Carpenters Local 102 (Sigmadyne Corp.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Millwrights Union, Local 102, of the United Brother- hood of Carpenters & Joiners of America, AFL- CIO (Sigmadyne Corp.) and Anthony L. Elshout. Case 32-CC-102 March 23, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On December 22, 1978, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a brief. 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 the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Millwrights Union, Local 102, of the United Brotherhood of Carpenters & Join- ers of America, AFL-CIO, Richmond, California, its officers, agents, and representatives, shall take the ac- tion set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. 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 carefully examined the record and find no basis for reversing his findings. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage any indi- vidual employed by Sigmadyne or Mahoney, or any other person, to refuse to work or render services in the course of his employment, nor will we threaten, coerce, or restrain Sigmadyne or Mahoney, or any other person, by picketing or any other means where, in either case, an object thereof is to force or require Sigmadyne or Ma- honey, or any other person, to cease doing busi- ness with Sano or Pacific. MILLWRIGHTS UNION, LOCAL 102, OF THE UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard in Oakland, California on October 30, 1978.1 The complaint,' issued June 29, is based upon a charge filed June 15 by Anthony Elshout. an individual. The complaint alleges that Millwright Union, Local 102, of the United Brotherhood of Carpenters & Joiners of Amer- ica, AFL CIO (Respondent or Union) violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been care- fully considered, were filed on behalf of the General Coun- sel and Respondent. Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. JURISDICTION At all times material herein Sigmadyne has been a Cali- fornia corporation with a principal place of business in Richmond, California, where it is engaged in constructing a manufacturing facility (herein referred to as the jobsite). During the past 12 months Sigmadyne purchased and re- ceived at the jobsite goods, supplies, and services valued in excess of $50,000 directly from suppliers located outside the State of California. At all times material herein Sano Design and Machine Co., Inc. (Sano) has been a New Jersey corporation with a principal place of business in Passaic, New Jersey, where it is engaged in the manufacture, installation, and sale of ma- chinery. During the past 12 months Sano, in the course and conduct of its business operations in New Jersey, sold and shipped goods and services valued at more than $50,000 directly to users located outside the State of New Jersey. I find that Sigmadyne and Sano, and each of them, are, and at all times material herein have been, employers and persons engaged in commerce or in industries affecting commerce, within the meaning of Section 2(1), (2), (6), and (7) of the Act. ' Unless otherwise stated, all dates herein are within 1978. As amended at the hearing, to correct the name of Signadyne Corp. to Sigmadyne Corp. (Sigmadyne). 3 All individuals herein are referred to by their last names. 241 NLRB No. 62 392 CARPENTERS LOCAL 102 At times material herein Sigmadyne contracted to Maho- ney Contracting, Inc. (Mahoney), renovation and expan- sion of the production area of the jobsite, and Mahoney subcontracted to C & H Skaffolding, Inc. (C & H) erection of scaffolding at the jobsite. At times material herein Sano and Pacific Engineering Company, Incorporated (Pacific) have been contractually obligated to furnish and install manufacturing machinery for Sigmadyne at the jobsite. I find that Mahoney, C & H, and Pacific are, and at all times material herein have been, persons engaged in com- merce or in industries affecting commerce within the mean- ing of Section 2(1), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Millwrights Union, Local 102, of the United Brother- hood of Carpenters & Joiners of America, AFL-CIO is, and at all times material herein has been, a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background' Sigmadyne has two operations. One is the importation and sale of plastic film, and the other is the manufacture of plastic film products. The first operation commenced in January, 1978, after Sigmadyne was incorporated on Au- gust 10, 1977. The second operation was intiated approxi- mately August 3, 1978. In order to engage in the second operation it was necessary for Sigmadyne to purchase, and have installed, production and other equipment. Principal production equipment consists of machinery to melt and extrude plastic film, and machinery to melt and deliver resin to the extrusion equipment. The extrusion equipment was purchased from Sano; the resin handling equipment was purchased from Pacific. The purchase contract with Sano was executed in Octo- ber, 1977, with a delivery date in May. Sano was obligated under the contract to install the equipment. The Sano equipment arrived at the plant May 12, and the installation crew arrived May 29.5 The crew departed June 2, by which date some installation. but not all of it, had been completed. Edward Vincent, Respondent's business representative, visited the Sigmadyne plant on several occasions 6 and dis- cussed with Sigmadyne's president, Elshout, installation of the Sano equipment. Vincent contended that the installa- tion work was within Respondent's jurisdiction, and must be performed by union members. By letter dated June 13,' addressed to Sigmadyne, Vincent contended that Sigma- dyne was employing millwrights at below union wages and benefits, and stated that the Union would picket the jobsite ' This background summary is based upon credited, uncontradicted testi- mony and evidence, and upon facts not in dispute. 5Sano uses a roving installation crew. The crew arrived at Sigmadyne from its previous installation job in El Salvador. The crew's schedule is not inflexible. 6 Dates of the visits, and conversations between Vincent and Elshout, are in dispute, as discussed infra. ' G.C. Exh. 2. unless union wages and benefits were paid to those employ- ees. On June 13 Elshout sent the following telegram to Vin- cent: DEAR MR. VINCENT: PLEASE BE ADVISED THAT RESERVED GATES WILL BE ES- TABLISHED BY 8 AM JUNE 14. 1978 AT SIGMADYNE CORP 1060 HENSLEY ST RICHMOND CA GATE ] IS RESERVED FOR THE EXCLUSIVE USE OF ALL TRADES EXCEPT PACIFIC ENGINEERING CO AND SANO DESIGN COMPANY AND IS CLEARLY MARKED. GATE 2 LOCATED ADJACENT TO GATE I IS RESERVED FOR THE EXCLUSIVE USE OF SANO DESIGN AND PACIFIC ENGINEERING AND IS CLEARLY MARKED ANTHONY L. ELSHOUT, PRESIDENT, SIGMADYNE CORP (1060 HENSLEY ST RICHMOND CA 94804) By letter of June 14s Elshout replied to Vincent, and stated, inter alia, that Sigmadyne employed no millwrights or any other construction employees; that Sigmadyne's employees consisted of three corporate officers and an office manager. Respondent commenced picketing the jobsite on June 14, with picket signs reading: SIGMADYNE WAGES & CONDITIONS BELOW STANDARDS ESTABLISHED BY MILLWRIGHTS LOCAL 102 Shortly after arriving at work on June 14, and seeing the pickets, Elshout posted two reserved gate signs,9 reading: NOTICE GATE NO. I this gate reserved for the exclusive use of sigmadyne their employers & suppliers. all others use gate two NOTICE GATE NO. 2 THIS GATE FOR THE EXCLUSIVE USE OF ALL CONTRAC- TORS. SUBCONTRACTORS, THEIR EMPLOYEES & SUPPLIERS EXCEPTION SIGMADYNE ALL OTHER EMPLOYERS & SUP- PLIERS USE GATE NO. I On June 15 the picket signs were changed by inserting "Sano Design" where "Sigmadyne" previously appeared. Elshout then changed the two reserved gate signs by adding "Sano Design" after "Sigmadyne." On June 16 the picket signs were changed by inserting "Pacific Engineering" where "Sano Design" previously ap- peared. Elshout then changed the two reserved gate signs by adding "Pacific Eng. Co." after "Sano Design." The picket and reserved gate signs remained the same from June 16 to 20, when picketing ceased. Pacific equipment was delivered June 29,10 and was in- stalled in I day by millwrights furnished by a labor contrac- I G.C. Exh. 3. 9 Photographs of the signs are G.C. Exhs. 5a and Sb. '0This was the first time Pacific employees had been on the worksite. 393 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tor. Sano's crew completed installation of Sano equipment July 30, after being on the jobsite since July 10. A. Nature of the Installation Work, and Vincent's Knowledge Elshout testified: His contract with Sano provided for installation of the Sano equipment by a Sano crew, and he first knew of the May 12 delivery date, when he was so advised by Sano approximately May 7. The installation crew arrived at the jobsite May 29, 2 days after Elshout first was notified of their intended arrival. On May 19 Vincent called on Elshout, said he had been in he plant and saw the equipment, and stated that all installation had to be done by millwrights, 75 percent of whom must be supplied by Local 102. Vincent said he had seen carpenters" in the plant yard, that carpenters were affiliated with millwrights, and that, if the installation were not done by millwrights there would "be trouble" with the carpenters. Elshout then explained that he was obligated by his contract to have all installation done by the supplier of the equipment. Vincent asked for the name of the supplier, and Elshout declined to reveal the name. Vincent left, and returned June 5, after the installation crew had left. Vincent and Elshout again dis- cussed the problem much as they had on May 19, Vincent asked the name of the supplier, and Elshout told him it was Sano. Elshout also gave Vincent names of representatives, and telephone numbers, of Sano and Pacific. Vincent called an official of Sano on the telephone and again visited Els- hout June 12, at which time the two had a conversation in the same vein as on May 19 and June 5. Vincent testified: He first visited Elshout June 6, at which time Elshout said the equipment merely had been moved into the plant and set in place; it "wasn't leveled or lined up or anything." Elshout said "his people" had erected a tower, but left an extruder underneath it. Thereafter Vin- cent visited Elshout several times, but never was told who was doing the installation, or when it would be done, other than to refer to the fact that "his people" had performed some of the installation that was not completed as of June 6. Discussion Elshout was a convincing witness, who answered all questions completely and without hesitation. Vincent's tes- timony was not of equal caliber. His testimony was not firm, and at some points seemed deliberately evasive. Vin- cent did not deny, or seemed uncertain about, much of Els- hout's testimony. Elshout is credited, and his version of all incidents concerning which he testified, is accepted as fac- tual. To the extent that Vincent's testimony differs from that of Elshout, the latter is credited. Based upon Elshout's testimony, it is found that Vincent was fully aware at all times after May 19, that the equip- ment at the Sigmadyne plant was being installed by Sano, and that Sigmadyne employed no carpenters or millwrights. n These carpenters were Mahoney employees. 12 Elshout credibly testified that a Mr. Brady of Pacific told him June 7 that Vincent had called and said all installation work at Sigmadyne's plant must be performed by millwrights from Local 102. It is further found that Vincent visited the plant on several occasions on and after May 19, and was fully aware of the nature of the installation, and the nature of Sigmadyne's work force, which consisted only of office personnel. B. The Reserved Gates and Their Use Elshout testified: He established two reserved gates, as described above, and kept them in use between June 14 and 20. Gate No. I was near the driveway leading to the office, and initially was reserved for Sigmadyne and its employees. Gate No. 2 was near the driveway leading to the plant yard, and initially was reserved tbor everyone except Sigmadyne. When Elshout arrived at work June 14, Respondent's pick- ets were in front of the driveway leading to the plant yard. After posting the two reserved gate signs, Elshout asked Vincent to move the pickets to Gate No. 1, near Sigma- dyne's office. Vincent told Elshout to talk with the Union's lawyer. Elshout then asked the pickets to move. They said "Yes," but did not move. On June 15 the picket signs had the new words "Sano Design," and on June 16 had the new words "Pacific Eng. Co." On each of those days Elshout added the same words to the reserved gate signs, as ex- plained supra. On each workday, June 14, 15, 16, 19, and 20, the pickets were at reserved Gate No. 2. On each of such days Elshout talked with Vincent and the pickets and asked them to move the picketing to Gate No. 1. On no occasion did the pickets move. At no time was there any picketing at Gate No. I or at the parking lot available to all persons, or at any place other than Gate No. 2.'3 On June 20, Elshout and Vincent agreed that the pickets would be removed if Elshout would notify Vincent when either Sano or Pacific would be on the jobsite. The pickets were re- moved at 8 a.m. on June 20. No employee or representative of Sano or Pacific was present on the jobsite between June 2 and July 10. Vincent testified: He had been forbidden by Elshout to come onto the jobsite without permission, by letter dated June 12.'' Therefore, when he received Elshout's letter of June 13 concerning establishment of the reserved gates, he assumed that installation work would be commencing again. When he went to the jobsite June 14 to establish the picket line, "the gates were exactly reversed of what the telegram told me they would be." After Elshout made a change in the reserved gate signs: A. I did not know the legality of him changing the signs and moving the people around and I checked with my attorney daily and he told me I would have to move the pickets, the next day when I established the pickets, I moved them to comply with the wording on the signs. Discussion Vincent's testimony on this subject is given no credence. Elshout's testimony is credited in its entirety. 't Elshout testified that, prior to 10:20 a.m. each day, one picket occasion- ally walked to and from the Gate No. I area, while another picket remained at Gate No. 2. but that such walking to and from Gate No. I ceased each day by 10 a.m. "4 Resp. Exh. 1. 394 CARPENTERS LOCAL 102 It is clear, and fiund, that Elshout clearly and properly posted reserved gate signs,'' that the signs were readable and understandable. that the signs were posted in correct and reasonable places, and that Vincent and the picketers directed hb him intentionally and deliberately disregarded the signs and picketed at Gate No. 2. reserved for all per- sons and firms other than Sigmadyne. Sano, and Pacific. C. Effect of Picketing at Gate No. 2 Elshout testified: Prior to June 14, drivers for Mahoney. with whom Sigmadyne had a contractual relationship, cus- tomarily parked in the general parking area outside the of- fice and plant area, and walked through Gate No. 2 in order to work at the jobsite. On June 14 Mahoney workmen parked in the parking area as usual, walked to Gate No. 2. talked with Vincent and the pickets, and refused to cross the picket line to work at the jobsite. The Mahoney work- men left the premises, without going to work at the jobsite. The same course of action was followed by Mahoney work- men on June 15 and 16. None of those workmen came to the jobsite on June 19 and 20. Vicent testified: The pickets told him June 19 and 20 that "nobody had shown up." which he understood to mean that no one from Sano or Pacific arrived on the premises. Discussion Elshout's testimony on this subject is given full credence. It is quite clear. and found, that Respondent's picket line resulted in refusal of Mahoney workmen to work at the jobsite. It is equally clear, and found. that no employee or repre- sentative of Sano or Pacific was present on the jobsite be- tween June 2 and July 10. Finally, Vincent testified that he was advised by the pick- eters on June 19 and 20 that no employee had arrived at the worksite. D. Post-June 20 Events Pursuant to his agreement with Vincent on June 20, Els- hout notified Vincent on July 7 that he had been advised Sano installation representatives would return to the jobsite July 10. Elshout credibly testified that he first learned of the July 10 return date, when he was so advised by Sano be- tween Jul' 5 and 7. On July 10 Vincent was at the jobsite. and upon questioning by Elshout as to how Sigmadyne could get the Union off its back, replied "Employ some millwrights." Elshout agreed, but necessity for that action later was precluded by an intervening injunction. Sano's installation crew was at the jobsite until July 30. Analysis Respondent's principal defense is that the Union neither knew, nor had reason to know, that no employee of Sano or I The fact that the 1o gate locations were reversed from those named in the telegram of June 13 is immaterial. The signs were large and clearly readable. II is clear that Vincent and the pickets were well aware of gate locations and reservations and deliberately confined picketing to Gate No 2. even after being asked to move to (;ate No I Pacific was on the worksite during the picketing between June 14 and 20. That argument is contrary to the facts of record. 1. The pickets were at the jobsite each day from June 14 to the morning of June 20. Both reserved gates to the plant, and the parking area for the jobsite, were within close and immediate eyesight from the picketing area. Because of the concern the pickets had with all activity at the plant, it is inferred that they were aware of the fact that no Sano or Pacific employees or vehicles came to the plant between June 14 and 20. The pickets were in daily contact with Vincent. and it is inferred that their knowledge became that of Vincent. 2. Elshout testified, credibly and without denial by Vin- cent, that Vincent was on the jobsite at the beginning and end of the picketing, and each morning during picketing. Both reserved gates, and the parking lot for the plant, were within Vincent's direct vision. It is clear that Vincent knew that no Sano or Pacific employees or vehicles came to the jobsite between June 14 and 20. 3. When first displayed at the jobsite, the picket signs named only Sigmadyne as the picketing target. Clearly, Re- spondent was not concerned with Sano or Pacific at that time. Names of the latter two companies appeared on the picket signs on days after June 14. 4. Vincent testified that he talked with Elshout during the morning of June 20: A. I told him that I was going to pull the pickets as a matter of good faith and that I would appreciate a call when Sano and Pacific people did come back. By his own testimony, Vincent knew that no Sano or Pacific employee was on the jobsite. 5. Vincent testified that the pickets told him on June 19 that no one, meaning no Sano or Pacific employee, arrived at the jobsite on June 19. yet the pickets were kept on the picket line all day June 19, and returned to picket on June 20, until removed by agreement between Elshout and Vin- cent. Respondent argues that Sigmadyne notified Respondent by telegram on June 13 that reserved gates would be estab- lished June 14. hence, that Respondent was entitled to as- sume that Sano and Pacific employees would be on the job June 14. That argument is without merit. If Respondent had made such an assumption, the names of Sano and Pa- cific would have appeared on the picket signs June 14. Sa- no's name did not appear until June 15, and Pacific's name did not appear until June 16. Respondent argues that the General Counsel seeks to im- pose upon Respondent the affirmative duty of ascertaining that Sano and Pacific were on the jobsite. No such at- tempted imposition is shown. As discussed supra, Elshout and Vincent frequently discussed Sigmadyne's contract with Sano., and Vincent was fully aware that no employee of Sano or Pacific was at the jobsite from June 14 through the morning of June 20. Picketing during that period of time transgressed the picketing standards established in Moore Dr3' Dock Company. 6 Vincent also knew, through personal observation. that Pacific was not on the jobsite at any time prior to June 21. 1'92 NI.RB 547 (1950). 395 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusion It is clear from the foregoing, that the purpose of Re- spondent's picketing was to enmesh Sigmadyne and Maho- ney, who are neutral employers, in Respondent's dispute with Sano and Pacific, who are primary employers with whom Respondent immediately was concerned. Vincent well knew that Sigmadyne employed no millwrights, and he knew that Sano and Pacific were to do all installation work. Vincent also knew that pickets would preclude installation and related work, and that the picketing was being done while no employee of Sano or Pacific was on the premises. The object of the picketing was clear-to force Sigmadyne to cancel its contracts with Sano and Pacific, to do its own installation work, and to employ Respondent's millwrights on that work. Work standards were not involved. By picket- ing at a gate clearly and properly reserved for persons and firms other than Sigmadyne, Sano, and Pacific at a time when Sano and Pacific were not on, or expected to come onto, the jobsite, Respondent evinced its intent to violate the Act." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III above, oc- curring in connection with the operations of Respondent 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 burden- ing and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b)(4)(i) and (ii)(B), it will be recommended that the Board enter a cease and desist order. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By picketing the Sigmadyne jobsite from June 14 through part of June 20, 1978, as found herein, Respondent engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 17 Carpenters District Council of Southern Colorado and its Local Union 362 (Pace Construction Company), 222 NLRB 613 (1976), and cases cited therein. ORDER It having been found and concluded that Respondent Union has violated Section 8(b)(4)(i) and (ii)(B) of the Act, said Union shall: I. Cease and desist from: (a) Engaging in, inducing, and encouraging individuals employed by Sigmadyne and Mahoney, and by other per- sons engaged in commerce or in an industry affecting com- merce, to engage in strikes or refusals in the course of their employment to use, manufacture, process, transport, or oth- erwise handle or work on goods, articles, materials, or com- modities or to perform services, with an object of forcing or requiring Sigmadyne and Mahoney, or any other employer or persons to cease using, handling, or otherwise dealing in the products of any other producer, processor, or manufac- turer, or to cease doing business with Sano or Pacific. (b) Threatening, restraining, or coercing Sigmadyne and Mahoney, or any other persons or firms engaged in com- merce or in an industry affecting commerce with whom they have no primary dispute, where an object thereof is to force or require such persons or firms to cease doing busi- ness with Sano or Pacific, or with their customers and sup- pliers, under circumstances prohibited by Section 8(b)(4) of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post in conspicuous places at its business office and meeting places, including all places where notices to its members customarily are posted, copies of the attached no- tice marked "Appendix."'9 Copies of said notice, or forms provided by the Regional Director for Region 32, shall, af- ter being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said notices are not altered, de- faced, or covered by any other material. (b) Sign and mail a sufficient number of copies of said notice to the Regional Director of Region 32, for posting by Sigmadyne and Mahoney, such employers being willing, at all places where notices to their respective employees cus- tomarily are posted. (c) Notify the Regional Director for Region 32, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 1t In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National 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. 1' 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 of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. 396