Int'l Brotherhood Electrical Workers, Local 861

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Trial Examiner finds that an object of Respondent's picketing was (1 ) to force or require the secondary employers to cease doing business with Hansberger , (2) force or require the secondary employers to cease doing business with Hicks in order to force Hicks to cease doing business with Hansberger ; and (3 ) force or require Hicks to cease doing business with Hansberger, thereby violating Section 8(b) (4),(i) and (n) (B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, above , occurring in connec- tion with the operations of the employers here involved, as set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and , such of them as have been found to constitute unfair labor practices , tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has violated Section 8 ( b) (4) (i) and (ii) (B) of the Act, it will be recommended that it be ordered to cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Hicks, Anderson, Trigg, and Hansberger are, and during all times material have been , employers engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is, and during all tunes material was , a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in, and inducing and encouraging employees of other employers to engage in a strike and other concerted refusals to handle goods or services of Hansberger, or threatening, coercing, or restraining a person in an industry affecting commerce, by picketing or otherwise , with an object of forcing him to cease doing business with another, Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i ) and (ii) (B) of the Act. 4 The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7 ) of the Act. [Recommendations omitted from publication.] Converters Union, Local 388, AFL (Sealright Pacific, Ltd) v. Le Baron, 171 F. 2d 331, 334 (C A. 9 ) See also N L R B v. Denver Building and Con8truction Trade8 Council, at at (Gould & Preisner), 341 U.S. 675 ; Stover Steel Service v. N L R B, 219 F. 2d 879 (C.A 4) International Brotherhood of Electrical Workers, Local 861, AFL-CIO [Ace Electric Company] and Wilmer J. 1Vlilam. Case No. 15-CB-482. January $4, 1962 DECISION AND ORDER On November 8, 1960, Trial Examiner C. W. Whittemore 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. 135 NLRB No. 44. INT'L BROTHERHOOD ELECTRICAL..WORKERS, LOCAL 861 499 Pursuant to the provisions of Section 3;(b) of the National Labor Relations Act, the.Board has delegated its-powers-in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. 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 Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions noted below. As, set forth in the Intermediate Report, Wilmer J. Milam, the Charging Party and a member of a local affiliated with the same International as the Respondent, was referred by the Respondent to the Employer I in March 1958, and was hired. In March 1959, how- ever, Lard, the Respondent's business manager, asked the Employer to discharge Milam. The Employer refused this request. In Decem- ber 1959, Lard again told the Employer that the Respondent wanted Milani discharged, explaining that he "had members of his own local [i.e., the Respondent] who were not working and since Milam was a traveler [i.e., not a member of the Respondent] he felt that [the Employer] should get rid of him and put a local man on." The Employer again refused, noting that Milam's work *as satisfactory. The record indicates that throughout this period, the Respondent had both a formal contract and an exclusive hiring agreement with the Employer, and, therefore, had control over the Employer's labor supply. . Later in December "1959, Lard directed Milam, to discontinue his employment with the Employer, asserting as' a reason' that the-Em- ployer was delinquent in his payments to a union benefit fund. Milam refused, and told Lard that he believed this was a pretext to induce him to quit his employment voluntarily. On January 6, 1960, Milani was notified that charges, signed by Lard, had been filed with the Respondent alleging, that' lie had violated union bylaws and the con- tract between the Respondent and the Employer z When the Respond- ent conducted a hearing based on these charges, Milani was found 1 Prior to January 1, 1960, Albert K. Newlin, a sole proprietor , was engaged In, the electrical and mechanical contracting business under the name "Ace Electric Company." On January 1, 1960, Newlin, without changing the functions of the business , incorporated it under the laws of Louisiana as "Albert K. Newlin, Incorporated " Although Albert K. Newlin, d/b/a Ace Electric Company, and Albert K. Newlin, incorporated , are referred to in our discussion above as the Employer, the order and the attached notice refer only to the corporation which we find to be a successor to the sole proprietorship. 2 Milani was charged with violation of article VII, section 2, of the bylaws . which em- powers the business manager to remove any member from his job "for not complying with our laws and rules, or when he decides the best Interests of the Local Union requires such removal . . .. The charges also specified that Milam violated article III, section 3, para- graphs 4, 5, and 6, of the contract between the Respondent and the Employer. This contract is not In evidence, and the record does not otherwise disclose what the charges of contract violation entailed. " 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guilty and fined $25, plus $20 for each day he continued to work for the Employer. After the hearing, Milam quit his job. On these facts, we agree with the Trial Examiner's conclusion that the Respondent's attempt to get Milam discharged in December 1959 was violative of Section 8(b) (2) of the Act.' A violation of Sec- tion 8(a) (3) would manifestly have resulted if the Employer had dismissed Milani because of his want of membership in the "local," the reason stated by Lard in requesting Milam's removal from the payroll. Furthermore, there is no room, in the circumstances of this case, for a contention that Lard's remarks to the Employer, in urging the latter to "get rid of" Milam for this unlawful reason, constituted mere "views, argument or opinion" within the protection of Sec- tion 8 (c) of the Act 4 ORDER Upon the entire record in this 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, International Brotherhood of Electrical Workers, Local 861, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Attempting to cause Albert K. Newlin, Incorporated, to dis- charge or in any manner discriminate against Wilmer J. Milam, or any other employee, in regard to the hire or tenure of employment or any term or condition of employment in violation of Section 8(a) (3) of the National Labor Relations Act, as amended. (b) In any like or related manner restraining or coercing any employee of the aforesaid employer in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all other such activities , except as authorized in Section 8(a) (3) of the Act, as amended. 3 The complaint does not allege that the Respondent violated the Act by fining M ilam in January 1960 ; nor does the complaint allege that the Respondent caused Milam's dis- charge, or caused him to quit his employment. At the hearing, the General Counsel's representative specifically stated that "I do not seek and am not seeking any sort of remedy with regards to the fine and its imposition . . Our findings , and the Order we are issuing, are limited accordingly. 4 See, as to the inapplicability of Section 8(c) to "exhortation of another to action which is intended to cause . . unlawful discrimination ," NLRB . v. Jarka Corporation of Philadelphia, 198 F. 2d 618 (CA 3), and cases there cited; see also, International Brotherhood of Electrical Workers, Local 501, et al. v. N.L.R.B. (Samuel Langer), 181 F 2d 34, 38-39 (C.A. 2), affd 341 U.S. 694, 704, and the legislative history of Section 8(b) (2) and ( c) reviewed by the Board in Sub Grade Engineering Company, 93 NLRB 406. Compare Local 392, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Scheniey Distillers, Inc.), 122 NLRB 613, 615. INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 501 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify, in writing, Albert K. Newlin, Incorporated, that it has withdrawn its objections to the employment of Wilmer J. Milam, and notify the said Milam, in writing, that it has so informed the said Employer. (b) Post at its office and usual membership meeting place, copies of the notice attached hereto marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by an authorized representative, be posted by it immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (c) Forthwith mail copies of the said notice, after such copies have been signed, to the said Regional Director, for posting at the place of business of Albert K. Newlin, Incorporated, that Employer being willing. (d) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 5In the event that this Order is enforced by a decree of a United State 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 To MEMBERS OF THIS UNION AND EMPLOYEES OF ALBERT K. NEWLIN, INCORPORATED 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 give notice that : WE WILL NOT attempt to cause Albert K. Newlin, Incorporated, to discharge or in any other manner discriminate against Wilmer J. Milam or any other employee in regard to the hire or tenure of employment or any term or condition of employment in viola- tion of Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like manner restrain or coerce employees of Albert K. Newlin, Incorporated, in the exercise of the right to self-organization, to form, join, or' assist labor organizations, to bargain collectively through representatives of their own choos- 502 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from --any or all of such activities , except in the manner permitted in the provisos to Section 8(a) (3). INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 861, 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. Employees may communicate directly with the Board's Regional Office (2026 St. Charles Avenue, New Orleans 13, Louisiana; Tele- phone Number, 529-2411) if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE A charge having been filed and duly served, a- complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondent Union, a hearing involving allegations of unfair labor practices in viola- tion of Section 8(b) (1) (A) and (2 ) of the National Labor Relations Act, as amended, was held in Lake Charles, Louisiana, on October 17, 1960, before C. W. Whittemore, the duly designated Trial Examiner. At the hearing General Counsel and the Respondent were represented by counsel and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Brief oral argument appears in the record, the filing of briefs was waived. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED For a number of years before January 1, 1960, and at all times material herein, Albert K. Newlin was sole proprietor of Ace Electric Company, engaged in business as an electrical and mechanical contractor in Lake Charles , Louisiana. On or about January 1, 1960, Albert K. Newlin, Incorporated, was organized under the laws of Louisiana as successor to and to continue the business of Albert K. Newlin d/b/a Ace Electric Company. During the year ending December 31, 1959 , Albert K. Newlin purchased and caused to be transported and delivered in interstate commerce to his place of busi- ness in Lake Charles, Louisiana, directly from States other than Louisiana, goods and materials valued at more than $50,000. Prior to January 1, 1960, Albert K . Newlin d/b/a Ace Electric Company was an employer engaged in commerce within the meaning of the Act. Since the aforesaid date Albert K. Newlin, Incorporated , has been and is an employer engaged in com- merce within the meaning of the Act. II. THE RESPONDENT UNION International Brotherhood of Electrical Workers, Local 861, AFL-CIO, is a labor organization within the meaning of the Act. INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 861 503 III. THE UNFAIR LABOR PRACTICES A. Facts and issues In this case the facts are few and the issues simple. In March 1958 the Charging Party, Wilmer J. Milam, was referred to a job with Ace Electric by the Respondent Union. He was not a member of Local 861, but was of another local of the same International-referred to in the record as a "foreign" local. He was hired and remained an employee of Ace Electric until mid-January 1960. In March 1959, Albert Newlin was approached by Business Manager Arneth Lard of Local 861, and, asked to let Milam go, on the ground that members of that Local were then unemployed. Newlin declined the request. In mid-December Lard again approached Newlin, and in the presence of the latter's son, now secretary-treasurer of the corporation, again demanded that Milam be discharged. Newlin again refused.' - Having failed to persuade Newlin to fire Milam, Lard ordered the employee him- self to quit his job, claiming that Newlin was in delinquency in contributing to certain pension funds. Milam refused to quit. Whereupon Lard filed charges with the Local, claiming that Milani had violated some section of the bylaws by refusing to quit his job. The Local thereafter tried Milam, found him guilty, and imposed so heavy a fine upon him, for each day that he continued to work, that the employee quit his job with Newlin. Shortly thereafter, it appears, arrangements were made between Milani and Newlin whereby the former was given continuous work under subcontract, and he was employed in this fashion at the time of the hearing. The sole issue here is whether the Respondent unlawfully attempted to cause Newlin to fire Milam in violation of Section 8(a)(3) of the Act. The sole remedy sought by General Counsel is a cease-and-desist order. B. Conclusions In substance, the sections of the Act invoked by General Counsel make it an un- fair labor practice for a labor organization to cause or attempt to cause an employer to discharge an employee for any reason other than his failure to tender dues under a lawful contract requiring membership. The evidence establishes plainly that Lard, an official of the Respondent, in December 1959, attempted to cause Newlin to discharge Milam for some reason other than his failure to pay dues. The apparent reason was Lard's desire to obtain the job for some member of the Local which he represented-Milani having been refused membership in that Local. This attempt to cause Newlin himself to violate the Act constituted violation of Section 8(b) (2) of the Act on the part of the Respondent. It follows, derivatively, that this attempt to cause Newlin to discharge him discrimi- natorily was coercive and restrained Milam in the exercise of his rights as guaran- teed by Section 7 of the Act. It is so concluded and found. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations of the employer involved as described 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 and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices the Trial Examiner will recommend that it cease and desist therefrom and take certain affirma- tive action to effectuate the polices of the Act. 1 The Trial Examiner does not accept as true Lard's denials that he ever asked Newlin to discharge Milani. Documents in evidence, signed by Lard himself, fully establish the fact that he went even to the extent of filing charges against the employee with the Local In order to oust him from his job, and he admits having ordered Milam to leave Newlin's employment 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Local 861 , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By attempting to cause Newlin to discharge employee Milam in violation of Section 8(a) (3) of the Act, the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1)(A) and (2 ) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] International Brotherhood of Electrical Workers, Local No. 59 and C. F. Andersen, an Individual d/b/a Andersen Company Electrical Service. Case No. 16-CC-98. January 24, 1962 DECISION AND ORDER On March 22, 1961, Trial Examiner Max M. Goldman issued his In- termediate 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 Intermediate Report attached hereto. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Intermediate Report, together with support- ing briefs.' 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 finds merit in certain of the Respondent's execeptions. Accord- ingly, the Board adopts the findings and conclusions of the Trial Ex- aminer, only to the extent consistent with the following : In finding that the Respondent's picketing at the construction site where Andersen Company Electrical Service was at work violated Sec- tion 8 (b) (4) (i) and (ii) (B) of the Act, the Trial Examiner noted that Andersen had a permanent place of business where the Respond- ent could have picketed to publicize its dispute, and he accordingly held the Board's decision in Washington Coca Cola Bottling Works 2 to be governing. Recently, the Board had occasion to reconsider the doctrine of the Washington Coca Cola case and decided to overrule it. See International Brotherhood of Electrical Workers, Local Union 1 The Respondent's request for oral argument is hereby denied as the record , including the exceptions and briefs, adequately presents the issues and positions of the parties. s 107 NLRB 299. 135 NLRB No. 55.