United Association of Journeymen, Etc., Local 469

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, asserting that the Petitioner's request for extension was untimely made under Section 102.69 of the Board's Rules and Regulations, and submitted that the exceptions "should be striken from the file or dismissed because filed belatedly herein and that, under the provisions of Section 102.69 (c), the Board should proceed with the disposition of this case as though no exceptions were filed to the Report of the Regional Director." On August 15, 1960, the Intervenor filed a sim- ilar motion. As service of the Regional Director's report was made by mail, 3 additional days' time is allowed under Section 102.114 of the Board's Rules for filing exceptions or requesting an extension of time for filing exceptions. Thus, in this case, the Petitioner's request was timely for it was received on July 28 and the original due date for filing excep- tions was August 1. Accordingly : IT IS HEREBY ORDERED that the motions of the Employer and the Intervenor be, and they hereby are denied, pursuant to Sections 102.69 and 102.114 of the Board's Rules and Regulations, as lacking in merit. See Capital Transit Company, 100 NLRB 1173. MEMBER FANNING took no part in the consideration of the above Order Denying Motions. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local No. 469, AFL-CIO; United Brotherhood of Carpenters and Joiners of America, Local No. 1100, AFL- CIO; and International Hodcarriers, Building and Common Laborers Union of America, Local No. 556, AFL-CIO [W. D. Don Thomas Construction Company] and Howard C. John- son. Case No. 21-CC-343. September 12, 1960 DECISION AND ORDER On February 29, 1960, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record 129 NLRB No. 3. UNITED ASSOCIATION OF JOURNEYMEN, ETC., LOCAL 469 37 in the case, and hereby adopts the findings and conclusions of the Trial Examiner, modifies his recommendations,' and adopts them as modified. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the Act, the National Labor Relations Board hereby orders that the Respondents, United Association of Journeymen and Appren- tices of the Plumbing and Pipefitting Industry of the United States and Canada, Local No. 469, AFL-CIO; United Brotherhood of Carpenters and Joiners of America, Local No. 1100, AFL-CIO; and International Hodcarriers, Building and Common Laborers Union of America, Local No. 556, AFL-CIO, their officers, agents, representa- tives, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging the employees of W. D. Don Thomas Construction Company to engage in, a strike or 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 W. D. Don Thomas Construction Company to cease doing business with Howard C. Johnson. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at their respective business offices copies of the appro- priate notice attached as an appendix to the Intermediate Report.' Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall be signed by the respective Respondent and posted in conspicuous places (including all places where notices ' The Respondents challenged the Trial Examiner's recommendation that they cease and desist from encouraging strike action by employees of Thomas "or of any other employer" where an object is forcing Thomas "or any other employer or person" to cease doing business with Johnson . The evidence shows and the Trial Examiner found that the Respondents' only violation was limited to the employees of Thomas, with an object likewise limited to forcing Thomas to cease doing business with Johnson. In view of the Supreme Court 's opinion in Communications Workers of America, AFL-CIO, et al. v. N L.R.B. (Ohio Consolidated Tele. Co.), 362 U.S. 479, we shall therefore delete the quoted portions of the recommendation and issue a narrow order , limited to the violation and object found. Member Rodgers, concurring in the issuance of an order against the Respondents, is of the opinion that the Communications Workers case is distinguishable and does not re- quire that the recommended order be narrowed. That case is not a secondary boycott case, but is an 8(b )( 1)(A) case involving unlawful coercion in the course of a primary strike. In that case the evidence showed no threat or danger of unlawful action against any other employer. Here, however , the evidence shows a real danger of unlawful action with respect to the employees of any employer doing business with Johnson, even though the Respondents' unlawful actions so far have been limited to Thomas' employees. 2 The notice shall be amended by deleting the words "or the employees of any other employer" and the words "or any other employer or person," and by substituting for the words "The Recommendations of a Trial Examiner " the words "A Decision and Order." 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." 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to members are customarily posted) immediately upon receipt thereof, and maintained for at least 60 consecutive days thereafter. Reason- able steps shall be taken by the respective Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Twenty-first Region signed copies of the appropriate notice for posting by W. D. Don Thomas Construction Company, if it is willing, at places where it customarily posts notices to its employees. (c) Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard before Trial Examiner William E. Spencer of the National Labor Relations Board, herein the Board, in Phoenix, Arizona, January 7, 8, 1960, on the complaint of the General Counsel of the Board and answer of United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local No. 469, AFL-CIO; United Brotherhood of Carpenters and Joiners of America, Local No. 1100, AFL- CIO; and International Hod Carriers', Building and Common Laborers' Union, of America, Local No. 556, AFL-CIO, herein jointly called the Unions or the Respondents. The issue litigated was whether the Respondents violated Section 8 (b) (1) (A) of the Act by causing the employees of W. D. Don Thomas Construc- tion Co., herein called Thomas, to strike with an object of causing Thomas to cease doing business with Howard C. Johnson, his plumbing subcontractor. The General Counsel and the Respondents filed briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Thomas is engaged, as general contractor, in constructing a building at Winslow, Arizona, to be occupied, upon completion, by Mountain States Telephone Company, at a contract price of about $175,000. Materials and supplies used in the construc- tion of the said building valued in excess of $50,000 will be, or have been, purchased from suppliers and materialmen located outside the State of Arizona and delivered to the construction site at Winslow, Arizona. II. THE LABOR ORGANIZATIONS INVOLVED The Respondents are, each of them, labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES This is a routine secondary boycott case involving a construction job in Winslow, Arizona. W. D. Don Thomas was the general contractor on the job, Ellis Tacke, his job superintendent. Work on the project began about September 8, 1959. Carpenters, laborers, and cement finishers, three of the crafts represented on the job were, from the start, obtained through union hiring halls, though Thomas, who described himself as having been a union man all his life, did not actually sign a labor agreement covering the job until October 8. The plumbing subcontractor, Howard C. Johnson, was, however, nonunion. Beginning with the second week of operations, the project was on several occasions visited by the business agents of the respective craft unions represented on the job, as well as Bud Martin, representative of the Plumber's union. On one of the earliest of these visits, Martin asked Tacke to give him the name of the plumbing sub- contractor and Tacke replied that he did not have that information but would find out; when the inquiry was repeated a week later, Tacke informed Martin that the plumbing contract had been sublet to Johnson. It is his undisputed testimony that UNITED ASSOCIATION OF JOURNEYMEN, ETC., LOCAL 469 39 Martin replied, "Well, that won't do. He is nonunion; we can't have him on the job." According to Tacke, Martin made substantially the same statement on later visits to the project. Some preliminary work on plumbing was done by one of Johnson's employees on October 12 and 13. On October 13, Business Agents Martin, Don Wright for the Laborers, Johnme Kropp for the Carpenters, and a Teamsters' representative, Logan, were at the jobsite. There were no plumbers on the job on this occasion, but the union business agents obviously observed that some work had been done by plumbers. Wright asked Tacke who had done the work, and Tacke replied, "Johnson." Thereupon, still according to Tacke's undisputed testimony, Wright said, "Well, I'm going to have to pull our boys off.. " There were then employed on the job one carpenter and three laborers. On the following day, October 16, a Friday, these employees did not report for work. I do not understand that it is disputed that the four employees, in not reporting for work on October 16, engaged in a strike. Their respective union business agents had talked to them before leaving the jobsite on the previous day. I find that they did not report for work on October 16 because their respective business agents had instructed them not to, and that this represented coordinated action on the part of the Respondents. On this same day, Johnson filed a charge of unfair labor practices against the Respondents. On the following Monday the men returned to work. On this same day a master plumber and a helper, Johnson's employees, came on the job to work, but were stopped by Tacke. Tacke testified he told the master plumber, "he could not work that day; he would have to stay off the job. I told him we had the strike and that Thomas had agreed to keep the plumbers off the job until things were settled." On October 26, Johnson's plumbers returned to the jobsite and from that date have worked uninterruptedly. - From the foregoing it would appear obvious that an object of the work stoppage on October 16 was to cause Thomas to cease doing business with his nonunion sub- contractor Johnson. The Unions' defense is that the work stoppage was due solely to dispute with Thomas concerning the employment at the jobsite of a nonunion night watchman. All the evidence we have on this is in the testimony of Thomas and Tacke.1 Tacke admitted that the night watchman, or guard, Bert Parker, was not hired through the unions. When the business agents visited the jobsite on October 15, they discussed Parker's employment with Tacke, asked his rate of pay, whether or not he carried a gun and badge, etc. Business Agent Wright said that he was being paid below the union scale. Thomas testified that at a meeting with union business agents on Monday, October 19, the matter of Parker's status was discussed. Apparently, the issue was whether Parker was a guard or watchman, Thomas taking the position that inasmuch as he carried a gun and wore a badge he was a guard and therefore not under union contract; the Unions taking the position that he was it watchman and therefore came under the standard labor agreement The upshot of the discussions was that Parker's wages were raised to the union scale, and on October 27 Parker joined the appropriate union. It does not appear to me that the matter of Parker's job status was brought into full focus until after the work stoppage of October 16 had occurred. There was certainly a substantial question as to whether Parker was a watchman or guard, and when the union agents discussed the matter with Tacke on October 15, he took no position in the matter. Nor does it appear that when approached in the matter, Thomas put up much resistance to the Union's position. Thomas, in testifying, obviously was trying to state nothing more injurious to the Respondents than was required of him. Thus, he testified that when he talked to Business Agent Kropp on Saturday, October 17, and informed him that Johnson had filed a charge of unfair labor practices, Kropp said he would have the men back on the job the following Monday "if he had to drive and pick them up " He also testified that his action in keeping the plumbers off the job on Monday, October 19, was "volun- tary." not suggested by union agents. If he had not believed, however, that the employment of nonunion plumbers was a moving cause of the work stoppage on the previous Friday, he would hardly have taken this action, and there is Tacke's testimony that Thomas, in instructing him to keep the plumbers off the job on October 19, said that he had talked to Kropp and that Kropp's men would report for work providing there were no plumbers on the job. It appears clear to me that there is nothing here to overcome or balance all reasonable inferences to be drawn from Tacke's conversations with union business agents on October 15 and prior to 1 The Respondents called no witnesses. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that date in which they stated in effect that a subletting of the plumbing work to Johnson would not do because he was nonunion, and Wright's statement on October 15, after learning some plumbing had actually been done by Johnson employees, that he was "going to have to pull our boys o ff On all the evidence I find that an object of the work stoppage which occurred on October 16 was to cause Thomas to cease doing business with Johnson, and that the Respondents' action in causing the said work stoppage was therefore violative of Section 8 (b) (4) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in section III , above, occurring in connection with the operations of the Employer, set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening commerce and the free flow of commerce. Upon the basis of the above findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Thomas, the Employer, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondents are, each of them, labor organizations within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging employees of Thomas to engage in a strike with an object of forcing Thomas to cease doing business with Johnson, his plumbing subcontractor, the Respondents jointly and severally have engaged in unfair labor practices within the meaning of Section 8(b) (4) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. [Recommendations omitted from publication.] 2It is true, as argued by Respondents In their brief, that no employees walked off the job on October 12 and 13, when one of Johnson 's men was at work at the jobsite ; and that Martin visited the jobsite on October 13 , when Johnson's man was at work, and said and did nothing about It. Neither of these circumstances , on the evidence, has much if any significance . The men did not walk off the job on October 12 and 13, be- cause they were not directed to by their union agents, and there Is no evidence that while Martin was at the jobsite on October 13, he saw or had any knowledge that a plumber was at work on the job. APPENDIX A NOTICE TO ALL MEMBERS OF UNITED ASSOCIATION OF JOURNEYMEN AND AP- PRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL No. 469, AFL-CIO Pursuant to the recommendations of a Trial Examiner 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 employees of W. D. Don Thomas Construction Co., or the employees of any other employer , to engage in, a strike or concerted refusal to work where an object thereof is to force the above-named employer or any other employer or person to cease doing business with Howard C. Johnson. UNITED ASSOCIATION OF JOURNEYMEN AND AP- PRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LocAL No. 469, 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. SNAKE RIVER TROUT COMPANY 41 APPENDIX B NOTICE TO ALL MEMBERS OF UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL No. 1100, AFL-CIO Pursuant to the recommendations of a Trial Examiner 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 employees of W. D. Don Thomas Construction Co., or the employees of any other employer, to engage in, a strike or concerted refusal to work where an object thereof is to force the above-named employer or any other employer or person to cease doing business with Howard C. Johnson. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL No. 1100, 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. APPENDIX C NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL No. 556, AFL-CIO Pursuant to the recommendations of a Trial Examiner 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 employees of W. D. Don Thomas Construction Co., or the employees of any other employer, to engage in, a strike or concerted refusal to work where an object thereof is to force the above-named employer or any other employer or person to cease doing business with Howard C. Johnson. INTERNATIONAL HOD CARRIERS ', BUILDING AND COM- MON LABORERS' UNION OF AMERICA, LOCAL No. 556, 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. Snake River Trout Company I and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 368, AFL-CIO, Petitioner. Case No. 19-RC-2591. September 14, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before a hearing officer of the Na- tional Labor Relations Board. His rulings made at the hearing are free from prejudicial error and are affirmed. i The name of the Employer appears as amended at the hearing. 129 NLRB No. 12.