Local 36, Int'l Chemical Workers Union, AFL-CIO

LOCAL 36 , INT'L CHEMICAL WORKERS UNION, AFL-CIO 905 WE WILL NOT discriminatorily discharge any employee pur- suant to such unlawful rule. WE WILL NOT, in any like or related manner, interfere with,, restrain, or coerce our employees in the exercise of rights guar- anteed by Section 7 of the Act. WE WILL revoke and rescind the rule forbidding solicitation and other union activities on company premises insofar as it prohibits employees from engaging in solicitation and other union activities on company premises during their nonworking time. WE WILL offer James Jackson immediate reinstatement to his, former or substantially equivalent employment, without preju- dice to his seniority or other rights and privileges previously enjoyed, and will make him whole for any loss of earnings suf- fered by reason of the discrimination against him. NATIONAL STEEL & SHIPBUILDING CORPORATION, Employer. 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. Local No. 36, International Chemical Workers Union , AFL-CIO and Virginia-Carolina Chemical Corporation. Case No. 12-CC- 54. March 2, 1960 DECISION AND ORDER On November 10, 1959, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Charging Company filed a brief in support of the Intermediate Report. 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 I The Trial Examiner inadvertently stated that the Respondent received its copies of the Company's rules pertaining to the use of gate 3 on July 15. The correct date was June 15. The error does not, however, affect the Trial Examiner 's ultimate conclusions. 126 NLRB No. 117. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed . The Board has considered the Inter- mediate Report, the exceptions and briefs , and the entire record in the case, and hereby adopts the findings , conclusions, and recommenda- tions of the Trial Examiner, with the additions and modifications in- dicated below. 1. We agree with the Trial Examiner that there are inconsistencies between the Ryan Construction Corporation case 2 and the General Electric case.3 We therefore overrule the Ryan case to the extent that it is inconsistent with the General Electric case. 2. The Trial Examiner rejected the Respondent 's contention that its activities fall within the ambit of the second proviso to Section 8(e) of the Act.4 We agree. It is clear from the language of the statute and the legislative history that this subsection is applicable only to the clothing and apparel industry and therefore, regardless of other con- siderations, affords no protection for the conduct of the Respondent. ORDER - Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Local No. 36, International Chemical Workers Union, AFL-CIO, its officers, rep- resentatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging the employees of Wellman-Lord Engineering, Inc., or of any other employer except Virginia-Carolina Chemical Corporation, to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Wellman-Lord Engineering, Inc., or any other employer or person, to cease doing business with Virginia-Carolina Chemical Corporation. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting halls in Nichols, Florida, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by the Respondent's represen- tative, be posted by the Respondent immediately upon receipt thereof, 3 85 NLRB 417. 3 Local 761, International Union of Electrical, Radio, and Machine Workers, AFL- CIO (General Electric Company, etc.), 123 NLRB 1547. 4 This subsection was added to Section 8 by the Labor-Management Reporting and Disclosure Act of 1959. 6 In the event that this Order is enforced by a decree of a 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." LOCAL 36, INT'L CHEMICAL WORKERS UNION , AFL-CIO 907 and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Furnish to the said Regional Director signed copies of the aforementioned notice for posting by Virginia-Carolina Chemical Corporation and Wellman-Lord Engineering, Inc., they being willing, at places where they customarily post notices to their employees. (c) Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL No. 36, INTERNATIONAL CHEMICAL WORKERS UNION7 AFL-CIO, AND TO ALL EMPLOYEES OF WELLMAN- LORD ENGINEERING, INC. 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, we hereby notify you that : WE WILL NOT engage in, or induce or encourage the employees of Wellman-Lord Engineering, Inc., or of any other employer except Virginia-Carolina Chemical Corporation to engage in, a strike or a concerted refusal in the course of their employment, to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to per- form any services, where an object thereof is to force or require Wellman-Lord Engineering, In., or any other employer or person to cease doing business with Virginia-Carolina Chemical Corporation. LOCAL No. 36, INTERNATIONAL CHEMICAL WORKERS UNION, AFL-CIO, 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 STATEMENT OF THE CASE This proceeding, with all parties represented , was heard on September 16, 1959, at Tampa, Florida, before the duly designated Trial Examiner on complaint (dated July 16, 1959) of the General Counsel and answer of Local 36, International Chemical Workers, AFL-CIO, Respondent herein . The issue is whether Respondent violated Section 8(b) (4) (A) of the Act. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record and my observation of the witnesses, and upon consid- eration of the briefs filed herein, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY Virginia-Carolina Chemical Corporation, herein called V-C or the Company, is engaged at Nichols, Florida, in the mining of phosphate and in the production and sale of phosphate products. During the past year it has sold and made direct inter- state shipments of phosphate products valued in excess of $50,000. I find that V-C is engaged in commerce within Section 2(6) of the Act. II. THE RESPONDENT UNION Local No. 36, International Chemical Workers Union, AFL-CIO, herein called Local 36, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This proceeding involves V-C's concentrated superphosphate (or CSP) plant employing approximately 150 employees who are collectively represented by Respondent Local 36. V-C and Local 36 began negotiating for a new contract in the spring of 1959. Plant operations closed down on or about May 22 as a result of a strike called by Local 36 in support of its bargaining demands, and Local 36 implemented this action by picketing V-C's installations beginning on May 25, 1959. (All events hereinafter recounted occurred in 1959 unless otherwise stated.) The employees remained out on strike until August 3. Wellman-Lord Engineering, Inc., herein called Wellman, is a construction con- cern. V--C engaged Wellman in April to install a fume removal and scrubber sys- tem in the CSP plant, and a written instrument to such effect was executed on or about June 1. During this same period V-C also authorized Wellman to do certain preliminary engineering work in connection with a multimillion dollar expansion of the CSP plant. Early in 1959, during their discussions concerning the anticipated construction work mentioned above, V-C and Wellman discussed establishing a separate plant entrance to be used solely by Wellman's and other construction contractors' employees. The fence was for plant protection purposes, and the stated reason for the separate contractors' entrance was to immunize V-C and its contractors from each other's labor disputes. In early June, V-C arranged with Allied Fence Com- pany to construct an industrial fence to enclose the plant area with four entrance gates to the plant property. Allied began its contract on or about June 10 and completed the job by June 24. On June 12, V-C promulgated the following rules respecting the four afore- mentioned gates: CSP Plant-Gate Rules Gate No. 1: V-C Employees and Visitors No. 1 gate is for the exclusive use of V-C employees, V-C business visitors, and V-C suppliers, and entrance at any other gate by any of such persons is forbidden. Gate No. 2: Wet Process Access No. 2 gate is an equipment access entrance to the Wet Process Building. Authorization must be obtained to use this gate. Authorization will be granted only to convey equipment into and out of the Wet Process Building. Gate No. 3: Independent Contractors No. 3 gate is the gate to be used by Wellman-Lord Engineering, Inc. employ- ees on reporting to or leaving work. A guard will be at the gate and proper identification must be shown upon entry. This gate will also be used by the employees of any other independent contractors doing work within the fenced- in area of the plant. Gate No. 3 is for the exclusive use of the employees, business visitors, and suppliers of Wellman-Lord Engineering, Inc. or other independent contractors doing work in the plant, and entry at any other gate is forbidden to the employees, business visitors, and suppliers of Wellman- Lord Engineering, Inc. or any other independent contractors doing work in the plant. LOCAL 36, INT'L CHEMICAL WORKERS UNION, AFL-CIO 909 Gate No. 4: Substation Access No. 4 gate is restricted to the use of authorized personnel going to and from the substation to and from the C.S.P. plant. Violation of this rule will be grounds for discharge. W. C. THOMAS, Manager. On June 12, V-C mailed copies of the rules to Wellman, to Local 36, and to all plant employees. The rules sent to Local 36 were accompanied by an explanatory letter; Local 36 received its copy of the rules on July 15. V-C also placed signs at each gate clearly identifying the gate number and the specific purpose of each gate, as set forth in the rules, and it also maintained watchmen in the vicinity of the gates with instructions to carry out the rules. So far as appears here, Allied Fence and Wellman employees used gate 3, exclusively, after its construction on or about June 15, and no V-C employees have used that entranceway since that time. Gate 3, the contractors' gate, is located several hundred feet off a State highway, and the only approach to this gate is by an accessway located entirely on V-C's property. This accessway turns directly off the highway immediately onto V-C's property and was constructed on or about June 10. In addition to posting the aforementioned identifying signs at each gate, V-C also posted and maintained a sign on its property at the intersection of the highway and the access road, which sign reads, "Wellman-Lord Engineering, Inc., Employees and Visitors." Late on June 11, upon completion of the mentioned accessway, Local 36 estab- lished a new picket station at the mentioned intersection of the highway and the access road to gate 3. Picketing continued at this location until abandoned in compliance with a temporary restraining order issued by a Federal District Court on July 10, 1959.1 The picket signs bore legends stating, "I.C.W.U. Local 36 on strike," and some contained the additional words, "Please honor." 2 The pickets were instructed to advise all individuals approaching the turnoff to the accessway that Local 36 was striking V-C and that Local 36 was requesting all such individuals to honor their picket line. Local 36 President Alvin Hill testified that the purpose of this particular picketing was to advertise Local 36's dispute with V-C and to request that the picket line not be crossed. Early in June, before gate 3 was hung and before Local 36 received copies of the aforementioned rules, President James L. Wellman of Wellman-Lord discussed the question of Local 36's overall picketing activities at a meeting with representatives of Local 36, including International Vice President J. Harley Thomas 3 of the International Chemical Workers, and with members of the local Building Trades Council. Wellman advised Local 36 at this meeting of V-C's plan to establish a separate contractors' gate so that Wellman's and other contractors' employees might proceed with their own mentioned work uninterrupted by picketing activities. Wellman and the Building Trades Council, in effect, requested Local 36 not to picket this separate gate upon its construction and Wellman further advised Local 36 at the time that no V-C employees would be permitted to use that gate. Thomas said he would present the matter to Local 36's membership and advise Wellman further. Meanwhile, as stated above, picketing began at the accessway to gate 3 following which V-C sent Local 36 a copy of the rules. Another meeting concerning this picketing was held between Wellman and Local 36 representatives, including Local 36 President Hill and International Union Representative Doherty. Wellman again advised Local 36 that only his and other contractors', and no V-C, employees, would use gate 3. Either Doherty or Hill asked to see a copy of Wellman's construction contract. Wellman refused, explaining at the time that he considered the disclosure of such contract to be V-C's prerogative and not his; however, he "assured" Local 36, in effect, that his firm was not going to perform any work routinely or normally handled by the striking employees. On or about June 25, Wellman Construction Manager Phillip Pedone approached the accessway to gate 3 to begin work on the project. Pedone was in a truck clearly marked with Wellman's business name, and following immediately behind him in a private vehicle were two Wellman laborers. Pickets held up the aforedescribed picket signs at the approaching vehicles. Pedone and the two laborers got out of their vehicles and spoke to the pickets. Pedone advised the pickets that he and the two other men were Wellman employees and were there for construction work only. 1 Boire v. Local 36, International Chemical Workers Union, AFL -CIO, Civil No. 3670- Cic T (S D Fla 1 2 After June 28, the signs further contained the words , "V-C only " 9 Thomas has been chairman of Local 36's negotiating team in the current negotiations with V-C 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The pickets, in accordance with their aforementioned instructions, requested the men to honor the picket line. The two laborers, both of whom were Building Trades union members, refused to proceed further and the three men thereupon left without entering the premises 4 No work was done on the Wellman project until removal of the pickets at the accessway to gate 3 on July 10, as related above. V-C and Wellman have since executed another contract for the multimillion-dollar expansion program mentioned earlier herein. On July 30 Wellman further advised its employees concerning the use of gate 3 and instructed them, among other things, that they were not to perform work "which normally and routinely would be performed by the striking chemical workers if they were not on strike. Any deviation from this policy will subject the violator to company discipline." Further Findings, Contentions, and Conclusions Relying principally on the recent General Electric case,5 the General Counsel and V-C contend that Local 36 has violated Section 8(a) (4) (A) of the Act by picketing at an entranceway which, with the knowledge of Local 36, had been set aside for the exclusive use of Wellman's and other independent contractors' employees. Local 36 asserts, on the other hand, that such picketing is lawful at the premises of a primary employer (V-C), and it cites the Ryan case 6 for supporting authority. Despite claimed differences asserted here between these respectively cited cases and despite the fact that the Board's own decision in General Electric does not even mention the Ryan and related decisional authority discussed by Trial Examiner Hunt in his Intermediate Report in the General Electric case, and notwithstanding that the Board, to my knowledge, has not expressly overruled Ryan, I am unable to Teconcile the underlying premises of the Ryan and General Electric decisions. The General Electric decision, as the Board's later pronouncement, must therefore govern this proceeding. I accordingly also reject Local 36's contention that a failure to follow Ryan is "inconsistent with the principle of stare decisis." Local 36 would distinguish the General Electric case from the instant situation in that, unlike the present situation, the separate contractors' gate in the General Electric case was established long before the labor dispute arose and picketing activities began. To extend the General Electric case to the present situation, con- tends Local 36, would in effect permit a primacy employer by his "self-serving act" to convert otherwise lawful picketing into unlawful secondary activity. The theory of the General Electric case seems to be, however, that a primary employer may withdraw a portion of his own premises from the primary situs category and thus delimit the geographical scope of otherwise proper picketing, and I fail to see that the timing of such withdrawal, be it before or after picketing, is material. Local 36's basic disagreement would appear to be with the General Electric case itself.? Local 36 further contends that Section 8(b) (4) (A) is inapplicable here; it asserts in this connection that Wellman was an "ally" of V-C in that Wellman was perform- ing work normally handled by striking employees. See Douds v. Metropolitan Federation of Architects, et al. (Project Engineering Company), 75 F. Supp. 672 (D.C., N.Y.); N.L.R.B. v. Business Machine and Office Appliance Mechanics Board, et al. (Royal Typewriter Co.), 228 F. 2d 553, 557-559 (CA 2), cert. denied 351 U.S. 962. Cf. H. Rept. No. 1147, 86th Cong., 1st secs., p. 38 (1959). The principal evidentiary items in support of Local 36's struck-work contention are the following: Local 36's representatives had requested Wellman to show them a copy of the Wellman construction contract while they were discussing picketing of gate 3, and Wellman refused with the explanation set forth above; Wellman did undertake in this contract not only to install a fume removal and scrubbing system, but also to do "any other work as may be directed by [V-C]"; and Vice President Thomas of the International Chemical Workers, in testifying with reference to Wellman's work diary on the project for the period between July 20 and September 4I do not find, although it is immaterial here, that the pickets physically barred en- trance to the accessway All picketing was peaceful and lawful, except as found herein. 5 Local 761, International Union of Electrical, Radio and Machine Workers, AFL- CIO (General Electric Coinpany, etc ), 123 NLRB 1547 United Electrical, Radio and Machine Workers of America, et at (Ryan Construc- tion Coiporation), 85 NLRB 417. ° I find no merit in Local 36's further claim that the rules promulgated by V-C and the sign at the accessway to gate 3 are ambiguous and unintelligible LOCAL 36, INT'L CHEMICAL WORKERS UNION, AFL-CIO 911 9, testified that many items in such diary constituted work normally performed by striking maintenance workers. The record shows that over a long period antedating the events under considera- tion here, V-C had periodically contracted out various maintenance and renovation work .to Wellman and to other construction concerns. Such contract work did not operate to withdraw work or employment from V-C's own maintenance staff, in- stead it involved functions beyond or in addition to those normally performed by V-C's employees. It maybe true that V-C's regular maintenance crew could do and perhaps even did some work similar or even identical to some of the items listed on the aforementioned work diary. I am satisified, however, that such work as was performed by Wellman related to periodic renovation and the installation of a fume removal and scrubbing system or was part of the major expansion pro- gram; the contract for this expansion project was given to Wellman, and Wellman had begun preliminary groundwork on such project before August 3. August 3 is significant because, on that date, the striking employees returned to work. V-C's employees have been doing their normal routine work since that date, and Wellman's employees have continued their own contract work, as set forth in the aforementioned diary. Local 36 has not protested or even intimated to V-C since August 3 that Wellman employees have been doing the normal routine work of the returned strikers, and the record further shows that, even with Wellman's employees on the premises, V-C's maintenance crew is larger now than it was when the strike began. I am not satisfied, upon a consideration of all relevant evidence, that "[Wellman's or any like contractor's] employees did work, which, but for,the strike of [V-C's] employees, would have been done by [employees of V-C] " Douds v. Metropolitan Federation of Aicbitects, et al. (Project Engineering Co.), supra., at p. 677; N.L.R.B. v. Business Machine and Office Appliance Mechanics Board, et al. (Royal Type- writer Co.), 228 F. 2d at p 559. 1 accordingly reject Local 36's "struck-work" or "ally" contention. Referring to the second proviso in Section 8(e) of the Act, as recently amended, Local 36 contends, finally, that this amendment expressly provides that "the second- ary boycott provisions of Section 8(b) (4) (A) of the old Act do not apply to `persons in the relation of . . . contractor, or subcontractor working on the . premises of the . . . manufacturer.' " The particular sentence does not close with the word "manufacturer," however, but continues with the phrase "or performing parts of an integrated process of production in the apparel and clothing industry." [Emphasis added.] This second proviso to newly enacted Section 8(e) is inapplicable here, foi, apart from all other considerations, the "limited exemption" therein provided is granted only "in the apparel and clothing industry, ibut in no other industry re- gardless of whether similar integrated processes of production may exist between jobbers, manufacturers, contractors, and subcontractors." H. Rept. No. 1147, 86th Cong., 1st sess., p. 40 (1959). I accordingly conclude under the General Electric case that Local 36 has violated Section 8(b) (4) (A) of the Act by inducing and encouraging employees of Wellman (an independent contractor and secondary employer) to engage in a concerted re- fusal to work with an object of forcing Wellman to cease doing business with V-C (the primary employer). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Local 36 set forth in section III, above, occurring in connection with V-C's operations described in section I, above, have a close, in- timate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY I shall recommend that Local No. 36 cease and desist from the unfair labor prac- tices found and that it take certain affirmative action deemed necessary to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Local No. 36 is a labor organization within Section 2(5) of the Act. 2. V-C is engaged in commerce within Section 2(6) of the Act 3. Local No. 36 has violated Section 8 (b) (4) (A) of the Act, which are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.]