemetery, Road was-in conjunction with the Ingersoll Rand
project, and, there is no indication of any substantial
difference in effect as to persons using Dodson cemetery
Road between picketing at location 2 and picketing at
location 3 . The difference in effect, if any, must rest upon
the extent to which it can be inferred that the picketing at
location 2 was directed at persons traveling past location 2
on Highway 45 destined to enter the plant by way of Santa
Claus Lane . Although the evidence as to the period before
November 19 shows the posting of some signs visible to
persons on Highway 45, the evidence as to the period after
November 19 does not- pinpoint the location at which the
pickets patrolled or placed signs. One picture shows a car
south of the railroad tracks and there is testimony that
picketing at location 2 was south , of the railroad tracks.
That evidence leaves some question as to the extent to
which the pickets , and signs were, visible to persons passing
by Dodson Cemetery Road on Highway 45. But even if
visible from Highway 45, the picketing was not in violation
of the requirement dispute for a further reason . For unless
the limitation placed by Daniel on the use of the gates was
sufficient to restrict picketing to location 3, Respondent
remained free to direct its signs at persons using both gates.
As noted above, the only evidence as to the wording of the
signs restricting the use of the gates was the testimony of
Hobby that entrances were posted with signs which stated,
"This entrance for the following contractors only" followed
by the names of the contractors assigned to the respective
gates . There is no evidence that the signs disclosed any
restriction on the use of the gates applicable to suppliers of
the contractors who regularly made deliveries to the site.
Consistent -with Hobby's testimony, the telegram sent
Respondent makes no mention of any restriction upon the
use of gates applicable to suppliers . Whatever further
restriction may have been in fact enforced, I find that the
failure to designate each of the gates as also restricted to
suppliers of the contractors authorized to use them and the
failure to notify Respondent of such restriction rendered
17 When displayed as on February 10, 1971 , the presence of all three
signs made it clear that "Some of the work" referred to that performed by
the primary employers named on the other signs.
is Building & Construction Trades Council of New Orleans, AFL-CIO
(Markwell and Hartz, Inc.), supra at 326, fn. 22. In view of this finding, it is
unnecessary to consider further evidence introduced as to whether the
actual use of the gates complied with the restrictions placed on them.
19 Counsel for the General Counsel stated at the hearing that he did not
contend that the picketing was directed at the employees of Consolidated
ineffective Daniel's efforts to insulate persons using the
west gate from the picketing.18 In these circumstances, I
find that even if visible from Highway 45 the picketing did
not fail in any material way to comport with the third
Moore Dry Dock condition.19 Accordingly, I conclude that
the picketing after November 19 did not violate Section
8(bX4)(i) and (ii)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES,
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Employers described in section I, above, 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it ceaseand
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Daniel, Mid-South, Southern, Bryant, Mills, Cloud,
National, Smith, Tenn-Ky, and Lawrenceburg are each
employers engaged in commerce or in,an industry affecting
commerce within the meaning of Section 2(2),(6) and (7) of
the Act.
2. West Kentucky Building & Construction Trades
Council, AFL-CIO, is a _ labor organization within the
meaning of Section 2(5) of the Act.
3. By inducing and encouraging individuals employed
by Cloud, Smith, and Tenn-Ky to engage in a refusal in the
course of their employment to perform services and by
threatening, coercing, and restraining said employers with
an object of forcing and requiring Cloud, Smith, and Tenn-
Ky to cease doing business with Daniel and with a further
object of forcing or requiring Daniel, Mid-South, Southern,
Bryant, and Mills to recognize or bargain with Respondent
or affiliated labor organizations, Respondent has engaged
in unfair labor practices within the meaning of Section
8(b)(4)(i) and (ii)(B) of the Act which affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 20
ORDER
Respondent, West Kentucky Building & Construction
Novelty Co., or any persons having no connection with the work being
performed at the Ingersoll Rand site.
m In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trades Council, AFL-CIO, its officers, representatives, and
agents, shall:
1. Cease and desist from:
(a)^ Engaging in, - or inducing or - encouraging any
individual employed by P.B. Cloud, Jr., Masonry Contrac-
tor, Inc., Elwin G. Smith & Co., Inc., Tenn-Ky Automatic
Sprinkler Co., or any other person engaged in commerce or
in any industry affecting commerce to engage in, a strike or
refusal in the course of their employment to 'use,
manufacture, process, transport, or`-otherwise handle or
work on any goods, articles, materials, or commodities or
perform any services; or threatening, coercing, or restrain-
ing said Employers, or any other person engaged in
commerce or in an industry affecting commerce, where in
either case an object thereof is to force said Employers or
persons to cease doing business with Daniel Construction
Company, Inc., d/b/a Daniel Construction Company, Inc.,
d/b/a Daniel Construction Company of Kentucky, Mid-
South Construction, Southern Contractors Service, Bryant
Electric Company, and Mills Engineering Company to
recognize or bargain with labor organization as the
representative of the employees of Daniel, Mid-South,
Southern, Bryant, and Mills, unless such labor organization
has been certified as the representative of such employees
under the provisions of Section 9.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix." 21 Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by ' Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted, Reasonable steps shall be taken by Respondent to
insure that said, notices are not altered, defaced, or covered
by any other material.
^(b,) Sign and mail sufficient copies of said notice to the
Regional Director for Region 9 for posting by each of the
employers named in the preceding paragraphs, if willing, at
all places where notices, to their respective employees -are
customarily posted.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.22
21 In the event that the Boards Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant' to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
22 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 9, in writing , within 20 days from,
the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency -of - the United-States, Government
WE WILL NOT engage in, or induce or encourage any
individual employed by P. B. Cloud, Jr., Masonry
Contractor, Inc,,. Elwin G. Smith & Co., Inc., Tenn-Ky
Automatic Sprinkler Co., or any other person engaged
in commerce or in any industry affecting commerce to
engage in, strikes, or refusals in, the course of their
employment to use, manufacture, process, transport, or
otherwise handle or work on any -goods, articles;
materials, or commodities or perform any services; and
WE WILL NOT - threaten, coerce, or restrain, said
Employers, or any other person engaged in commerce
or in industry affecting commerce, wherein either case
an object thereof is to force said Employerszor persons
to cease doing business ' with Daniel -, Construction
Company, Inc.,, d/b/a Daniel Construction Company
of Kentucky, or to force or require Daniel Construction
Company, Inc., d/b/a Daniel Construction Company
of Kentucky, Mid-South Construction, Southern' Con-
tractors Service, Bryant-Electric Company; and Mills
Engineering Company to recognize or bargain with'a
labor organization asp the representative of the employ-
ees of Daniel; Mid-South, Southern, Bryant; and Mills,
unless such labor organization has been certified as the
representative of such employees under the provisions
of Section 9. - 1
-
WEST KENTUCKY BUILDING
& CONSTRUCTION TRADES' `
COUNCIL, AFL-CIO.
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not, be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to `the ' Board's Office,
Federal Office Building, Room 2407, 550 Main Street,
Cincinnati, Ohio 45202, Telephone 513-684-3686.