Williamsport Bldg. & Const. Trades Council

National Labor Relations Board - Board Decisions

Jul 9, 1971

192 N.L.R.B. 6 (N.L.R.B. 1971)

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williamsport Building and Construction Trades Coun-
cil, AFL-CIO; Local 812 , International Brother-
hood of Electrical Workers , AFI-CIO; Local 708,
Laborers' International Union of North America,
AFL-CIO; and Local No. 19 , Bricklayers, Masons
and Plasterers' International Union of America,
AFL-CIO and Clarence Eck (Sardec, Inc.)
Williamsport Building and Construction Trades Coun-
cil, AFL-CIO and Clarence Eck (Sardec, Inc.).
Cases 4-CC-543, 4-CB-1664
July 9, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 8, 1971, Trial Examiner Robert Cohn
issued his Decision in the above-entitled proceeding,
finding on the basis of a stipulated record that the
Respondents had engaged in and were engaging in
certain unfair labor practices in violation of the
National Labor Relations Act, as amended, and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He further found
that the Respondents had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, Respondents filed exceptions to the Trial
Examiner's Decision together with a supporting brief,
the Charging Party filed exceptions to the Trial
Examiner's Decision, and the General Counsel filed
cross-exceptions to the Trial Examiner's Decision
together with a brief in answer to the Respondents'
exceptions and in support of his cross-exceptions.
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
panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings,
conclusions , and recommendations of the Trial
Examiner as modified herein.'
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
Respondents , Williamsport Building and Construc-
tion Trades Council, AFL-CIO; Local 812 , Interna-
tional Brotherhood of Electrical Workers, AFL-CIO;
Local 708 Laborers' International Union of North
America, AFL-CIO; and Local No. 19, Bricklayers,
Masons and Plasterers' International Union of
America, AFL-CIO, their officers, agents, and
representatives,
1. Renumber paragraphs 2 and 3 as paragraphs 3
and 4, respectively, and add the following as para-
graph 2:
"2. Respondents, Williamsport Building and Con-
struction Trades Council, AFL-CIO; Local 708,
Laborers' International Union of North America,
AFL-CIO; and Local No. 19, Bricklayers, Masons
and Plasterers' International Union of America,
AFL-CIO, their officers, agents, and representatives,
shall:
"Cease and desist from inducing and encouraging
any individuals employed by A & P to refuse to work
or render services in the course of their employment,
and from coercing and restraining A & P where, in
either case, an object thereof is to force or require A &
P or any other person engaged in commerce to cease
doing business with Sardec, Inc., or to cease doing
business with any other person engaging in the
performance of construction or related activity at the
Hepburn Street, Williamsport, supermarket."
2. Add the words "and Appendix C" after the
words "Appendix A" in renumbered paragraph 4(a).
3. Add "A & P" after "Sardec, Inc.," and also add
"and A & P with notices marked 'Appendix C"' after
the words "Appendix B," in renumbered paragraph
4(b).
4. Add the attached notice as "Appendix C."
I The Trial Examiner found , and we agree, that the picketing of A & P
stores in the Williamsport area by Respondents , Building and
Constructions Trades Council ; Local 708, Laborers'; and Local No. 19,
Bricklayers , was unlawful . Accordingly , we shall, as requested by the
General Counsel in his cross-exceptions and the Charging Party in its
exceptions , modify the recommended Order and notice to require
appropriate remedial action.
APPENDIX C
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our members and all employees
that:
WE WILL NOT induce or encourage any individu-
als employed by A & P to refuse to work or render
services in the course of their employment and we
will not coerce or restrain A & P, where in either
case an object thereof is to force or require A & P
to cease doing business with any other person
engaged in the performance of construction or
related activity at the Hepburn Street, Williams-
port, Pennsylvania, supermarket.
192 NLRB No. 3
WILLIAMSPORT BLDG. & CONST. TRADES COUNCIL 7
WILLIAMSPORT BUILDING
AND' CONSTRUCTION
TRADES COUNCIL,
AFL-CIO,
(Labor Organization)
Dated By
(Representative) (Title)
LocAL 708, LABoRERs'
INTERNATIONAL UNION
OF NORTH AMERICA,
AFL CIO
(Labor Organization)
Dated By
(Representative) (Title)
LocAL No., 19,
BRICKLAYERS, MASONS
AND PLASTERERS'
INTERNATIONAL UNION
OF AMERICA, 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,, 1700 •Bankers Securities Building, Walnut &
Juniper Streets, Philadelphia, Pennsylvania 19107,
-Telephone 215--:597-7601.
TRIAL EXAMINER'S DECISION
consolidated complaint against Williamsport Building and
Construction Trades Council, AFL-CIO (herein BTC), and
Local 912, International Brotherhood of Electrical Work-
ers, AFL-CIO (herein IBEW). On July 20, 1970, an
amended consolidated complaint was filed by the Acting
Regional Director for Region 4, which ' added as Respon-
dents Local 708 , Laborers' International Union of North
America, AFL-CIO (herein Laborers), and-Local No. 19,'
Bricklayers, Masons and Plasterers` International Union of
America, AFL-CIO`(herein Bricklayers). Willi n apt time,
each Respondent duly filed its answer to the consolidated
complaint, as amended.
The principal issues raised by the _Pleadings are whether
Respondents, by engaging in certain alleged conduct,
violated Section 8(bx4xi) and (ii)(B) of the National Labor
Relations Act, as amended (herein the Act), the so-called
secondary boycott sections of the Act.2 Also involved is an
allegation that 'BTC attempted to cause an employer to
discriminate against ' employees J n violation of Section
8(b)(2) and (1)(A) of the Act. An independent,violation of
Section 8(bXIXA) against BTC, respecting ' an alleged
incident of mass picketing is also at issue.
On 'September ' 29, 1970, the parties entered into a
stipulation which, in essence, waived a hearing before a
Trial Examiner and agreed that the record made at 'the
10(1) proceedings before a United States District Court
Judge for the Middle District of Pennsylvania in Case
70-140 (civil), the exhibits offered andaccepted therein, the
court's opinion and order dated May 25 , 1970, and certain
formal documents shall constitute the entire record herein.3
Subsequently, following several requests4or extensions of
time by counsel for Respondents , briefs -wer'e filed with me
as the duly designated Trial Examinerin this proceeding,
which have ' been carefully considered . Upon the entire
record,- includiag arguments and contentions of counsel, I
hereby make-the following:
FINDINGS AND -CONCLUSIONS,
I. JURISDICTION
STATEMENT , OF THE CASE
ROBERT Coin, Trial Examiner: Upon,charges filed by
Clarence Eck,,an individual,' the General Counsel of the
National Labor. Relations Board (herein - the General
Counsel and Board, respectively), through the Regional
Director for - Region 4, on April 24, 1970 issued a
' The, original charge in Case 4-CB-1664 was filed on October 22, 1969
(subsequently amended November 6, 1969); the original charge in Can
4-CC-543 was filed on October , 22, 1969 (subsequently amended on
December 8,1969, March 16, 1970, and'April 9, 1970).
z To the extent-pertinent, this section makes it an unfair labor practice
for a labor organization or its agents
(4xi) to-, engage in, or to ' induce or encourage any individual
employed-by any person 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 (ii) to threaten , coerce, or restrain any person
engaged in commerce or- in an industry affecting commerce, where in
either case an object thereof,is:
Sardec , Inc. (herein Sardec), is a Pennsylvania corpora-
tion with its principal office and place of business in
Williamsport, Pennsylvania, where it is , enpged -as a
general contractor in the building and construction
industry. During 1969, Sardec, in the course and conduct of -
its business operations , purchased and received, materials
• s s • w -
(B) forcing or requiring any person -to cease using , selling,
handling, transporting, or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to'cease
doing business with any other person,, or forcing or requiring
any other employer to recognize ' or bargain with a labor
organization as the representative of his employees unless such
labor organization has been, certified as the representative of
such employees - under the provisions of section 9: Provided:
that nothing contained'in this clause (B)'shall'be construed to
make unlawful , where not otherwise unlawful , any primary
strike or primary picketing. -
s It was also stipulated that an employer , Carl Roupp, is-an employer
engaged in interstate commerce within the meaning of the Act.
8 DECISIONS OF NATIONAL LABOR RELATION S ,'BOARD
valued in excess of $50,00G'from'suppliers located, outside
the Commonwealth ;of° Pennsylvani4.4,I,find;that,Sardec,,is,
and has been ate all times material, an employer engaged in
commerce within the meaningof Section-2(6) and (7)`of the
Act.
Carl , Roupp, • -is, an, individual, enterprise engaged, in
masonry subcontracting work, in and •around Williamsport;,
Pennsylvanian, and annually performs services valued in
excess of $50,00 forfirms. directly engaged in,interstate
commerce within the meaning of the Act. I find that Carl
Roupp is an employer engaged in interstate commerce
within themeaning of the Act. '
On the basis of the foregoing, I recommend that the`
Board assert jurisdiction herein.
U. TH13 .,LABOR ORGANIZATIONS INVOLVED,
BTC, an organization composed of affiliated labor'
organizations in' the 'building and construction -trades,
(including,,IBEW, Labor`ers,' and Bricklayers), is- admitted-
to be a labor organization within the meaning of Section.
2(5) of the Act. I so-find. '
h'al'o find, as Respondents admit, that IBEW; Laborers,
and Bricklayers are, and have been at all times material,
labor'`organizations"witlnn-the meaning' of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A.. Background and .Setting' of the Issues
Sardec is engaged,in the-construction of retail shopping
centers - as a, general, contractor for Eck kealty'Company, a
real estate .developerr. The issues; herein arise from alleged
conduct respectingtwo jobsites wherein Sardec ,was general
contractor :; (1)_ a supermarket for the Great Atlantic and ,
Pacific Tea ;Company (herein A& P) at Hepburn- Street,
Williamsport, Pennsylvania (herein ,the Hepburnjob); and
(2) a supermarket for F . M. Flickinger, Inc., t/a Super
Duper Market (herein Flickinger) at Mansfield , Pennsylva-
nia (herein the Mansfield job).
B. Events at the Hepburn Job (Including A & P
Stores)
Picketing- by' 'Respondent BTC commenced at the
Hepburn jobsite` about 7:45 a.m. on October 18, 1969.5 At -
that time, ; according 'to`the- uncontradicted testirnon of
Clarence, Eck, approximately '200 men-some `carrying
+ Testimony of Clarence Eck, president of Sardec.
S All dates hereinafter in October-December refer to 1969; January-
May refer to 1970 unless otherwise indicated.
6 In fact,, Serdec ,, did .,not employ, any workers on these projects, but
rather subcontracted•all of the labor.
7 Picketing of the A,,& P stores also ceased after October 18, but
handbilling of the stores by,Respondent BTC continued on weekends into
November although the legend thereon was changed to read as follows:
TO THE,PUBLIC,
(For Information Only),
PLEASE, DO NOT PATRONIZE A & P
REASON. A,t the, Hepburn Street Redevelopment Project, Carl
Roupp,,=is in , violation of his agreements with certain Building
Trade affiliates, by hiring , , NON-UNION -,construction
tradesmen,-, andv affording substandard wages, benefits and
working , conditions. This is an effort to undermine the level of
picket Signs=engaged in mass picketing of the jobsite
blocking entrances and exits. One of the picket signs read:
"Sardec Contractor does not employ union workers." 6
Another sign referred "to 'A & P, and it appears that on the
same day, Respondent BTC picketed and handbilled
several A & P stores in the' Williamsport area. The handbills
distributed at these locations read as follows:
TO THE PUBLIC
(For Information Only)
PLEASE DO NOT PATRONIZE A & P
REASON: A & P has built or has had built for it several
A & P ,stores ,in the area of the Williamsport
Building Trades Council within the past several
years.
A & P is now having another store built at the Hepburn
Street Redevelopment Project with NON UNION
contractors, who are not affiliated with the different
crafts-of the Williamsport Building and Construction
Trades Council. '
NOTE: We are not asking A & P employees or any
.other person to stop work, or to refuse to make
deliveries to, or pickups from A& P, or any other
person.
Thank you for reading our message.
THE WILLIAMSPORT
BUILDING AND.,
CONSTRUCTION TRADES
"COUNCIL AFL-CIO /S/
JoS N F. ENGEL, PRESIDENT
Mass picketing of the Hepburn site ceased after'Octobei"
18, but picketing, by two men on the perimeter of the site
continued'=until December 22, (otwhidh-more;anon). From
October ; 20 until 'October 24, the pickeis. wore a sign',
referring toA & P. However, on October 2,4,',the=signs were.
changed to char$e that Carl, Roupp, the masonry subcon-,
tractor, had violated his agreements with Respondent
Laborers and Bricklayers by hiring nonunion men .7
As previously, noted, picketing of,',theHepburn site
continued until December 22, although the uncontradicted
testimony of Eck is that Roupp worked' at the site from
October 13 until November 22 and did not reappear on the
job until December 28"
Picketing ceased on December 22 ' due to an '`abortive
attempt to settle' the matter (see'Resp. ;Exh: 3): However,
wages, benefits , and working conditions:enjoyed bythe citizens'
of the Williamsport area.
A, & P apparently- sanctioned these substandard wages, benefits and
workmg'condltions, by "planning to takespace at the Hepburn Street
Redevelopment Project. You, the publio, may protestagainst this effort
to undermine decent wages, benefits and working conditions by
refusing to patronize A & P.
NOTE': We ,are not asking A & P employees or Any other, person to
stop work, or to refuse to make deliveries- to,or pickups from A
& P, or any other person.
Thank you for reading our message.
THE WILLIAMSPORT BUILDING AND
-CONSTRUCTION TRADES 'COUNCIL
AFL-CIO Is/ -JOHN F. ENoEI,
PRPSIDENT
WILLIAMSPORT BLDG. & CONST. TRADES COUNCIL 9
since neither the Charging- Party nor the Regional Director
executed the settlement agreement, it did not become
effective.
Respondent BTC resumed picketing of the Hepburn site
on March 12, with signs reading as follows:
FOR INFORMATION PURPOSES ONLY
THE UNION Protests the Sub-Standard Wages and
Conditions being paid by
CARL ROUPP-'who is `operating in violation of his
agreements with the Labors and the Bricklayers,
Locals No. 708 & 19.
THE UNION Does Not Intend by this Picket Line to
Induce or Encourage'the Employees of any other
Employer to Engage in a Strike or Refusal to
Work
THE UNION Has NO Dispute With Any Other
EMPLOYER
A.F. of L.-C.LO.
According to the uncontradicted testimony of Eck, the
pickets were present bn=March 12 and 13 , were not present
on March 14 and' I5,-but returned thereafter and picketed
continuously, from that time -until the hearing in the 10(1)
proceeding at the end of 'April. This; although Roupp did
not work at the project from March 15 until the date of the
hearing (except , for 2 days in April to repair a wind-
damaged wall).
C. Events at the Mansfield Job
It is stipulated that Respondent IBEW picketed the
Mansfield job from March 10 until April 3 with picket signs
stating as follows:
.FOR INFORMATION PURPOSES ONLY
the Mansfield job had commenced by the summer of 1969,
and, near the end of December, John Engel, president of
Respondent BTC, and Warren Dieffenderfer, business
agent for Respondent IBEW, appeared 'at - the jobsite.8
According to Engel's testimony, he was-there in his capacity
as a business agent for the Plumbers Union since the
refrigeration work had been contracted to a Buffalo, New
York, firm (Bascaglia) whose employees were members, of a
Buffalo local union, and it was Engel's duty to "check[ing]
this out." On this occasion, Engel, not only informed the
Buffalo steamfitters that he had information from the
electricians' local that there was a possibility-that said local
would picket the job, but he'also saw fit to call the employer
(Bascaglia) while there to also advise him of the'fact 9 Engel
further-testified that about -the same time he had a similar
conversation with employees of the- Sandberg Company
(subcontractor to -install a sprinkler` system) who were
members of a local-union of the Plumbers -in Jamestown,
New York, and advised them of thedispute between IBEW
and Gene Hollick, the electrical subcontractor, on the
Mansfield job.
According to the uncontradicted testimony of, Carl
Lucas, he, along with Eck and Tom Kasney, a representa-
tive of, Flickinger, on or about March 10 advised the picket
that Hollick was no longer on the job,-to which the picket
responded, "I know." However, the man ` continued
picketing.1e '
On March 16, again according to' the uncontradicted
testimony of Lucas, he heard Engel advise the' employees of
Sandberg that, "You" are not going to work behind "the
picket lines," to which they responded that they would not.
Analysis and Concluding Findings
a. Initial Picketing at the' Hepburn` Jobsite
THE UNION:Protests the Sub-standard Wages and
Condition being,paidby,
GENE HOLLICK,ELEC.
CONTR. WHO IS NOT
AFFILIATED WITH IBEW
J.OCAL UNION NO.812
THE UNION jDoes Not Intend by this Picket Line to
Induce or Encourage the Employees of any other
Employer to Engage in a - Strike, or Refusal to
Work ,
THE UNION Has NO Dispute With Any Other
EMPLOYER - -
A.F. of L.-C.LO.
However, it appears that the dispute which was the
asserted basis for the picketing had been extant for at least
several months prior thereto. Thus, the evidence shows that
9 It is admitted that, each of - the above-named men is an agent 'of, his
respective labor organization.
9 ,According to' the testimony of Carl Lucas, a foreman of the carpentry
subcontractor -in whose shack the telephone conversation took place, Engel
advised the employer that "he [Engel l was going to put a ' picket on and
asked him' if he wanted his men to cross the picket line or not." After Engel
spoke with them, the Bascaglia men left. Thereafter Engel told Lucas that
It appears that the evidence, i.e., the legend on the
original picket signs and handbills, plus the testimony of
Engel, amply justifies a finding that the initial objective of
Respondent BTC's picketing the jobsite was to bring
pressure to bear on Sardec ` to utilize subcontractors who
employed union rather than nonunion labor it this project.
,That picketing for such an objective is. proscribed by the
provisions of Section 8(b)(4) seems well`established.i1 I also
find that the mass picketing engaged intby this Respondent
on October 18, which was in furtherance'of this 'objective
and which effectively interfered with ingress to and egress
from the jobsite as well as prohibited- some employees of
subcontractors- from working as-, scheduled, constitutes
restraint and ' coercion of persons engaged, in "commerce
within the meaning of Section 8(bX4) i),and (ii)(B), as well
as constituting restraint and coercion of, employees within
the meaning of Section 8(b) (1XA).
"he [Engel l was going to picket the job."
10 The record also shows that on March 11 , the attorney for the
Charging Party sent a telegram to Respondent IBEW which advised that
Rollick was not on the job being picketed. - > '
11 See Building '& Construction Trades Council, of Philadelphia. and
Vicinity, 149 NLRB 1629, enfd . 359 F.2d 62 (CA. 3, 1966).
10 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
b. Picketing and Handbilling the A & P Stores ,
Since, as I have found, the initial picketing of the
Hepburn jobsite.was pursuant to an ;unlawful objective, it
follows that the picketing in furtherance of such objective
at the A,-& P stores-a dearly secondary situs-,was
likewise unlawful . However, the handbilling presents a
'different, and more difficult, problem in view,of proviso to
Section 8(b)(4).12 The Board has only recently construed
such proviso `to authorize "publicity other than picketing
which persuades customers of a secondary employer to stop
trading with him except to the extent that such publicity has
the effect --of cutting off -his deliveries or inducing his
employees to cease - work." 13 In the Sakowitz - case,, the
Board specifically . sanctioned "handbilling at a store, of -a
secondary other; than the one at which, the- services; of the
primary employer, have been utilized."- Counsel for the
General Counsel,seeks to, avoid the impact of Sakowitz by
arguing Oat . the, "alleged dispute publicized on the
handbills herein , involved Roupp's hiring of non-union
employees . Since,,as argued above,, such action constitutes
an unlawful attempt to cause discrimination in violations of
Section 8(b)(2), the, handbills cannot be accorded the
protection of the proviso,;absent which it is unlawful [citing
Honolulu Typographical Union No. 37, AFL-CIO (Hawaii
Press), 167 NLRB 1030, enfd.. 401 Fa2d 952 (C.A.D.C.,
1968)]." 14
The Honolulu case does not, however , help the General
Counsel's cause since in that case the Board found that the
legend on the handbills was misleading, and therefore was
not "for thepurpose of truthfully advising the public." Such
is not'the, case here ; ;rather, the General Counsel is urging
that the handbilling not be protected because the handbills
advise the public of conduct which is contended to be
unlawful.'However, as -discussed more fatly infra, I have
found contrary to the General Counsel 's contentions on the
Section 8(b)(2) issue. AccordinglyJ find the handbilling to
be protected by the proviso and will recommend that the
complaint,,to that extent, be dismissed.
c. Subsequent Picketing at the Hepburn Site
As previously.noted,,Ithe picket signs at the Hepburn'site
were changed on or about, October, 224, to indicate, the
primary dispute was,with Carl Roupp.15 This picketing
continued until December„-22 when, as noted above, there
were soigne abortive settlement ,negotiations : The evidence
„iliscloses'tl}atoupp worked at the,project from October 13
ii 4ProrldW fur"ther,'Tha for the purposes of- this paragraph , (4) only,
nothing contained 'in such paragraph: shall ' be, construed to prohibit
publicity; other , than-`picketing, for,•the^.Purpose of truthfully advising°the
public, including consumers and members of a labor organization, that a
product or 'products'are ,produced by an employer with whom the labor
organization has,'Ja primary `dispute ' and are ,,distributed by another
employer, as long ass such publicity does not have an effect of inducing any
individual employed by any person ,other than the primary employer in the
course of his employment to refuse to pick up, deliver, or transport any
goods, or not to perform any services, at theestablishment of the employer
engaged in such , distribution."
it , Local Union Na 54,, Sheet Metal Workers International Association;
AFL-CIO (Sakowitz, Inc.), 174, NLRB, No. 60. See Also Plumbers and
Pipefitters Local Union