Painers Local 829

PAINTERS LOC.(AI 829 United Scenic Artists, Local 829. Brotherhood of Painters and Allied Trades, AFL-CIO and Theatre Techniques, Inc. Case 2CC 1553 June 25. 1979 DECISION AND ORDER BY MEMBERS PNI .I(), MURPHY, ANI) TRUIESDAI On September 22, 1978. Administrative Law Judge Irwin Kaplan issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclu- sions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that by its involvement in work stoppages and threats to fine Nolan Scenery Studios, Inc., Respondent Union vio- lated Section 8(b)(4)(i) and (ii)(B) of the Act. For the reasons set forth below, we agree that Respondent violated Section 8(b)(4)(ii)(B), but do not agree that Respondent violated Section 8(b)(4)(i)(B). The facts, as more fully set forth by the Adminis- trative Law Judge, are as follows. Theatre Tech- niques, Inc. (hereinafter TTI), is a general contractor in the business of supplying theatrical settings, props, and draperies for Broadway productions, theaters, television, and motion pictures. When TTI bids for a job, its bid is based largely on estimates it has re- ceived from various subcontractors relating to the several phases of the job. When it is awarded a job, TTI generally subcontracts the construction work, sculpture, draperies, and painting of scenery and props. At all times relevant, TTI's employees were unrepresented. During the 18 months preceding the hearing herein, TTI generally subcontracted the painting of props to Nolan Scenery Studios, Inc. (hereafter No- lan). Nolan has a collective-bargaining agreement with Respondent. The alleged unfair labor practices herein involve the props of two shows for which TTI I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefull) examined the record and find no basis for reversing his findings. had the general scenic contracts, "Stop The World I Want To (Get Off' and "Working." TTI subcontracted to Nolan the painting of sce- nery tor "Stop The World." On May 3 and 8, 1978, it shipped props and materials for that show to Nolan for painting. On the morning of May 9, Feller, pres- ident of TTI, received a telephone call from Nolan's president, Abramson. Feller testified the Abramson told him that his employees would not paint these props because they had been constructed elsewhere. Abramson added that he had called Respondent about the problem. Feller told Abramson that time was of the essence because the props had to be shipped to the theatre the following day. Later that day, Abramson called Feller to tell him that an agent of Respondent was coming to his plant, and that one way or another Abramson would see that the props were painted. LeBrecht, assistant business agent of Respondent. in fact visited Nolan's facility on an asserted "fact finding" mission. Abramson testified that LeBrecht, who previously had never made such a visit to the facility, spoke separately with Abramson, the show's designer, and some of' Nolan's employees. When Le- Brecht asked Abramson where the props in the studio had come from, Abramson replied that they had been shipped from TTI. On May 10, Abramson called Respondent's busi- ness representative, Rodriguez, and asked him for permission to have the props painted in view of the shortness of time remaining before they were needed at the theater. Abramson pointed out that it was bet- ter to have his employees do the painting work than to ship the props out unpainted, possibly to be painted by nonunion employees. Rodriguez gave Ab- ramson permission to have the employees paint the props, but told Abramson that he was in violation of their collective-bargaining agreement which, Rodri- guez asserted, entitled Nolan's employees to sculpt (fabricate) as well as paint the props. According to the testimony of both Abramson and Rodriguez, Rodriguez told Abramson that some sort of payment to Respondent would be computed based on the time it would have taken Nolan's employees to sculpt the props had they been given the opportunity to do so. Abramson called Feller and told him what had been discussed with Rodriguez. Feller testified that Abramson told him that Respondent planned to charge him in the future for props sculpted elsewhere as if Nolan employees had actually fabricated them themselves. TTI also subcontracted painting work to Nolan for "Working." On Thursday, May 11, 1978, TTI sent Nolan one wall of scenery as a last-minute addition to "Working," which was to open the following Satur- day night. On May 12, Abramson telephoned Feller 243 NLRB No. 7 27 .)I-(ISI()NS )1 NA I I)NAI. IAHB()R RlAI IONS B()ARI) and told him that Nolan's employees would not paint the wall, and he would ship it back to TTI unpainted. The wall remained in the loading area of Nolan's ft- cility for about 5 days and never was painted by No- lan's employees. Ahramson also told Feller not to bother sending over another addition to "Working," which Feller had advised him was to he sent. On May I Rodriguez dispatched a telegram to Nolan. In this telegram, fully set forth by the Admin- istrative Law Judge, Respondent demanded that No- lan immediately cease painting sculpture which had not been produced by scenic artists employed by No- lan. Respondent further asserted that the painting of props sculpted elsewhere constituted a violation of its collective-bargaining agreement with Nolan. It fur- ther stated that TTI and Nolan had entered into an "illegal conspiracy ... to deprive scenic artists of work opportunities." The telegram closed by advising that Respondent would take action to the extent per- mitted by law to counteract Nolan's actions. Abramson testified that he got the "message" from the telegram that Nolan was not to paint sculptures in the future which were sent by TTI. He stated that the telegram from Respondent, coupled with the fact that he was extremely busy, accounted for Nolan's failure to paint the wall for "Working." The Administrative Law Judge concluded that Re- spondent violated Section 8(b)(4)(i)(B) of the Act. In so doing, he found that, while there was no direct evidence that Respondent induced Nolan's employees to engage in a work stoppage, such inducement was plainly evident from the totality of the circumstances. We find, on the contrary, that the evidence herein is insufficient to support the finding of this violation. Initially, we note that there is no direct evidence that any work stoppage actually occurred. In this re- gard, no employees of Nolan ever testified, and the only evidence herein which arguably might point to a work stoppage is Feller and Abramson's testimony that Abramson told Feller that Nolan's employees would not paint certain props shipped by TTI. More- over, it is not clear from the remarks attributed to Abramson whether the employees in fact refused to do the work, or whether Abramson assumed from the circumstances that they would refuse to do so if asked. With respect to the wall from "Working," there is not testimony that the employees were even aware that such a prop had been received by Nolan, much less that they were asked to paint it and refused to do so. Furthermore, even assuming that Nolan's employ- ees refused to paint the props from TTI, there is no direct evidence that they were induced to do so by Respondent. Thus, aside from Abramson's testimony concerning LeBrecht's visit to his facility, and Feller's testimony that Abramson told him on May 9 that the employees had called Respondent and would not paint certain props, there is no evidence of any com- munication between Respondent and Nolan's em- ployees. And. assuming that Nolan's employees tele- phoned Respondent on May 9, the record is silent as to the content of that conversation. Simillarls there is no evidence as to what eBrecht told Nolan's em- ployees during his visit to the facility. Finally, there is no evidence that the employees were aware of the telegram from Respondent to Nolan, or the other communications between Respondent and Abram- son. Accordingly, we find that the evidence herein is insulfficicnt to establish that Respondent induced or encouraged Nolan's employees to refuse to work on props for '1Tl in violation of Section 8(h)(4)(i)(B) of the Act. 2 As noted above, the Administrative Law Judge also concluded that Respondent violated Section 8(b)(4)(ii)(B) of the Act. While we agree with this conclusion, we do so only for the reasons set forth below. Respondent's own witness, Business Representative Rodriguez, stated that he told Nolan's president, Ab- ramson. that the latter's failure to have Nolan em- ployees fabricate the "Stop The World" props was in violation of their collective-bargaining agreement. Rodriguez further testified that, in the same conversa- tion, he "granted him Abramnsonj permission to paint the scenery" and asked Abramson to give him an es- timate of how many hours Nolan employees would have spent on the props if they had sculpted, as well as painted, them. In its brief to the Board, Respon- dent concedes that Respondent was thereby prepar- ing to calculate compensation it claimed was due it from Nolan for denying Nolan employees the oppor- tunity to sculpt the disputed props. In essence then, Rodriguez proposed the fee as an alternative to the withholding of "permission" fi)r the painting of the props from TTI. It is well established that Section 8(b)(4)(ii)(B) is violated where a union employs unlawful pressure to claim work that the immediate employer is not in a position to award.3 In such circumstances, a union's 2 We find the cases cited by the Administrative Law Judge in support of his finding of Respondent's "complicity" in the alleged work stoppages to be inapposite. Thus. although in Local 25, International Brotherhood of Electri- cal Workers, AFL CIO (New York Telephone Company. 162 NLRB 703 (1967), the Board ound that the union's acquiescence in unlawful work stoppages might amount to violations of Sec. 8(b)(4Ki B). there the evidence showed a pattern of tacit approval by the union of the employees' actions. Further. in Local Union No 3. International Brotherhood of Electrical Work- ers. AFL-CIO (New York Telephone Company) 193 NLRB 758 (1971), enfd. 467 F.2d 1158 (2d Cir. 1972), the Board found the union was responsible for the inducement of employees by a union steward, but it was clear that the steward in fact had induced the employees to strike unlawfully. N... R.B. v. Enterprise Association of Steam. Hot Water. Hyvdraulic Sprin- kler, Pneumatric Tube. Ice Machine & General Pipieitters of New York and icini',. Local Union No 6138 [Austin Co, In.J, 429 JS, 507 (1977). 28 PAIN I RS (X'AI 829 efforts are not rendered primary simrpl because it seeks to benefit the employees of the employer upon whom it is exerting the pressure) Here. it is undisput- ed that TTI was the general scenery contractor for the shows "Stop The World" and "Working." More- over, there is no persuasive evidence that Nolan, as subcontractor, had the right, contractual or other- wise, to determine that its employees would fabricate as well as paint props sent to it by TTI. 5 Hence. when Rodriguez. by his own admission, exerted pressure on Nolan to ensure that Nolan's employees perfbormed the fabrication work, Rodriguez, in essence, was in- sisting either that TTI change its manner of doing business or that Nolan abrogate its contracts with TTI. Such pressure, at least in some measure, was tactically calculated to satisfy union objectives else- where and was, therefore, secondary and unlawful.' Respondent argues, however, that its collective- bargaining agreement with Nolan contained a valid "work preservation" clause reserving both painting and sculpting work for Nolan's employees. In this re- gard, it further contends that the Board has held that a union may lawfully seek compensation from an em- ployer who becomes a party to an arrangement that deprives its employees of work to which the employ- ees are arguably entitled under the contract. We find the cases cited by Respondent in support of this latter contention distinguishable from the instant case.7 In the cases cited by Respondent in support of its contention that its request for compensation from Nolan was lawful, the unions involved were attempt- ing through peaceful means provided for in their col- lective-bargaining agreements to enforce colorable contractual claims to certain work for employees in the units they represented. In these circumstances, the Board found that a union's use of contractual mecha- nisms for settling matters in dispute did not amount to threats, coercion, or restraint within the meaning of Section 8(b)(4)(ii)(B) of the Act. For example, in Kimnstock Division, Tridair Industries, Inc., supra, the 41d at fn. 16. Although Rodriguez testified that the term "painting" is construed in the industry as including both painting and sculpting, we find such testimony unpersuasive, particularly in light of the fact that Respondent's collective- bargaining agreement with Nolan itself distinguishes betwecen painting and sculpting. 6 Local No. 742, United Brotherhood of Carpenters and Joiners of America. John Foreman, Business Agent, and Harold Stolle., Steward (J L Simmons Company, Inc), 237 NLRB 564 (1978\. 7 E.g.. Sheet Metal Workers International Association. Local 28, AFl. (10 (Carrier Air Conditioning Companr, a Division of Carrier Corporation). 222 NLRB 727 (1976); Southern California Pipe Trades District Council h'o 16. Plumbers & Steamfitters Local No. 582 (KimstocA Division, Trrdair Industries. Inc.). 207 NLRB 711 (1973); Southern California Pipe Trades District Council No. 16 of the United Association, and United Association of Journemen and Apprentices of the Plumbing and Pipefitting Industri of the United States and Canada, ocal No. 494 (Associated General Contractors of California, Inc ). 207 NLRB 698 (1973); Carpenters District Council of Houston and icinitv (Astrodomain Corporation). 202 NLRB 744 (1973). Board fiound that union efforts to entforce harg;ained- tor clauses iposing monetar ;issessiC'ents on anil cm- pl(yer for entering in to agreements whereb\ non uiinit employees pert'ormed unit work were 0not u nlawlutl. Ilowever. it is onet thing to enforce penalties greed upon in the nornial course of' collective h;argaining. and quite another to impose them unilkateral I in the circumstances here. Respondentl i oes not content that the monetlar salnctions threatened bh Rodrigue were a contracttialll providedl rinetledy oir enforcing its as- serted "work preservation" clause. Accordingly. even assuming atltlt'endo, that their coll c-ti a e-arga ining agreement does cont;lain such a ''') ork preservatilon" clause, Respondent's atltempt to illnpose such nit)ne- tar 5 sanictionls on Nol;il for not acquirilng work over which it had no control was mnrcelh, an titempt to substitute one form of' unlawful secondar cc0llolilic pressure for another. A\ccordi ngl . and in ic\ of all the foregoing, we conclude that Respomdciint has io- lated Section 8(h)(4)(ii( B) of' the Act AMI:NI)tI) ('()N( I I I()NS (t 1. \\ Substitute the following (onclusions of L.a for the Administrative l.aw Judge's ('onclusions of I.aw 4 and 5: '4. By its threat to fine Nolan. Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(h4)(4)ii)(B) of the Act. "5. T'he aforesaid unfair labor practice is an unfalir labor practice affectingt c0nimicrce within the ineaning g of Section 2(6) and (7) of' the Act." OR[)DtR Pursuant to Section 10(c) of the National I abor Relations Act. as amended, the National L.abor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative l.aw Judge, as modified be- low, and hereby orders that the Respondent, United Scenic Artists, Local 829, Brotherhood of Painters and Allied Trades, AFL-CIO. New York ('its. New York. its officers. agents, and representatives, shall take the action set frth in the said recommended Order, as so modified: ' J . Simmons (ompan,r Inc . supra The Administrative Law Judge found that Feller Icslitied thai Abramsoll told him that the reason the employees sould not paint the props was that they had not had the opportunity to fabricate as well as paint them he record. however, reveals that although Ahramson testified to that effect, Fel- ler testified only that Ahramson had told him that the reason the employees would not do the work was because Respondent was trying to exert pressure against u1rI in response to the latter's pending antitrust suit against Respon- dent. In view of our reliance on Rodriguez' own testinlony. coupled with Nolan's lack of control over assignmenlt of the disputed work, we ind it unnecessary to resolve this apparent cotlilctl In estlmoins I).( 'ISIO()NS ()F NA I IONAI. I.ABOR RI IA IONS BOARDI) 1. Delete paragraphs 1(a) and (h) and substitute the following: "1. ('ase and desist front i any manner or by an) means, including threats to impose financial penal- ties, threatening, restraining, or coercing Nolan Sce- nery Studios, Inc., or any other person engaged in commerce or an industry affecting commerce where an object thereof Is to force or require Nolan Scenery Studios, Inc.. or any other person engaged in com- merce or in any industry affecting commerce to cease using, selling, handling, or otherwise dealing in the products of or to cease doing business with l'heatre Techniques, Inc." 2. Substitute the attached notice for that of the Administrative L.aw Judge. APPEN 1)1 X NoiI(i TO MMIBI RS P()s II) BY ORI)IR )01 ilI NAII()NAI. LABOR RI.AI()IiNS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence, it has been decided that we, United Scenic Artists, Local 829, Brotherhood of Painters and Allied Trades, AFL CIO have violated the Na- tional Liabor Relations Act, and we have been or- dered to post this notice. We hereby notify you that: WE Vwi1. NO'I in any manner or by any means, including threats to impose financial penalties. threaten, coerce, or restrain Nolan Scenery Stu- dios. Inc.. or any other person engaged in com- merce or in an industry affecting commerce. where an object thereof is to force or require No- lan Scenery Studios, Inc., or any other person engaged in commerce or in an industry affecting commerce to cease using, selling, handling, or otherwise dealing in the products of or to cease doing business with Theatre Techniques, Inc. UNITED SCENIC ARTISTS, LOCAl. 829, BROTHERHOOD OF PAINTERS ANI) AIIIED TRADES, AFL CIO DECISION SIATEMEINT 01 lTl. CASt IRWIN KAPLAN, Administrative Law Judge: This case was heard in New York City, New York. on June 26 and July 5, 1978. The charge Inc. (herein TTI) on May 12., 1978. and the complaint thereon issued on June 7. 1978. The complaint alleges, inter alia, that on or about May 9. 1978. the employees of Nolan Scenery Studios. Inc. (herein No- lan), who are members of United Scenic Artists, Local 829, Brotherhood of Painters and Allied Trades, AFL-CIO, (herein Respondent or Ilnion), pursuant to the inducement. encouragement, authorization. or approval of said Respon- dent. retfused to paint certain props sent by T'11 to Nolan. It is further contended that since on or about May 10, 1978, Respondent warned Nolan that i' it continued to paint cer- tain props sent by TTI it would assess a fina cial penalty against Nolan which Respondent would calculate as the cost of contructing and manufacturing such props. In sum it is alleged that Respondent by these and other acts vio- lated Section 8(b)(4)(i) and (ii(B) of the National Labor Relations Act, as amended (herein Act). Respondent tiled an answer (amended at the hearing) conceding, itr a/lia. certain jurisdictional facts, but denying all allegations that it committed any unfair labor practices. Upon the entire record, from rnmy observation of the de- meanor of the witnesses, and having considered the post- hearing brief,. I make the following: IIN)IN(S ( FA( I 1 JRISi)i( ItI)N I he complaint alleges, it is admitted, and I find that 1 1 is a New York corporation engaged in the manufacture and nonretail sale of theatrical properties., commonl' called "props." TTI annually derives revenue in excess of $50.00() from the sale and shipment of business goods from its prin- cipal place of business in Newburgh, New York. directly to points located outside the State of New York. It is admit- ted, and I find, that TTI is an employer and person engaged in commerce within the meaning of Sections 2(1), (21, (6), and (7). and 8(h)(4) of the Act. Nolan is engaged in the business of' painting scenery for theatrical productions at its principal place of business in Newburgh. New York. For the past 18 months 11- has subcontracted primarily to Nolan the painting of props. In addition, the record discloses that Nolan at all times mate- rial herein is and has been a member of' Theatrical Contrac- tors Association. Inc.. an employer association. Respondent and said employer association are parties to a collective- bargaining agreement. In view of the foregoing and the en- tire record. I find that Nolan at all material times herein is a person engaged in an industry affecting commerce, within the meaning of Sections 2(l), (6)1, and (7). and 8(b)(4) of the Act. 11. IlF .AI)OR ()R(ANIZAIIO(N INV()I.IvI) It is admitted, and I find, that the Respondent, United Scenic Artists. Local 829, Brotherhood of Painters and Al- lied Trades. AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. tilE AL.L.EGE) UNFAIR L ABOR PRA(I('E A. Setting TTI is engaged in the business of supplying theatrical settings, props, and draperies for Broadway productions. theatres, television, and motion pictures. It operates princi- pally as a general contractor, awarding to subcontractors 30() PAINTERS LOCAI. 829 the construction work, sculpture, draperies. and painting of scenery and props.' For approximately the past 18 months. TTI has generally subcontracted the painting of props to Nolan Scenery Studies, Inc. (herein Nolan). 2 On or about April 14, 1978,. TTI was awarded the scenic contract for the show "Stop The World I Want To Get Off." TTI sub- contracted the painting of scenery for the aforementioned show to Nolan on April 26.4 On or about May 3, TTI made its initial shipment of props and materials to Nolan for the painting of "Stop The World." On May 8, TTI made an additional shipment to Nolan for the same show and expe- rienced its first problem. The shipment comprised the basic backwall of a set called the environment unit and two props, an airplane and dragon's head. Peter Feller, pres- ident of TTI testified that Arnold Abramson, president of Nolan. called him on the morning of May 9. and told him that his employees had been in touch with the Union' and that they refused to paint the airplane or dragon's head because the props were not fabricated b them.' The, wanted the entire package. not only the painting. but to manufacture the props as well. The sculptured work on the airplane and dragon's head had been done for TTI by an- other subcontractor, namely. Costume Associates. Feller conveyed to Abramson that time was of the essence as un- der the contract the props had to be shipped to the theatre the foillowing day. It was estimated that it would take I day to paint these props. Later that day Abramson called Feller a second time to tell him that a union agent was coming to his plant and that one way or another he, Abramson. would see to it that the props were painted. Douglas LeBrecht. assistant union business agent, appeared for the very first time at the Nolan facility assertedly on a "fact-finding" mission. Abramson testified that LeBrecht spoke separately with the designer 7 of the show, some employees, and also to him. LeBrecht asked Abramson where the props came from to which Abramson revealed that they were shipped from TTI. On May 10, Abramson called union business repre- sentative Domingo Rodriguez and appealed to him for per- mission to have the props painted. Abramson explained that the show was going to San Diego in a day or two and 'The sequence is typically set in motion by an invitation to TTI (as one of a number of scenic suppliers) by the producer or set designer to attend estimating sessions wherein the production is discussed and drawings and sketches are provided. ITI then obtains estimates from various subcontrac- tors on the several phrases of the job and largely on the basis of such esti- mates, TTI submits its own bid for the overall work 2 Nolan is engaged in an arms length business relationship with TTI. Thus the stockholders. officers, supervisors, and employees are different. Further TTI does not exercise any control over Nolan's personnel polic) including, inter aim, wages and the hiring and firing of employees. 3 All dates hereinafter refer to 1978 unless otherwise indicated. ' See G.C. Exh 3A. Nolan employs scenic artists represented by United Scenic Artists. Local 829, Brotherhood of Painters and Allied Trades. AFt. ('10 (herein Respon- dent or Union) on an associationwide basis. The most recent collective- bargaining agreement between Theatrical Contractors Associatlin. Inc., of which Nolan is a constituent member and Respondent by its terms is effec- tivre November 30, 1976. to November 30. 1979 See Resp Fh. I. 6 The terms "fabricated." "manufactured." "executed." and "sculptured" herein are used interchangeably 7 The designer of the show "Stop The World" was Santol Ioquasto, a member of Respondent. No reason as advanced on the record far L.o- quasto's appearance at Nolan's lacilitS the record discloses that Respon- dent is notified of scenic supplier contracts from producers at the time the bids are accepted that there was precious little time to do the %%ork. Abraim- son also pointed out that it was better to have his emplo- ees do the work than nonunion employees. While Ahram- son won Rodriguez's approval on these props. the latter warned him that he would be fined on an) sculpture deliv- ered to him for painting in the future which Vx as not ex- ecuted (manufactured and painted) b Respondent's menm- bers. The fine ould he computed on the hasis of' the Union's estimate of how long it would take its menlbers to create such sculpture. Abramson called Feller and trans- mitted the substance of his earlier phone conversation \\ ith Rodriguez.R TTI was also the prime contractor of at thea;ltrical prodtlc- tion entitled "Working." In March and April. 1I1 subcon- tracted to Nolan the painting work or arious items or "Working". On Thursday. May I. 'Il made an addli- tional shipment to Nolan. This shipment comprised one wall, a last minute addition to "Working" which as to open the following Sunday night.' On May 12'. Abramsonl called Feller and told him that he would not he "allo cdl'' to paint the wall, his employees "absolutel'" reftsed to do the work. and he (Abramson) was theretore shippini it tin- painted to the theatre the following morning. At that time TTI had still another late addition for "Stop The VWorld." a large hand. With regard to this prop. Abramson told l-eller not to bother sending it over. On May I I. Union Business Representative Rocdrigtie dispatched a telegram to Nolan demanding that t stlop work on all sculpture not produced by Nolaln's eplocc's and accusing Nolan and TTI of an illegal conspirac\ to deprive said employees of work opportunities. he hbodl of the telegram in its entirety reads as follows: It has come to our attention that you intend to pailt sculpture which has not been produced hN scenic art- ists employed h) you. Painting of such sculpltir-e con- stitutes a flagrant violation oft' Section o the collec- tive bargaining agreement between IniteCL Scenic Artists Local 829 and Theatrical Contractors Associ- ation Inc., to which you are a party. We demalid that any and all work on such sculpture be stopped imine- diately and that you immediately compl 5 with ,oul contractual commitments. It has also come to our attention that Nolan has en- tered into an illegal conspiracy with 'heatre I'ech- niques. Inc. [TTI] to deprive scenic artists of orsrk op- "Feller was informed b) Abramson that he was told hS Rodriguez that he Union's action was also due to the antitrust suit brought b rtl against Ihc Union in district court IN 1976, TTI employed scenic artisls represented hs Respondent Since that time the work has been subontracted bs I I I to Nolan and other subcontractors. TII employees are presentlly ll unrepic- sented t is not asserted, and the record reveals that the nion h, not demanded recognition from TI 1. '(;(- Fxh. 4A-D). 10 This shipment was not covered by the presious writcie .irrangeinlciln. ((a. Fxh 4A-I)) The designer first brought the drawing '. on the rll I, rIT on Mas I10 It was contemplated that the wall w,ould he shilppcd to Nolan on May II. pa:nted on May 12. and compleled in time Ior rchc.,rtl on Saturday May 13 As noted .ihove. the show l, as set to pen Sgild; night. May 14 hus there was not sufficient time Io reduce the rralngclnlti ton the wall Io writing l'he record reveals. hoeC:er. that last Iinute ch lln c. o,r .iaddiltons aire not unuL.ual in the IndusItr and the arrlllgenletll , torlh c work thereon belween conlr.actor and subhcotracor is n .illia . firsl ic duced Ito wriing 31 D)IE('ISIONS ()1: NATIONAI. IABOR R.ATIONS BOARI) portunities. Please he advised that this Union will take appropriate action to the maximum extent permitted by law to counteract the effects o your improper ac- tivities. (i.C('. Exh. 5.] Abramson testified that he got a "message" from the tele- gram not to paint future sculptures sent for TTI. Abramson estimated that it would take at most I day to paint the wall in "Working." but refused to take the prop into the plant. The wall (prop) remained in the loading area at Nolan's facility for approximately 5 days and was never painted by his employees. Abramson gave two reasons: first the tele- gram: second he was extremely husy. B. ('rcdbliili v t ' The record reveals that Abramson is a member of Re- spondent and testified under subpena. He appeared reluc- tant to testify regarding his conversation with Union Busi- ness Respresentative Rodriguez or to otherwise testily regarding Respondent's actions. Thus, he vacillated regard- ing whether Rodriguez ever threatened to fine him fbr re- ceiving sculpture shipped by TTI which had not been pro- duced by his employees and finally admitted it when pressed and questioned about the Union's telegram. While I found Abramson to be equivocal in a number of in- stances, overall he substantially corroborated the testimony of Feller. With regard to union business representative Rodriguez. I found that his testimony did not smack of candor. Thus he asserted that he did not know that the wall had been shipped by TTI to Nolan until the show "Working" had closed in late May or early June. According to Rodriguez after he gave his approval on or about May I I to Nolan to paint the dragon's head and airplane for "Stop The World." he decided to consult with his attorney who ad- vised him to send the telegram. Abramson as previously noted, testified that the wall had been received and that it was not painted because of the May 11 telegram. In this connection Abramson testified that he got the "message" that Respondent would fine him for sculpture sent by TTI which was not produced by his employees. He would not even take the wall into his plant. In testifying regarding the time frame, Rodriguez acknowledged "I'm very bad on dates." At another point, when asked to describe the nature of his discussions with Abramson involving TTI he re- sponded, "I'm all mixed up." On the basis of the foregoing. and the entire record including the witnesses demeanor. I find that Rodriguez's testimony is unreliable. On the other hand I found Feller to be generally consis- tent and responsive. Further, it is noted that his testimony was largely corroborated by Abramson and documentary evidence. Accordingly I credit his testimony.' 2 -r The only itnesses to testify were Peter eiller of I It . Arnold 4bhramins of Nolan, and Domingo Rodriguez of Respondent. I While Respondent objected to both the teslimony of I eller and Abram- son insofar as it relates to statements assertedly made by Rodriguez to Ab- ramson on the basis of hearsay. it is noted that Ahramson corroborated Feller and that Rodriguez testified immediately after Abramson. Thus Rod- riguez had the opportunity to deny any of the representation, made by Ah- ramson to Feller i.s a-vis Rodriguez. It is noted that Respondent did not challenge the admissibility of such testimony In its brief. In these circum- stances. I discern no legally sufficient basis for excluding such testimony. C. Diti.¥s'.onfi nud ('ontcl/sions The General Counsel contends that the primary dispute herein involved TTI and Respondent. As noted heretofore TTI is engaged in competitive bidding for the manufacture of theatrical settings. and if' successful it obtains a contract from the producer. With contract in hand TTI has the "right to control" various phases of the job including the manufacture of props. TTi , as general or prime contractor. has exercised its right to control by awarding fabrication work to subcontractors other than Nolan. Nolan is then generally subcontracted for the painting thereon. The sub- contractors other than Nolan have a collective-bargaining ralationship with the International Alliance of Theatrical Stage Employees and not Respondent. According to the General Counsel Respondent's objective herein was to ac- quire "all" fabrication work assignments, including paint- ing for Nolan (or other company whose employees are rep- resented by Respondent). andl it could only reach such goal by pressuring TTI. In this regard, the General C'ounsel as- serts that the vehicle used by Respondent to exert pressure on '1TI was to force or require Nolan (a neutral or second- ary employer) to cease doing business with TI. This cease- doing-business object was assertedly achieved by work stoppages and threats to fine Nolan for TTI work it painted which was not produced by Respondent's members in vio- lation of Section 8(b)(4)(i) and (ii)(B) of the Act." On the other hand, counsel for Respondent asserts in his brief that "[tihe evidence firmly establishes that no work stoppage ever occurred at Nolan Scenery Studio." Accord- ing to Respondent, Nolan was too busy to paint the drag- on's head and airplane ftr "Stop The World" immediately and in any event these props, which arrived at Nolan on or about May 9 were painted and sent out with the show about a week after they were delivered. I find Respondent's assertion in this regard unconvincing and not supported by the credible evidence. Thus Feller testified, with corrobora- tion from Abramson, the latter told Feller on or about May 9 that his employees had been in touch with the Union and that they refused to paint these props because said props were not fabricated by them. Abramson told Feller that a union agent was coming to the shop and one way or an- other he would get the props painted. The agent turned out to be Assistant Business Representative Douglas l.eBrecht and while he spoke to Abramson it is clear that Respon- dent's approval to paint the props was not yet forthcoming. " Sec 8(bh4). inter alia, makes it an unfair labor practice for a labor organlizatiln or Its agents: (i) tl ergage n. or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting com- merce 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 gtoods. articles, materials. or commodities or to perform any ser- vices: or ii) to threaten. coerce, or restrain any; pers on engaged in com- merce or in an industry affecting commerce. where in either case an object thereof is B) forcing or requiring any person to cease using. selling. handling. transporting, or otherwise dealing in the products ot any other pro- ducer processor, or manufacturer. or to cease doing business with any other person . . Proid d. hat nthing c oninined in thi crlau-e (I R hall ht, onstrued to manen th unhl,/i. her' nl herwi.e unhimlii, an prorln rike , or prtorn p A cting 32 PAINItRS O1.()Al. 29 This did not happen until Abramson called Business Repre- sentative Rodriguez on May 10. (after LeBrechl had left) in an urgent plea for such approval. Abramson stressed how little time was available to paint these props and even sug- gested that it would be better to have his employees paint the props rather than have some nonunion subcontractors do the work. Even Rodriguez admitted that he "granted [Abramson] permission to paint that scenery. those two pieces of sculpture [dragon's head and airplane] and to ship it out with the show." Rodriguez testified that Abramson "thanked me for permitting him" to complete the work. In these circumstances the conclusion is inescapable that No- lan's employees, under the auspices of the Ulnion, engaged in a work stoppage vis-a-vis the dragon's head and airplane and that said work stoppage came to a halt only when Re- spondent took steps to end it."4 If Abramson took solace in such action, it was short lived. The employees engaged in another work stoppage the following day. Respondent denied that Rodriguez ever threatened to im- pose "any sort of financial penalty" on Nolan. According to Respondent, Rodriguez merely requested Abramson to cal- culate the hours of work time that would have been ex- pended had the two pieces been fabricated by Nolan em- ployees. According to Abramson Rodriguez told him "in essence" that the Union did not want him to paint sculpture that was manufactured by shops other than those represent- ed by Respondent. He testified that Rodriguez told him "that the Union would estimate what it cost to do that sculpture" and "Nolan would be assessed that amount." Shortly after Abramson's phone conversation with Rodri- guez, he received a last minute addition, namely a stone wall for the show "Working." Rodriguez thereon dis- patched a telegram to Nolan declaring to relevant part that "li]t has come to our attention that you intend to paint sculpture which has not been produced by scenic artists employed by you."" As Rodriguez had given Abramson permission on May 10 to have the dragon's head and air- plane painted for the show "Stop The World." the Union was evidently referring to the stone wall which had just arrived at Nolan. the same date that the telegram was dis- patched. The Union in the telegram demanded, inter alia. that "any and all work on such sculpture be stopped imme- diately" and threatened to take action to ensure that Nolan complied with said demand. Abramson testified that he got "a message" with regard to sculptures not produced by his employees from the telegram and he refused to take the wall into his shop. Abramson had already experienced a recent work stoppage vis-a-vis "Stop The World" and was told that the Union would fine him for doing work on other TTI props not produced by his employees. Therefore when he received the telegram on the heels of' the stone wall for "Working" he could reasonably anticipate similar union ac- tion. Thus. Abramson's assertion that he got "a message" 14 While there is no direct evidence ofl an declaralion hy the Ulnion to engage in work stoppages. their cmplicil, is plinls evldenl Iroin the total- ily o the circumstances as set forth herein See. e g. , - 25. Il1rnl trisotnl Brotherhood o/ Electrial 4orlers,. A FL ('10. v'i YtrA ilphphii' ('en pany) 162 NLRB 703. 718 719 1967). NI.R B v. x,(' t;,nion No. 3. nter national Brolherh xd of Estcirircal Hrerv, A41I. ('10. 467 2d 1158 (2d Cir. 1972). " See G ( xh S from the telegram is understandable. In any event he called Rodriguez for clarification and was told that it was sent on the advise of his attorney. Hlowever at another point Ah- ramson volunteered that a that time Rodriguez discussed the penally. lie called Feller and told him that "lhel wasn't about to paint it." Feller credibly testified that Abramson told him that he (Abramson) w ould send that wall unpaint- ed to the theatre because his employees "absolutely" refuse to paint it. While at one point Abramson gave two reasons why the wall had not been painted, it is noted that the first reason he advanced was the telegram. lie gave as another reason that he was extremely busy. I accept the former rea- son (telegram) as the principal factor regarding his decision not to paint the wall. hat Respondent was successful in securing compliance with its demand is further manifest by Abramson's response to Feller when Feller mentioned to Abramson that he had still another late addition tor "Stop The World" a large hand, and Abramson told him not to bother sending it over. In these circumstances. I find that Respondent threatened to impose fines' and engage in fur- ther work stoppages. Respondent denied that its object was to cause Nolan to cease doing business with TI'. but rather to enforce the work preservation provisions in its collective-bargaining agreement with Nolan. Respondent relies largely on Su- preme Court decisions in \ationail l oiodwor k and more recently in Enierprise. For reasons stated inlra. I find that Nationill Woodwork is factually distinguishable and that Enterprise while relevant actually supports the General Counsel's allegations herein of 8(b)(4) violations. Respondent relies on the scope clause in its contract which in pertinent part reads as follows: I. Scope: .... For the purpose of clarification, it is specifically pro- vided herein that the jurisdiction of the Union shall include all Scenic Artists work f'or Broadwa, and Re- gional Theatres........ etc. Ihis includes painling and application of all decorative material when applied by any means including all scenic creative art work. whether applied b painting or otherwise. It is agreed between the parties that the urisdicriron of' the lnion with regard to ciulplurtng shall include drawings. pounces and application of pounces. modeling or .cculpluring over and above the rough blocking, in ac- cordance with past practice.'9 [Emphasis supplied.] Respondent maintains that under its scope clause paint- ing includes sculpture (fabrication) and its jurisdiction en- compasses all such work. According to Respondent the events giving rise to the instate case grew out of a series of grievances by the employees of Nolan concerning 1H' sculpture work which was produced b subcontractors rSe. e g. Sheet ' fe tal f rklcr Internalltimal 4'ivs , flcano. loa/ tI ntio % 22. AFt () fc',mllnnIa1Ai Fdterll ('milwaIw) 196 Nl RB 55 41972i I V ll ,,l1 ihi -,. ,,irA Soit iu/l, orI-rr 4 tV,. ti,,i I I R B, 3t6 t S 612 (1967) I N 1. R B b nterprle 4i z ito, i/ S'i'am. Inot t sir. I If I rtuh. S'rn A /r , Pn ,,u .... . h , f tnc a A .iniri Pqip tte'ri ,5 %'u- ),,rk uii/ I i, m lt. I. It .. .. Iun % 6J,t 429 t S s507 (1977) ' See Resp lxh I 33 I)F'CISIONS OF NATIONAL LABOR REL.AIIONS BOARD other than Nolan. Union business representative Rodriguez was the only Respondent witness to testify in support thereof. According to Rodriguez, since as early as Febru- ary, Nolan employees had called the Union to complain that scenery had been painted by Nolan which had been produced by Nolan employees. Some of these calls were assertedly received by Assistant Business Representative LeBrecht. Noting. however, that I have found Rodriguez unreliable for reasons stated previously, and in the absence of any corroboration. I am unconvinced that employee grievances had anything to do with the instant dispute. The information regarding TTI scenery which was produced by subcontractors other than Nolan could have been obtained from producers, designers, or from phone calls regularly made by union staff members to employees in shops repre- sented by Respondent. For reasons stated below, however, I deem it unnecessary to dwell or speculate further on the alleged grievances. As I have previously found union in- volvement in the work stoppages and threats to fine Nolan, the critical issue is whether under the circumstances herein. the contractual provision is a valid defense to such activities or to Section 8(b)(4)(B) of the Act. 20 A comparison of the scope clause herein with the work preservation provision (entitled rule 17) in National Wood- work. relied on by Respondent, discloses that in letter and in spirit they are vastly different. The former defines the scope of work performed by scenic artists under the con- tract, whereas the latter, inter alia, is a constraint on certain work. Thus, a sentence in rule 17 provides that "no member of this District Council will handle ... any doors ... which have been fitted prior to being furnished on the job ... " In National Woodwork, Frouge Corporation, a general contractor, was subject to a collective-bargaining agree- ment between a carpenters union and a contractor's associ- ation which contained rule 17. Notwithstanding said rule. Frouge purchased perfabricated doors and when the doors were delivered to the jobsite, Frouge employees under or- ders from the union refused to hang the doors. In determin- ing whether such refusal to handle was permissible primary activity or proscribed secondary coercion the Supreme Court inquired as follows: [Whether] under all the surrounding circumstances, the Union's objective was preservation of work for Frouge's employees, or whether the agreements and boycott were tactically calculated to satisfy union ob- jectives elsewhere. Were the latter the case, Frouge. the boycotting employer, would be a neutral bystander. and the agreement or boycott would, within the intent of Congress become secondary. There need not be an actual dispute with the boycotted employer, here the door manufacturer, for the activity to fall within this category, so long as the tactical object of the agree- ment and its maintenance is that employer, or benefits to other than the boycotting employees or other em- ployees of the primary employer thus making the agreement or boycott secondary in its aim. The touch- stone is whether the agreement or its maintenance is o See N. L. R. B v. Enterprise A.4sociatioin, lc, scupra at 515. addressed to the labor relations of the contracting em- ployer is-a-vis his own employees. 2' In National 14'odvwork, Frouge's contract for the con- struction work did not mandate prefabricated doors. Thus. he had "control" over the nature of the subcontracting and could have complied with rule 17. It was noted that the union's refusal to hang or further handle prefabricated doors was aimed at preserving work by Frouge's employees on the jobsite without regard to whether or not it was union members who manufactured the doors off the jobsite.22 Un- der all the surrounding circumstances, the Supreme Court held the union's maintenance and enforcement of the work preservation clause (rule 17) against Frouge was permissi- ble primary activity. In the instant case the salient facts tend to militate against finding that the contracting party (Nolan) in con- trast to the general contractor (Frouge) in National Wood- work is the primary employer. As noted above. Nolan is not subject to any agreement with a "refusal to handle" provi- sion. On the contrary the contract herein contains a "no strike" pledge (Resp. Exh. I p.3) with grievance machinery including "speedy arbitration" for the "adjustment of all complaints, disputes, controversies, and grievances of anv kind or nature arising between the Employer and the Union concerning the interpretation, operation, application or per- formance of the terms of this agreement .. " (Emphasis supplied.)23 In further contrast to National Woodwork, the credible evidence disclosed that Nolan (unlike Frouge) was not the prime contracter and was therefore powerless to assign the disputed work to his employees. 24 This could only be ac- complished by the Union exerting pressure on Nolan. to force Nolan to cease doing business with TTI (general con- tractor) with the expectation that such secondary pressures would compel TTI to award all sculpturing work to Nolan or other companies under contract with Respondent. Still further contrast with National Woodwork is the fact. as credibly as testified to by Abramson. that Rodriguez re- moved union obsticles, to painting the dragon's head and airplane because he concluded that it was better to have Nolan employees paint these props than a nonunion con- tractor. As noted above, the Union's object in National Woodwork was only to preserve unit work on the jobsite without regard to whether a union or nonunion contractor prebuilt the doors. On the other hand the Union's object herein was to acquire all fabrication work for Nolan or other companies under contract with Respondent rather than in preserving unit work. On the basis of the totality of circumstances herein, I conclude that work preservation is not a valid defense to Respondent's work stoppages and threats of economic coer- cion. Accordingly I find that by such acts and conduct 21 National 4ooddork Mnulaclurers 4A ,olatiln . I . RB, upra at 644 645 " Id at 646. 2 Resp. Exh. I See N L. R. B v. Enterpri.se 4 Sioatirn oSf tXeiumtizterr. uprl at 530: .o cal nion Vo, 48.5 United A4ssocctafion Journevm'mn and Apprentlc-e o the Plumbing and Pipe Fting Indtrn, o the L'nited Sie and (anadu,l A F. ('/O (George Koh Son. In,). 201 N.RB 59 (1973., nid. 490 F. 2d 323 (4th ('ir 1973). 34 PAINIFRS OC('AI. 89 Respondent violated Section 8(hb)(4)i) and (ii)(B) of the Act. ?2 (o( I SIONS ()l l.A I. Theatre Techniques, Inc., (herein called 'TI)} is an employer engaged in commerce within the meaning of Sec- tions 2(l), (2), (61, and (7), and 8(b)(4) of the Act. 2. Nolan Scenery Studios, Inc. (herein called Nolan) is a person engaged in an industry affecting commerce. within the meaning of Sections 2(1). (6), and (7), and 8(b)(4) of the Act. 3. United Scenic Artists, Local 829, Brotherhood of Painters and Allied Trades. AFI. ('IO (herein also called Respondent or Union) is a labor organization within the meaning of Section 2(5) of the Act. 4. By its involvement in work stoppages and threats to fine Nolan, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMDi)Y The General Counsel for the first time in its brief urges a broad cease-and-desist order extending coverage, inter a/ia, "where . . . an object thereof is to force or require Nolan Scenery Studios, Inc. or any other person engaged in com- merce or in an industry affecting commerce to cease using, selling, handling, or otherwise dealing in the products of or to cease doing business with Theatre Techniques, or any other person." (Emphasis supplied.) In support thereof, the General Counsel relies on two cases, neither one of which involved 8(bX4) violations. Moreover, one of these cases involved a non-Board settlement. In these circumstances I find an insufficient demonstration of productivity to war- rant the broad order as requested. Accordingly it is hereby denied . 6 Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 25 N. L.R.B. v. Enterprise Association of Steam Pipefitters, supra, Cf. Nao- tional Woodwork Manufacturers Association v. N L. R. B., supra. 26 See National Association of Broadcast Employees and Technicians, A FL CIO, Local 31 (CBS Inc.), 237 NLRB 1370 (1978); Cf. Local 945, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, (Newark Disposal Service, Inc.) 231 NLRB I (1977). The Respondent, I nited Scenic Artist. Iocal 829. [United Brotherhood of Painters and Allied I'ades. Al ('(). its otlicers. agents, and representatives, and all persons acting in concert or participation with them shall: 1. Cease and desist from: (a) IEngaging in, or inducing. or encouraging an' individ- ual employed by Nolan Scener Studios. Inc.. or any other person engaged in commerce or in an industry aflectiln commerce to engage in a strike or a refusal in the course Of such individual's employrment: to use manufacture process transport o otherwise handle or ork on any goods arti- cles, materials, or commodities; or to perform any services; or (b) In any manner or b5 any means including threats to impose tinancial penalties and work stoppages threatening restraining or coercing Nolan Scenery Studios. Inc.. or an other person engaged in commerce or in an industry affect- ing commerce: where in either case under (a) or (h) above an object thereof is to force or require Nolan Scenery Stu- dios. Inc.. or any other person engaged in commerce or in an industry affecting commerce to cease using, selling. han- dling, or otherwise dealing in the products of or to cease doing business with Theatre Techniques. Inc. 2. Take the following affirmative action which is tournd necessary to effectuate the policies of the Act: (a) Post at its principal office copies of the attached No- tice to Members marked "Appendix." 2> Copies of' the said notice to be furnished by the Regional Director. Region 2. after begin duly signed by Respondent's authorized repre- sentative. shall be posted immediately upon receipt thereof and maintained for 60 consecutive days thereafter in con- spicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps should be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notil', the Regional Director. Region 2. in writing within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. =* In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the Narional. Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec 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. 21 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order oft the National l.abolr Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional l.abor Relations Board." ORIDFR 27 3s