Local No. 48

LOCAL NO. 48 287 CONCLUSIONS OF LAW 1. Nibco, Inc., is an employer within the meaning of Section 2 (2) of the Act, and ,is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating with respect to the hire and tenure of employment of Lewis R. Thomas, thereby discouraging the free exercise of rights guaranteed by Section 7 'of the Act and discouraging membership in and activities for the above-mentioned labor , organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act , the Respondent has engaged in and is en- gaging m unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Local No. 48, Sheet Metal Workers International Association, AFL-CIO, and its agents, W. J. McDowell and T. E. Reid '[Gads- den Heating and Sheet Metal Company] and Mark Louis Talia- ferro Sheet Metal Workers International Association , AFL-CIO, and its agent, C. J. Heckel and Mark Louis Taliaferro. Cases Nos. 10-CD-76 and 10-CD-77. October 31, 1957 -DECISION AND DETERMINATION OF DISPUTE On December 31, 1956, Mark Louis Taliaferro filed charges with the Regional Director for the Tenth Region, and amended charges thereafter, alleging that Local No. 48 and its agents, McDowell and Reid, and also the International and its "agent, Heckel, had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charges and'provided for an appropriate hearing upon due notice. The hearing was held at Gadsden, Alabama, on February 28 and March 1, 195.7, before Louis Libbin, hearing officer. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing were free from prejudicial error and are hereby affirmed. All parties filed briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. Leach Manufacturing Company is engaged in commerce within the meaning of the Act. 119 NLRB No. 30. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Local No. 48, Sheet Metal Workers International Association,. AFL-CIO, and Sheet Metal Workers International Association,. AFL-CIO, are each labor organizations within the meaning of the Act. W. J. McDowell and T. E. Reid are agents of Local 48, and C. J. Heckel is an agent of the International. 3. Gadsden Heating and Sheet Metal Company is, and for many years has been, a corporation owned and operated in effect by brothers Owen and Holt Leach as a general sheet metal shop. Gadsden Co., as a member of a construction industry employers' asso- ciation, had recognized and contracted with Local 48 for its sheet metal workers since 1949, although not pursuant to any Board certifi- cation. At the time of the original contract in 1949 and again in 1953, Local 48 had orally agreed with Gadsden Co. that the contracts would not cover the sheet metal workers of Leach Mfg. (or its prede- cessor). Leach Mfg., a partnership also composed of Owen and Holt Leach, was then operating almost exclusively as a small metal-awning factory, in an adjoining building with a common party wall. Leach Mfg. did virtually no general sheet metal work and Gadsden Co. no longer engaged in awning operations at that time. Late in 1954 or early in 1955 Leach Mfg., while continuing to operate its awning business in the city of Gadsden, began a move to Alabama City, 3 miles away, where it undertook new sheet metal operations, similar to but not identical with those theretofore per- formed by Gadsden Co. Leach Mfg. did not limit its employment of sheet metal workers to craftsmen. Its heavy machinery for making these new products was acquired on an oral lease from Gadsden Co., whose sheet metal workers had theretofore been operating such ma- chinery and had made virtually identical items in many instances. Contemporaneous with the move, according to an exhibit put in evi- dence by the Charging Party, Gadsden Co.'s employment of sheet metal workers shrank by 50 percent, or 5 employees, from an average of 9 or 10 to 4 or 5. Meanwhile, according to the testimony of Holt Leach, the manager of Leach Mfg., the number of employees on the payroll of Leach Mfg. increased by 50 percent, or 6 employees, from 13 in January 1955 to 19 by January 1956 (and still further increased to 24 by July 1956, since which time it has maintained that approximate level). During the same period Leach Mfg.'s sheet metal business, ex- eluding its awning operation, increased virtually five-fold, from about $50,000 in the year before the move (1954) to $237,000 in the year after the move (1956). At the same time Leach Mfg.'s awning busi- ness was dropping from $50,000 to $43,000. Early in 1955 Local 48 protested to the Leach brothers, asserting that the transfer of sheet metal operations and machinery from Gadsden LOCAL NO. 4 8 289 Co. to Leach Mfg. was a. runaway-shop move. Holt Leach, speaking for Leach Mfg., replied that he would bargain with the Local about Leach Mfg.'s sheet metal work if the Local would let him complete the moving of the machinery and get on his feet at the Alabama City location. The Local agreed to this proposal. On June 1, 1955, the current contract was signed between Gadsden Co. and the Local. It was a 2-year union-shop agreement, annually renewable in the absence of notice, covering all employees engaged in work on No. 10 U. S. gauge or lighter sheet metal. The contract in- cluded provisions that Gadsden Co. would employ only journeymen craftsmen and registered apprentices on such work; that the Local would supply Gadsden Co.'s requirements on request ; and that union membership was required as a condition of employment after 31 days. The contract was on a printed form negotiated by the employers' as- sociation, and contained no reference to the Leach Mfg. operation. By October 17, 1956, more than a year after all the foregoing events, the Local had been unable to get the meeting with Leach Mfg. which had been promised in early 1955. The Local thereupon wrote a letter to Owen Leach claiming that "you and your firm" were violating the 1955 contract, and requesting a meeting on October 23. The requested meeting was held on October 23, 1956, attended not only by Owen Leach but also by Holt Leach. Local 48 claimed and the Leach brothers both denied that Leach Mfg. was bound by Gadsden Co.'s 1955 contract (specifically, the clause providing that sheet metal work should be done only by journeymen and apprentices). McDowell and Reid, as agents of Local 48, thereupon, on October 23, 1956, instructed Gadsden Co.'s employees to strike at the start of the following week. They also advised International Representative Heckel of these instructions. Heckel replied that they should keep in touch with the Local's attorney. On the following Monday, October 29, 1956, Gadsden Co.'s employees went on strike pursuant to these instructions. Local 48 also picketed the entrance to Leach Mfg., beginning on October 30. The picket sign read : "Leach Mfg. on strike. Let's organize." Only one Leach Mfg. employee thereafter I Gadsden Co. and Leach Mfg. had interchanged considerable personnel before the move to Alabama City. Thereafter, although operated for the most part with separate personnel, finances, and records, the two companies engaged in certain intercompany operations such as would not normally be carried on between unrelated business firms. For example, Leach Mfg.'s truckdriver and handyman on occasion ran errands for Gadsden Co. Leach Mfg. leased part of Gadsden Co.'s premises for a spray-paint department, and also, as stated above, leased much of Gadsden Co.'s heavy machinery useful in sheet metal fabrica- tion, but nothing was reduced to writing. Gadsden Co. sold several thousand dollars worth of raw materials to Leach Mfg. in instances where Leach Mfg. ran short. And Gadsden Co. once let Leach Mfg. do some spot welding in its shop. Moreover, there was a very substantial amount of subcontracting between the two companies, likewise on an oral basis rather than spelled out in written contracts, largely because Gadsden Co. had transferred the necessary machinery to Leach Mfg. Finally, Leach Mfg. "paid". for all this by a continuous open and running account with Gadsden Co., usually amounting to about $8,000, and made payments only if and when able. 476321-58-vol. 110 20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failed to report for work. It is clear that an object of Local 48 in both instances was to force Leach Mfg. to comply with the Gadsden Co. contract and assign its sheet metal work exclusively to employees in the sheet metal craft, rather than to the employees then performing the work. The latter employees were not represented by any union at the time, but Leach Mfg. thereafter signed a contract with another labor organization covering them. On February 19, 1957, a United States district court issued an in- junction under Section 10 (1) against Local 48 and its agents, Mc- Dowell and Reid, prohibiting the strike and picketing°on the ground that they apparently violated Section 8 (b) (4) (B) and (D) ; at the same time the court dismissed the case as against the International and its agent, Heckel, for lack of evidence. Pursuant to the injunction, Local 48 canceled the strike and the picketing. Contentions of the Parties The Charging Party, on behalf of both Gadsden Co. and Leach Mfg., contends that the dispute between Leach Mfg. and Local 48 over the assignment of sheet metal work is not covered by Gadsden Co.'s con- tract with Local 48, and that Local 48's claim is therefore without legal justification. Local 48 and its agents agree that their dispute is with Leach Mfg. over the assignment of sheet metal work (except on the awning opera- tion), but contend that in the circumstances the Gadsden Co. contract covers Leach Mfg. as well, and assigns the work exclusively to crafts- men and apprentices. The International and its agent contend, addi- tionally, that there is no reasonable cause to believe that they engaged in conduct violative of Section 8 (b) (4) (D), and that the Board is therefore without authority to make any determination against them. Applicability of the Statute The record before us establishes that there is reasonable cause to believe that Local 48 induced and encouraged employees of Gadsden Co. and Leach Mfg. to engage in a concerted refusal to perform serv- ices in order to force or require Leach Mfg. to assign sheet metal work to craftsmen and apprentices, although this work had been as- signed to other employees who were in many instances not craftsmen nor apprentices. The Board has held that such factual circumstances are sufficient to invoke the Board's jurisdiction to hear and determine the work-assignment dispute within the meaning of Section 10 (k) of the Act.' We find that this dispute comes within the meaning of Section 10 (k) of the Act, and is properly before us for determination. 2 Radio d Television Broadcast Engineers Union etc. (Uolunabia Broadcasting System, Inc.), 114 NLRB 1354; National Association of Broadcast Engineers and Technicians etc. ( National Broadcasting Company, inc .), 105 NL1IJ. 355. LOCAL NO. 48 291 Merits of the Dispute We regard the dispute as essentially a disagreement between Leach Mfg. and Local 48 over the question of whether or not Local 48's con- tract with Gadsden Co. covers Leach Mfg.'s new sheet metal work. This contract in substance provides that all sheet metal work shall be done by employees who are journeymen sheet metal workers or registered apprentices. The evidence, set forth above, satisfies us that Local 48's contract with the Leach brothers' sheet metal enterprise (Gadsden Co.) consti- tutes an assignment of sheet metal work, as Holt Leach in effect rec- .ognized early in 1955 when Local 48 protested the shift of such work from Gadsden Co. to another Leach enterprise, Leach Mfg. We are .of the opinion that the Leach brothers may not evade this work assign- ment by transferring the work from one enterprise to another. The facts clearly show that the Leach brothers are the real parties in interest of the two interrelated business organizations, one a corpora- tion and the other a partnership.' For many years prior to moving the partnership to Alabama City, the corporation was a general sheet metal operation, the partnership an awning operation. After the move the, general sheet metal work of the corporation dropped dras- tically and that of the partnership increased comparably; the neces- sary fabricating machinery was transferred from the corporation to the partnership; and while there were certain changes in products, they still represented sheet metal work which, had the Leach brothers not transferred the work to the partnership from the corporation, would clearly come within the purview of Local 48's contract. We do not. believe that the performance of such work by the partnership in :any manner removed it from the contract's assignment to craftsmen. Accordingly, we find that, at the time of Local 48's strike and picket- ing, Leach Mfg. was bound by the work-assignment clause of the Gads- den Co. contract. We further find that Leach Mfg. acted in deroga- tion of this contract by assigning the work to employees who were not craftsmen or apprentices. We also find, for the reasons set forth in the cases cited in footnote 2, supra, that the contract between Gadsden Co. and Local 48 is dispositive of the dispute. DETERMINATION OF DISPUTE On the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following Determination of Dispute pursuant to Section 10 (k) of the Act : All sheet metal work described in the contract between Gadsden Heating and Sheet Metal Company and Local No. 48, Sheet Metal Workers International Association, AFL-CIO, which is performed ' See J. G. Roy & Sons Co., 118 NLRB 286. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Leach Manufacturing Company, except on the awning operation, is covered by the said contract, and the Respondents were and are law- fully entitled to force or require Leach Manufacturing Company to. assign such sheet metal work in accordance with the contract. MEMBERS RGI)GERS AND BEAN took no part in the consideration of the above Decision and Determination of Dispute. Nathan Warren & Sons, Inc., Petitioner and Independent Produce, Workers Union, Inc., and Local Union No. 64, Bakery, Dairy,. Food, Beverage and Miscellaneous Drivers, Advance Salesmen,. Warehousemen and Helpers, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer - ica, AFL-CIO .2 Case No. 1-RM-?54. November 1, 1957 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herbert N. Watterson, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The parties stipulated at the hearing that the Teamsters is a labor organization within the meaning of the Act, but the Teamsters refused to enter into such a stipulation with regard to the Independ- ent. In accord with the hearing officer's request at the opening of the hearing, the Board takes official notice of the following proceed- ings and determinations by the Board and the Regional Director, which relate to the status of the Independent as well as to other issues here involved. On December 13, 1954, the Board certified the Teamsters as the exclusive representative of a unit of the Employer's employees.' Thereafter, the parties entered into a bargaining agreement which terminated on December 13, 1955, upon notice duly given by the Teamsters. The parties then engaged in contract negotiations until May 24, 1956, when the Employer advised the Teamsters that it no, 1 Herein referred to as the Independent. 2 Herein referred to as the Teamsters. 3 The motions of the Teamsters to dismiss the petition , which the hearing officer referred to the Board, are hereby denied for the reasons set forth below. 4 Case No. 1-RC-3305. This was a consent proceeding. The unit was comprised of drivers, warehousemen , and helpers , and combination food inspectors and warehousemen, but excluded guards, professional employees, office employees , salesmen , shippers, and supervisors. 119 NLRB No. 43.