Local Union 49, Sheet Metal Workers, Etc.

888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peerless storage area to the rock dump and new hopper, to the Ste. Genevieve Vertical Plant, and from the rock dump and hopper to the Peerless mine. The certification of the Glassworkers in Case No. 14-RC-2593 is hereby clarified to include the work involved in oper- ating and maintaining the conveyor system of the Mississippi Vertical Plant. [The Board dismissed the petitions in Cases Nos. 14-RM-192 and 14-RM-193.] Local Union 49, Sheet Metal Workers International Association, AFL-CIO, and Its Agent, E. D. Brooks and Driver-Miller Plumbing and Heating Corp. Case No. 33-CC-50. Septem- ber 8, 1959 DECISION AND ORDER On June 12, 1959, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel, the Charging Party and the Respondents filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, to the extent consistent herewith. 1. We agree with the Trial Examiner that the General Counsel failed to establish that the Respondents induced or encouraged the employees of Garcia to refuse to install the ductwork fabricated by Anderson. The General Counsel attempted, primarily, to establish unlawful inducement from the statements of Romero, a Garcia em- ployee, whom the General Counsel contends was a shop steward. Al- though Romero had informed Garcia, upon discovering Anderson's fabricated product at the jobsite, that he would not install, or do any work on, such product, for to do so would be in violation of Business Agent Brooks' orders, the record establishes that Romero was espous- 124 NLRB No. 112. LOCAL UNION 49, SHEET METAL WORKERS, ETC. 889 ing what he assumed to be the Union's position and that he had in fact received no orders from Brooks with respect to Anderson's product. Moreover, the General Counsel failed to establish that Romero was a shop steward or that he communicated to any other employees on the job any orders he might have received from Respondent with respect to the struck work. The General Counsel introduced testimony to the effect that Brooks, when asked by the Company for permission to in- stall the struck work, refused to give his consent, but it was not shown that any employee was present at this time or that such remarks by Brooks were conveyed or intended to be conveyed to Garcia's em- ployees. Inasmuch as the General Counsel has failed to prove the requisite inducement by a preponderance of the evidence, we shall dis- miss the complaint. 2. The Trial Examiner also found that, even assuming inducement, the object thereof was not to force Miller to cease doing business with Anderson because, at the time of the alleged refusal by Garcia's em- ployees to install Anderson's ductwork, there was no existing business relationship between Anderson and Miller. The Trial Examiner stated, in this connection, that the phrase "cease doing business with," as used in Section 8(b) (4) (A) of the Act, "necessarily implies an existing business relationship." In view of our finding that the Gen- eral Counsel failed to establish inducement, we find it unnecesary to adopt, or pass upon, the Trial Examiner's interpretation of this phrase in the context here presented. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented , was heard before the duly desig- nated Trial Examiner in Albuquerque, New Mexico, on March 17, 18, 1959, on complaint of the General Counsel of the National Labor Relations Board, herein- after called the Board , and the answer of the Respondents , Local Union 49, Sheet Metal Workers International Association , AFL-CIO, hereinafter called the Union, and its agent, E. D. Brooks. The issue litigated is whether the Respondents engaged in secondary boycott activities in violation of Section 8(b)(4)(A ) of the National Labor Relations Act, 61 Stat . 136, hereinafter called the Act. After the evidence was taken the parties waived oral arguments and subsequently filed briefs. Upon the entire record, and my observation of the witnesses , I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYERS New Mexico Sheet Metal Contractors ' Association, hereinafter called the Associa- tion, a corporate membership association with its principal office and place of business in Albuquerque , New Mexico , was organized for, and has engaged in, inter alia, collective bargaining with representatives of employees on behalf of member employers and other employers in the State of New Mexico. Lydick Roofing Company, a member of the Association, annually uses some $750,000 in value of materials in the pursuit of its business in New Mexico, some 90 percent of which is obtained from sources outside the State of New Mexico. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Driver-Miller Plumbing and Heating Corp ., hereinafter called Driver-Miller, is engaged in the plumbing and heating business in New Mexico . It is not a member of the Association. Miller Sheet Metal Company, hereinafter called Miller, is engaged in the business of selling, installing , and servicing sheet metal products , in New Mexico . It is not a member of the Association. Anderson Sheet Metal Company, hereinafter called Anderson, is engaged in the business of sheet metal construction , in New Mexico . Anderson is a member of the Association. Garcia Sheet Metal Company, hereinafter called Garcia, is engaged in New Mexico as a sheet metal contractor. It is not a member of the Association. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union is a labor organization within the meaning of the Act, and E. D. Brooks is its agent. III. PROCEDURAL On September 17, 1958, Driver-Miller filed with the Board the charge which initiated these proceedings . On September 15 or 16, 1958, Driver-Miller, by its attorney, Leonard Pickering, mailed by certified mail with return receipt requested, a copy of the charge to the Respondents . In October the envelope containing the charge was returned to Pickering by the U.S. Post Office. On September 17, 1958, an agent of the Board mailed to the Respondents, by registered mail, copies of the aforesaid charge. The Respondents contend that they were not properly served with a copy of the charge prior to the issuance of the complaint in this case , as required by the Board's Rules' and Regulations. The contention is without merit. Respondent Brooks, business agent of the Respondent Union, admittedly , as found by the Board in a prior proceeding involving these same respondents , has a policy of not picking up registered or certified mail although he has received from the Post Office Depart- ment the appropriate notices. Local Union 49, of the Sheet Metal Workers Associa- tion (New Mexico Sheet Metal Contractors Association, Inc.), et al., 122 NLRB 1192. ' Willful and negligent refusal or failure to receive or call for registered or certified mail, obviously can not serve to defeat the purposes of the Act. Accord- ingly, I hold that there was constructive service of the charge herein sufficient to satisfy the requirements of Section 10(b) of the Act. N.L.R.B. v. T. A. McGahey, Sr., et al., 233 F. 2d 406 (C.A 5).1 IV. THE UNFAIR LABOR PRACTICES A. Factual summation In the summer of 1958, Driver-Miller , as general contractor; Miller as subcon- tractor to Driver-Miller of sheet metal and ductwork ; and Anderson , as subcon- tractor to Miller, were engaged in the construction of a bowling alley called the Holiday Bowl. Anderson was a member of the Association , which, as found in section I, above, represented various employers for purposes of collective bargain- ing with the Union. On July 29, 1958 , the Union engaged in a strike against members of the Associa- tion including Anderson , and a consequence was that Anderson's employees par- ticipated in the strike thereby halting Anderson 's work on the Holiday Bowl. Ander- son continued personally to fabricate ductwork for the project in his own shop, but was prevented by the strike from installing it. The strike against Anderson ad- mittedly was primary. On about August 2 or 3, Miller and Anderson reached a verbal agreement terminating Anderson's contract with respect to the Holiday Bowl. It was agreed that Miller would pay Anderson for material fabricated in Anderson 's shop before and after the strike which he had been unable to install because of the strike, and for the labor involved in its fabrication . According to Anderson, at the time of the strike his work on the job was about half completed. On about August 4, Miller made an oral agreement with Garcia for the comple- tion of Anderson's work. Garcia was then working as a subcontractor on a nearby project known as the Lomas Bowl where Anderson, also, was a subcontractor. It 1 Driver-Miller's motion dated April 28, 1959 , to reopen the record of this proceeding for the purpose of receiving in evidence a certain document containing the substance of the charge herein, served on the Respondents on November 6, 1958, is denied as untimely submitted. The proffered document and motion is ordered placed in a rejected exhibit file. LOCAL UNION 49, SHEET METAL WORKERS, ETC. 891 appears that Anderson was instrumental in arranging for Garcia to complete the Holiday Bowl job, was an intermediary between Garcia and Miller, but the actual agreement ran between Garcia and Miller, and for payment for his services Garcia accordingly looked not to Anderson but to Miller. Garcia's employees were mem- bers of the Union but Garcia, not being a member of the Association, was unaffected by the strike. On August 5, Anderson delivered to the Holiday Bowl the balance of the duct- work for it which he had fabricated in his own shop. This completed his perform- ance of the oral agreement he had with Miller terminating his contract on the project. While there was no interference with the delivery by Anderson of the materials he had fabricated for the job, possibly because of the early hour of the delivery, Garcia refused to install any of this material. The result was that only materials fabricated by Garcia on the jobsite were used in the performance of Garcia's contract with Miller. Pursuant to his agreement with Anderson, Miller paid Anderson for the ductwork Anderson had fabricated for the job, although it was not used in the actual installation. B. The "cease doing business with" issue The allegation is that the Respondents induced Garcia's employees concertedly to refuse to work on or install Anderson's product and thereby engaged in a sec- ondary boycott in violation of Section 8(b) (4) (A) of the Act.2 Assuming, without finding, the alleged inducement, I am convinced that this is not a case of inducement with an object of causing Garcia and/or Miller to cease doing business with Anderson, for the simple reason that Miller and Anderson had terminated their contract on or before August 3, and the inducement, if any, occurred on August 5, after Anderson had completed the delivery of his product to the jobsite. Quoting from Driver-Miller's brief: "Anderson Sheet Metal had no further connection or interest in any manner, in the Holiday Bowl job, following the cancellation of his contract, which occurred at least by August 3." I am aware that secondary boycott does not have to be successful in order to be unlawful, but I think there would have to exist the possibility of the occurrence of the desired objective as a basis fora finding of unlawful inducement. "Cease doing business with" necessarily implies an existing business relationship and cannot, unless we do more violence to the English language than I am prepared for, refer to a potential, hypothetical, or future relationship. As for Garcia, if a contractual relationship existed between him and Anderson with respect to the Holiday Bowl, the Union had a right to strike him as an ally of Anderson, and in such a situation the inducement would have been lawful. If no contractual relationship existed between him and Anderson, there was no possibility of his ceasing to do 'business with Anderson, some- thing which he had never begun. If intent alone is sufficient to establish the unlawful objective-and there may be some who would argue that it is-it must be assumed that the Respondents knew that Anderson's agreement with Miller had been termi- nated for otherwise Garcia would not have been on the job doing the work which he, Anderson, had contracted to do, and it would be rather strained and unrealistic to hold that the Union intended to cause Miller to do something which, to its knowl- edge, Miller had already done. C. The product boycott issue Admittedly Garcia did refuse to work on or install Anderson's product and there- fore the issue is whether there was a product boycott within the meaning of 8(b) (4) (A). The question for which we must seek an answer, accordingly, is: Did the Respondents induce Garcia employees to engage in concerted action with an object of requiring Garcia to refuse to work on or install Anderson's product? The inducement, to have legal consequences, had to be brought to bear on Garcia, or Miller as the case may be, through Garcia's employees. Miller, so far as we know, had no employees on the job, or, if he did, there is no showing whatever of inducement with respect to them. I assume it is not questioned that Garcia was e (b) It shall be an unfair labor practice for a labor organization or its agents-(4) to engage in, or induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, trans- port, or .otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is : (A) forcing or requiring . . any em- ployer or other person to cease using , selling, handling, transporting, or otherwise dealing in the products of any other producer, processor , or manufacturer, or to cease doing business with any other person . . . :892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an employer, not Miller's employee. Anderson admittedly was an employer and -there would be no issue here if he were not, and Garcia stepped into Anderson's :shoes on the Holiday Bowl job. While the method of compensation may have differed there is no substantial distinction in their status as subcontractors to Miller. In the earliest cases involving picketing on common situs jobs, the Board rejected the argument that here there was found such a community of interests among general contractors and subcontractors that none of them were neutrals or innocent by- standers to a boycott directed against one of them. The Board reached this con- clusion on the separate legal entity theory, and here, regardless of the method of compensation, Garcia was a separate legal identity and, as such, an employer, having his own work force with- respect to whose hire, working conditions, or discharge Miller had no authority. There is nothing in 8(b)(4)(A) of the Act which says that the Respondents could not induce Garcia, an employer, not to work on or install Anderson's product provided the pressure of inducement was applied directly on Garcia and not indirectly through his employees. The General Counsel attempted to establish the unlawful inducement principally through statements attributed to Vincent C. Romero, a Garcia employee, whom the General Counsel contends was a shop steward on the Holiday Bowl job; and a telephone conversation with Respondent E. D. Brooks, participated in by Jerry Mechenbier, Driver-Miller's manager, in the presence of Garcia. When Romero discovered Anderson's fabricated product on the Holiday Bowl job, he informed Garcia that he would quit or -be fired before he would work on it or install it. Mechenbier testified that Romero told him that to install Anderson's product "was against Brooks' orders and that he couldn't jeopardize his card by going ahead and installing it." Mechenbier further testified with respect to Romero, "Well, he did let me know if I could get an o.k. from Brooks or from the Union to install this duct, they would be glad to install it. Until then they couldn't." Ander- son testified that with respect to the Lomas Bowl, on which Garcia also worked as a subcontractor, Romero told him that on instructions from Brooks, materials that were on the Lomas job before the strike was started could be installed, but no duct work not then on the job could be installed. Questioned, "Well, Mr. Anderson, did you have any conversation with Mr. Romero with respect to the installation of your materials on the Holiday Bowl job?" Anderson testified, "No, I did not." Mechenbier testified that after talking with Romero, he "picked up" Garcia and -they went to Miller's office where he got Brooks on the phone. In the conversation -which ensued, he, in effect, attempted to get Brooks' consent for Garcia to install Anderson's ductwork and Brooks refused to give his consent. According to Mechenbier, Brooks said "he didn't see how it could 'be worked out," and when Mechenbier asked "are we going to have to re-fabricate all this stuff," Brooks said, "if it was to go in that's the way it had to be." With respect to Romero, the General Counsel failed to establish that: (1) he was a shop steward or its equivalent; (2) he communicated to any other employee on the job his own, or the Respondents' opposition to the installation of the struck work; (3) Garcia at any time asked or required Romero, or others of his employees, to work on or install Anderson's product. Romero was a stout union man, a charter member of the Respondent Union, and vociferously articulate. He had at one time been a union steward but there is no evidence whatever that when employed by Garcia 'he was a union steward or officer of any sort, unless having a loud mouth constitutes •a man a steward or agent.3 The evidence is to the contrary. Mechenbier admitted that he appeared to be a rank- and-file employee. Anderson conceded that he was not, to Anderson's knowledge, a union steward on the Lomas job where he worked for Anderson immediately be- fore becoming employed by Garcia on the Holiday Bowl job. Romero denied that he was a union steward or officer. While he testified that he received fore- man's wages, he probably does not qualify as a foreman, though in my opinion he approaches that status more closely than that of a union officer or steward. Nor is there any evidence that Garcia employees designated him their spokesman, or that he spoke for them in a representative capacity. If he was a spokesman for them, or for the Respondents, it was in a self-appointed capacity , and I believe one cannot designate himself an agent with binding effect on a principal without the consent of 3 There was testimony to the effect that each employee on the job acted as a "steward" for purposes of policing the job in such matters as jurisdictional conflicts. Romero was in this respect on an equal footing with all other Garcia employees and neither their spokesman nor an officer or agent of the Respondents in matters with which we are here concerned. LOCAL UNION 49, SHEET METAL WORKERS, ETC. 893 that principal. At the time he made the statements attributed to him by Mechenbier, there was only one other Garcia employee on the job and there is no evidence of concerted activity between them, or between Romero and the several other em- ployees eventually engaged in this work, with respect to installation of Anderson's product, other than the fact that they did not install it. There is, in fact, no evidence of concerted activity by Garcia employees on the Holiday Bowl job outside of the bare fact that no Garcia employees did any work on Anderson's product. This might have significance of itself except for Garcia's unqualified testimony that he never asked them or instructed them to work on or to install Anderson's product and that it was not to his interest that they do so. We might infer from Mechenbier's testimony that Romero had communicated with Respondent Brooks with respect to the installation of the struck work and that Brooks had issued him instructions not to install it. There canbe no doubt, however, that Romero, absent instructions from Brooks with respect to the Holiday Bowl job, would have refused to work on goods which he knew, or surmised, were "struck." Having worked for Anderson on the Lomas Bowl, an adjacent job, he knew what the score was and he knew what the position of the Union was and would be with respect to Anderson's struck work. To reach inducement through Romero we would have to infer that the Respondents engaged in some act or word or token of inducement with respect to Romero and the Holiday Bowl job, and from this inference we would have to draw the further inference either that Romero, as the Respondent's spokesman, channeled this inducement to one or more other employees on the job, or that the Respondents engaged in some form of inducement with respect to one or more of the other employees. Outside of this, inducement to be found at all must be inferred from Respondents' known traditional policy of frowning on the installation by its members of materials fabricated by a struck employer during the period of the strike. I know of no case which holds that the mere existence of a tradition or policy suffices to constitute inducement. Above, I have treated statements attributed to Romero by Mechenbier as of pro- bative value though it may well be argued that as to the fact of inducement, Romero not having been established as an agent of the Respondents, the statements, if made, were hearsay. It should be noted further that Romero, while not specifically deny- ing the statements attributed to him, testified that as soon as he discovered the Anderson product on the job he informed Garcia that he would not work on it. This testimony is not contested. Romero further testified, "I don',t think Local 49 knew about it until I blew my top and I told Mr. Garcia I wouldn't put it up, I'd quit first." He further denied that he had received any "advance instructions" by the Union on what he should do in the event "such a situation arose." There can be little doubt that Romero being the stout union man he was, knew what he should do in the event "such a situation arose," and did it. Turning to Mechenbier's conversation with Brooks, it must be noted that no em- ployee was present, there is no evidence that Brooks' remarks were intended for re- laying to or were relayed to Garcia employees, and therefore there was in this con- versation no inducement of employees. Mechenbier asked for Brooks' consent to install Anderson's product and Brooks refused his consent. I know of nothing in the Act which requires a union to consent to the installation of struck work, or to act affirmatively in advising its members that it has no objection to their working on the struck work. Such an affirmative duty could arise only as a consequence of an unlawful inducement. The most that this conversation can stand for is a buttressing of an inference that Brooks had instructed Romero or other Garcia employees not to work on Anderson's product, an inference which in my opinion, as indicated above, needs a good deal of buttressing. How much, is further indicated by Garcia's own position in the matter, a somewhat novel one for an employer who allegedly is being thwarted and penalized by the induced concerted activities of his employees. It was Garcia's testimony that it was his understanding of his agreement to com- plete Anderson's work on the Holiday Bowl, that he would be paid on a time and material basis, and that he did not work on or install materials brought to the job by Anderson because "financially" it would be against his "better judgement." He. testified, "I felt that since I had this verbal contract under time and material basis, I felt that I was employed to fabricate and also install." He admitted that Romero told him that he, Romero, would not work on the Anderson product, but testified that no other employee so advised him and that none of his employees refused to perform any work or services required by him on the Holiday Bowl job. Mechenbier testified, in effect, that it was his understanding of Garcia' s agreement with Miller, that Garcia was to complete the installation of the ductwork on a time- labor basis, but Mechenbier admitted that he was not present during the consumma- 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of an agreement between Garcia and Miller. His further testimony that the fabricated materials delivered to the job by Anderson were sufficient to complete the required installations, was in contradiction to that of other witnesses more com- petent to testify in the matter. Obviously, therefore, it 'must have been contemplated that Garcia supply at least a part of the materials needed to complete the job. This contributes credence to his testimony on his understanding of his agreement with Miller. Miller testified that his agreement called for Garcia to do the work on a time-labor basis except for "a few incidentals that were not on the job-that were not even fabricated, that would have to be made up." "I don't know," Miller further testified, "whether we even decided whether I would make them up and take them over there or whether he would do it in his shop." While Miller can hardly have wanted to have Garcia duplicate material fabricated by Anderson and thus pay twice for the required materials, his testimony indicates that he was not unaware of the risk he was taking when he agreed to pay Anderson for ,the materials the latter had been unable to install because of the strike. Thus he testified with respect to his agreement with Anderson, "I was going to pay him for it [the fabricated material] and get it installed if I could." The only thing that emerges with complete lucidity about the verbal agreement by which Garcia was to work on the Holiday Bowl, is that there was no clear under- standing between the contracting parties other than that Garcia was to complete the job. Driver-Miller, the general contractor, admittedly was under pressure from the owners. On the morning of August 4, Mechenbier and Miller saw Garcia on the Lomas job and requested him to start work immediately on the Holiday Bowl. Mechenbier told Garcia, "Make it look conspicuous, because I've got those guys on my back and I want to get them off. . " Garcia immediately dispatched two of his employees to the job. This hurried procedure under pressure plus the fact that Anderson, Mechenbier, and Miller each had a hand in the "arrangements" by which Garcia took over the job, adequately explains why the terms of the oral agreement were not clear and definite. Admittedly, there arose a dispute between Garcia and Miller as to the terms of payment for Garcia's work on the job. Assuming, how- ever, that there was a clear understanding that Garcia was to install Anderson's fabri- cated material, it by no means necessarily follows that he refused to do so because of concerted activities of his employees induced by the Respondents. First, we have Garcia's own testimony that his refusal was based on financial ad- vantage. Second, we have his testimony that Romero and Romero alone among his employees, stated to him that he would not work on the Anderson product. Third, we have his testimony that he at no time instructed or asked his employees to work on the Anderson product. And, finally, Garcia, though an employer, was himself a charter member of the Union. Why, we must ask, would the Respondents resort to an unlawful inducement of Garcia's employees to bring about a result which they could achieve within the law, just as easily and with less fuss, by bringing their pressure to bear directly on Garcia? And even there, "pressure" is hardly the right word, since Garcia stood to gain, and did gain, financially in refusing to install Ander- son's materials. Surely, if inducement be found here, Garcia was the most happily induced and richly rewarded employer in all our annals of those caught in the toils of a secondary boycott. And while we may deplore the circumstances by which Miller, the innocent bystander, got hurt, Section 8(b) (4) (A) does not appear to me to be tailored to fit the situation presented by this case and we are not properly quali- fied as tailors for altering it to make it fit .4 CONCLUSIONS OF LAw 1. The operations of the Association and its constituent members, including Ander- son, constitute and affect trade, traffic, and commerce among the several States and foreign countries, within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act, and Respondent E. D. Brooks is its agent. 3. The Respondents have not engaged in the unfair labor practices alleged in the complaint herein to have been committed by them. [Recommendations omitted from publication.] 4 Having reached the conclusions above I find it unnecessary to review Respondents' contention that Garcia having contracted to do the work that Anderson was prevented from doing because of the strike , this case is controlled by the "ally" doctrine , first enun- elated . in Douds v. Metropolitan Federation of Architects ( Ebasco ), 75 F. Supp. 672 (D.C., N.Y.).