International Longshoremen's Association, Ind.

INTERNATIONAL LONGSHOREMEN'S 'ASSOCIATION, IND. 653 the said Supplemental Decision and Order with respect to Cases Nos. 36-CA-410 and 36-CA-648. On November 15, 1957, counsel for the General Counsel filed opposition thereto. Having duly considered the matter, the Board finds no merit in the contentions in the petition that the payment of back pay to Henry and Ermence (a) is precluded by the provisions of Section 302 (c) -(5) of the Act, and (b) would violate the terms of the trust agreements establishing the trust funds which the Petitioner administers. As to (a), the Board finds that Section 302 (c) (5), in providing for the establishment of health and welfare funds, by necessary im- plication authorizes the payment of proper administrative expenses from such funds, and that the payment of the back pay awarded here- in is such an expense. As to (b), the Board finds that the trust agree- ments here involved expressly authorize the payment out of the trust funds of the "required expenses of" administration," and that the back- pay award herein is such an expense. [The Board denied the petition.] International Longshoremen's Association, Ind.; Marine Termi- nal & Warehouse Local 976-4, International Longshoremen's Association, Ind.; Local 1277, International Longshoremen's Association, Ind.; and Local 1804, International Longshore- men's Association, Ind. and Abraham Kaplan ; Associated Painting Employers of Brooklyn, Inc.; and Local 645, Broth- erhood of Painters, Decorators & Paperhangers of America, AFL-CIO. Case No. 2-CD-125. December 5,1957 DECISION AND ORDER On May 23, 1957, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent Unions had engaged in and were engaging in certain unfair labor practices within the meaning of'Section 8 (b) (4) (D) of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel filed exceptions to the Intermediate Report and a brief, raising issue only as to the form of the remedial order. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in the case; and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modification. 119 NLRB No. 89. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing in the complaint stage of this case it was disclosed that Respondent Local 976-4, after the Board's adverse Determina- tion of Dispute, entered into a contract with Bush Terminal Com- pany containing a provision which achieved the Respondents' strike objective to require Bush Terminal to do its maintenance work wherever possible with its own employees who were ILA members, rather than having it done by other employers whose employees were not ILA members. The Respondents urged that the contract would permit them to engage in a strike to force Bush Terminal to honor this provision. The Trial Examiner, in response to this argu- ment, recommended modifying the conventional order by expressly excepting therefrom strike and related action permitted to Local 976-4 under Section 8 (b) (4) (D) in connection with its contract. The General Counsel has excepted to the inclusion of this provision.. We find merit in the General Counsel's exception. The contract. offered by the Respondents was..executed-after. the occurrence of the unfair labor practice here found to have been committed by the Re- spondents. As the Trial Examiner correctly found, the validity of the contract and its effect are not at issue in this proceeding. We therefore do not pass upon any issues which may arise therefrom.. Unlike the Trial Examiner, however, we find it unnecessary to treat. the Respondents' contention by making any reference to it as an ex- ception to our order. We shall; therefore, not include in the order- any reference to Local 976-4 and its asserted contract. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations. Board hereby orders that the Respondents, International Longshore- men's Association, Ind. ; Marine Terminal & Warehouse Local, 976-4,; International Longshoremen's Association, Ind. ; Local 1277, Inter-- national Longshoremen's Association, Ind. ; and Local 1804, Inter- national Longshoremen's Association, Ind., and their respective- officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from engaging in, or inducing or encouraging- the employees of Abraham Kaplan, or any other member of Asso- ciated Painting Employers of Brooklyn, Inc., or Bush Terminal' Company, or any other employer to engage in, a strike or a concerted refusal in the course of their employment to use, process, or otherwise handle or work on any goods, articles, or commodities, or to per- form any services, where an object thereof is to force or require. Abraham Kaplan, or any other member of Associated Painting Em- ployers of Brooklyn, Inc., or Bush Terminal Company, or any other- employer to assign maintenance work on Bush Terminal Company's. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, IND. 655 properties to members of the Respondents rather than to members of Local 645, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO, or to members of any other labor organiza- tion, except insofar as such action by any Respondents is permitted under Section 8 (b) (4) (D) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at each of their respective business offices copies of the notice attached hereto marked "Appendix A." I Copies of said notice, to be furnished by the Regional Director for the Second Region, shall be immediately signed, posted, and maintained for a period of sixty (60) consecutive clays thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the, Regional Director for the Second Region signed.. copies of the notice, to be furnished by the Regional Director, for like posting, the employers willing, on the bulletin boards of Bush Ter- minal Company, Abraham Kaplan, and Associated Painting Employ- ers of Brooklyn, Inc. (c) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. MEMBER JENKINS took no part in the consideration of the above Decision and Order. i In the event that this Order is enforced by a decree of it United States Court of Appeals. there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX A NOTICE TO ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN'S ASSOCIA- TION, IND., AND ITS LOCALS 976-4, 1277, AND 1804 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT engage in, induce, or encourage the employees of Abraham Kaplan, or of any other members of the Associated Painting Employers of Brooklyn, Inc., Bush Terminal Company, or any other employer to engage in a strike or a concerted refusal in the course of their employment to use, process, or otherwise handle or work on any goods, articles, or commodities, or to per- form any services where an object thereof is to force or require Abraham Kaplan,, any other member of the Associated Painting 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employers of Brooklyn, Inc., Bush Terminal Company, or any other employer, to assign maintenance work on Bush Terminal Company's properties to members of International Longshore- men's Association, Ind., or its Local 976-4, 1277, or 1804, rather than to members of Local 645, Brotherhood of Painters, Decora- tors & Paperhangers of America, AFL-CIO, or to members of any other labor organization, or to nonmembers of any labor organization; except insofar as any such action by any Respond- ents is permitted under Section 8 (b) (4) (D) of the Act. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, IND., Labor Organization. Dated---------------- B3'------------------------------------- (Representative ) (Title) LOCAL 976-4, ILA, IND., Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) LOCAL 1277, ILA, IND., Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) LOCAL 1804, ILA, IND., Labor Organization. Dated---- ------------ By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed by Abraham Kaplan and Associated Painting Employers of Brooklyn, Inc., herein respectively called Kaplan and the Association, and by Local 645, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO, herein called the Painters' Union, the General Counsel of the National Labor Re- lations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Second Region (New York, New York), issued his com- plaint, dated February 15, 1957, against International Longshoremen's Association, Ind., and its Locals 976-4, 1277, and 1804, herein collectively called the Respondents. With respect to the jurisdictional allegations, the complaint states that: The As- sociation is composed of various painting contractors, approximately 30 in number, all engaged in New York City in the business of providing and performing painting and related services; Kaplan is a member of the Association; Bush Terminal, Com- pany, herein called Bush, is a New York corporation engaged at its principal place of business along the waterfront in New York City, herein called the Terminal, in the maintenance and operation of piers and warehouses and in related services; during the past year the Association, Kaplan, and Bush performed services of certain dollar values, of which specified amounts were performed in interstate or foreign commerce; and the Association, Kaplan, and Bush each is, and has been at all times material herein, engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION) IND. 657 With respect to the labor organizations involved, the complaint alleges that the Respondents and the Painters' Union are, and have been at all times material herein, labor organizations within the meaning of Section 2 (5) of the Act. With respect to the unfair labor practices, the complaint alleges, in substance, that: On or about June 6, 1956, Kaplan was engaged with his employees in performing painting services on a pier operated by Bush; in the statutory language, Respondents have engaged in,.and induced the employees of Kaplan and other employers to en- gage in, strikes and concerted refusals to work, with an object of forcing or requiring Bush and Kaplan to assign particular work tasks to employees in Respondents rather than to employees in Painters' Union, of which Kaplan's employees were members, although none of the Respondents had been certified by the Board as the bargaining representative of employees performing such work; on November 17, 1956, the Board in a 10 (k) proceeding determined that the Respondents were not lawfully entitled to force or require Kaplan, Bush, or any other employer to assign maintenance work to members of Respondents rather than to members of the Painters' Union, or to members or nonmembers of any other labor organization; thereafter, the Respondents have failed and refused to comply with the Board's Decision and Determination of Dispute, and have failed and refused to notify the Regional Director for the Second Region in the manner directed by the Board in said determination, although afforded a fair opportunity to do so; and by the foregoing conduct, the Respondents have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (4) (D) and Section 2 (6) and (7) of the Act. By order dated March 22, 1957, the time for filing an answer to the complaint by each of the Respondents was extended to April 1, 1957. As no answers had been filed by any of the Respondents and no application for an extension of time beyond April 1, 1957, had been made by or on behalf of any of the Respondents, the General Counsel filed and duly served upon all parties a motion, dated April 23, 1957, and entitled "Motion for Summary Judgment and for Intermediate Report on Default." In this motion the General Counsel requested that (1) A finding and order be entered that Respondents be deemed to have admitted all the allegations of the complaint, pursuant to Section 102.20 of the Board's Rules and Regulations, Series 6, as amended; (2) without the necessity of a hearing, an Intermediate Report issue against Re- spondents, making findings of fact and conclusions of law in accordance with the allegations of the complaint and providing for an appropriate recommended order; and (3) said other, further, and different relief be granted as may be proper in the premises. By telegrams transmitted on April 26, 1957, I notified all parties that I would hear oral argument on the General Counsel's motion for summary judgment and for Intermediate Report on default at the opening of the hearing in this case, which was already scheduled for April 29. A hearing was held on April 29 and 30, at New York, New York. All parties were represented at the hearing, and afforded full opportunity to be heard, to intro' duce relevant evidence, and to file briefs. Although afforded full opportunity to do so, none of the parties called any witnesses to testify. Instead, counsel for the Re- spondents stipulated and agreed that the allegations in the complaint may be accepted as true and that the Trial Examiner may issue an Intermediate Report based on the allegations in the complaint. i Counsel for the Respondents further agreed to the entry by the Trial Examiner of a proposed order in the form submitted by the General Counsel as an exhibit, with one qualification concerning the cease-and-desist provision as to which the parties were not in agreement. All parties were given full opportunity to be heard in connection with this proposed qualification, as set forth in detail in the section of this report entitled "The Remedy." The parties then agreed to leave the proposed remedy in this respect to the discretion of the Trial Examiner, in the light of the record in this proceeding and the views and contentions of the parties reserving the right to file exceptions to the order recommended by the Trial Examiner. Upon the entire record in this case, and based upon the allegations in the complaint in accordance with the foregoing stipulation, I make the following: FINDINGS AND CONCLUSIONS 1. The Association, Kaplan, and Bush are engaged in commerce within the meaning of the Act. 2. Each of the Respondents and the Painters' Union are labor organizations within the meaning of the Act. 1 This agreement obviated any necessity for ruling on the General Counsel's motion. 476321--58-vol. 119--43 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. On or about June 6, 1956, Kaplan was engaged with his employees in performing painting services on a pier operated by Bush at its Terminal, pursuant to a contract by and between Kaplan and Bush. 4. Since on or about June 6, 1956, Respondents, by their officers, agents, and representatives, have engaged in, and by requests, appeals, orders, directions, instruc- tions, and other means have induced or encouraged the employees of Kaplan and the employees of other employers to engage in, strikes or concerted refusals in the course of their employment to perform painting services on the properties of Bush, with an object of forcing or requiring Bush and Kaplan to assign particular work tasks, including the painting of piers at the Bush Terminal, to employees in Re- spondents, rather than to employees in the Painters' Union, of which Kaplan's em- ployees were members, or to employees in another trade, craft, or class, notwith- standing the fact that none of said Respondents has been certified by the Board as the bargaining representative of employees performing such work. 5. On November 17, 1956, in proceedings held pursuant to Section 10 (k) of the Act, after a hearing upon the matters alleged in the complaint, in which Respond- ents participated, the Board issued its Decision and Determination of Dispute, re- ported at 116 NLRB 1533, wherein, inter alia, the Board made the following determi- nation (p. 1537), of all of which Respondents had due notice: 1. The Respondents, International Longshoremen's Association, Ind., its Lo- cals 976-4, 1277, and 1804, and their agents, are not and have not been law- fully entitled to force or require Abraham Kaplan, any other member of As- sociated Painting Employers of Brooklyn, Inc., Bush Terminal Company, or any other employer, to assign maintenance work on Bush Terminal Company's properties to members of the Respondents, rather than to members of Local 645, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO, or to members of any other labor organization, or to nonmembers of any labor organization. 2. The Respondents shall, within ten (10) days from the date of this De- cision and Determination, notify the Regional Director for the Second Region, in writing, whether or not they accept the Board's determination of this dis- pute and whether or not they will refrain from forcing or requiring Abraham Kaplan, or Bush Terminal Company, by means proscribed in Section 8 (b) (4) (D) of the Act, to assign the work in dispute to members of the Respondents rather than to members of the Painters' Union. 6. The Respondents have failed and refused to comply with the aforesaid De- cision and Determination of Dispute and have failed and refused to notify the Re- gional Director for the Second Region of the matters, and in the manner directed, in said determination, although afforded a reasonable opportunity to do so. 7. By the foregoing conduct the Respondents, and each of them, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. THE REMEDY The Respondents have agreed that the Trial Examiner may recommend an order in the form submitted by the General Counsel as Exhibit No. 2, containing the usual cease-and-desist and posting provisions based on findings of a violation of Section 8 (b) (4) (D) of the Act. Counsel for the Respondents, however, took the posi- tion at the hearing that a phrase to the following effect should be added to the cease- and-desist provision of the recommended order: "except to the extent that such con- duct by Local 976-4 may be permitted by virtue of its existing contract with Bush Terminal Company, dated February 11, 1957." In support of his position, counsel for the Respondents introduced into evidence a copy of the aforementioned contract between Respondent Local 976-4 and Bush Terminal Company and contended that section 2 thereof,2 which was negotiated about March 15, 1957, would make it law- ful for Local 976-4 to engage in the conduct proscribed by Section 8 (b) (4) (D) with respect to Bush and its employees in the event that Bush violated this provision of the contract. Respondents' counsel argues that he is merely seeking by this ad- ditional phrase to preserve whatever lawful rights Local 976-4 may have to engage 1In this section, "the Employer agrees to employ the members of the bargaining unit to perform all the work of repairs, painting, renovations, and alterations in and about the premises of the employer, and the members of the bargaining unit shall have the exclusive right to perform any and all such work" with certain specified exceptions. THE WOLFE METAL PRODUCTS CORPORATION 659 in such conduct in connection with this contract, and contends that the absence of such a phrase may raise the implication that its existing contract would be no de- fense to such conduct. Counsel for the Charging Parties object to the addition of such a phrase to the cease-and-desist provision of any recommended order. They contend that this con- tract would not be a valid defense to any conduct by Local 976-4 proscribed by Section 8 (b) (4) (D) even with respect to Bush and its employees, and that this contract is no more valid than the one mentioned by Judge Medina in his decision 3 granting the General Counsel's petition for an injunction in this dispute. They fur- ther argue that the addition of such a phrase would raise the implication that this contract permits Local 976-4 to engage in such conduct. The General Counsel also contends that this contract would not render lawful any conduct proscribed by Section 8 (b) (4) (D), engaged in by Respondent Local 976-4 with respect to Bush and its employees. However, he takes the position that the validity of this contract as a defense to such conduct is not being litigated or de- termined in this proceeding and that he does not wish at this time to foreclose Local 976-4 from asserting in the future whatever lawful rights it may have in connection with this contract to engage in conduct deemed permissible under the Act. He therefore has no objection to the addition of some language in the recommended order which would preserve whatever lawful rights Local 976-4 may have in con- nection with this contract, without at this time determining what those rights, if any, may be. I agree with the General Counsel that on the record before me no definitive de- termination can be, nor need be, made of the validity of this contract, the nature and scope of the work tasks covered by it, nor of the type of conduct in which Local 976-4 may lawfully engage under the Act in connection with this contract. Ac- cordingly, I make no such determinations with respect to the contract in question. It is true, however, as the Board has held,4 that under certain circumstances a union may strike for the assignment of work tasks covered by contract in order to protect its contract, without thereby violating Section 8 (b) (4) (D) of the Act. As the sole purpose of a cease-and-desist order is to enjoin conduct violative of Section 8 (b) (4) (D) of the Act, the Board has refused to delete from the cease-and-desist provision of a Trial Examiner's recommended order the language "except insofar as any such action is permitted under Section 8 (b) (4) (D) of the Act." 5 Under all the cir- cumstances, I believe that it will effectuate the policies of the Act to assure all parties that the cease-and-desist provision is without prejudice to the exercise by Re- spondent Local 976-4 of whatever lawful rights it may have under the Act in con- nection with its existing contract with Bush Terminal Company. For this reason, I will add the following phrase to the cease-and-desist provision of my recommended order: "except insofar as any such action by Local 976-4 is permitted under Section 8 (b) (4) (D) of the Act in connection with its contract with Bush Terminal Com- pany, dated February 11, 1957." [Recommendations omitted from publication.] 8 242 F. 2d 808 (C. A. 2). * Radio & Television Broadcast Engineers Union, etc., 114 NLRB 1354; National Associa- tion of Broadcast Engineers, etc., 105 NLRB 355; 21st Annual Report of the National Labor Relations Board, p. 21. s United Association of Journeymen, etc. (Frank W. Hake), 112 NLRB 1097, 1102. The Wolfe Metal Products Corporation and International As- sociation of Machinists, District Lodge 116, Local Lodge 1756, AFL-CIO, Petitioner. Case No. 6-RC-1969. December 5, 1957 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Relations Act, a hearing and a reopened hearing 1 were held before • 'By Board order of September 12, 1957, the proceeding was remanded to the Regional Director to obtain further evidence on points deemed material by the Board. 119 NLRB No. 95.