Plumbers & Pipefitters Local No. 471, Etc.

PLUMBERS & PIPEFITTERS LOCAL NO. 471, ETC. 329 3. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Local 2 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Plumbers & Pipefitters Local No. 471, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting In- dustry of the United States & Canada, AFL-CIO and Leo E. Murray, Inc., an Individual, d/b/a Wyckoff Plumbing. Case No. 20-CC-229. January 18, 1962 DECISION AND ORDER This proceeding is brought under Section 10(b) of the National Labor Relations Act. Upon a charge filed by Leo E. Murray, Jr., an individual, d/b/a Wyckoff Plumbing, herein called Wyckoff, the General Counsel of the National Labor Relations Board by the Re- gional Director for the Twentieth Region issued a complaint dated November 30, 1960, against Plumbers & Pipefitters Local No. 471, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States & Canada, AFL-CIO, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (4) (i) and (ii) (B) and Section 2(6) and (7) of the Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served upon Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that on or about October 13, 1960, and various unknown dates during October and November 1960, Respondent threatened to picket the Fortuna Union High School jobsite of Beacom Construc- tion Company, herein called Beacom, a person engaged in commerce or in an industry affecting commerce, if Beacom continued to do business with Wyckoff at said jobsite. The complaint further alleged that on or about November 2, 1960, Respondent picketed the said jobsite and that, as a result of the picketing, the employees of Beacom ceased work. Objects of the above-described acts and conduct of Respondent, the complaint alleged, were to force and require Beacom and other persons engaged in commerce or in an industry affecting commerce to cease doing business with Wyckoff and to force or require Wyckoff to recognize and bargain with Respondent, although Respondent had not been certified as the representative of Wyckoff's employees in ac- cordance with the provisions of Section 9 of the Act. On December 21, 1960, all parties to this proceeding entered into a stipulation of facts and jointly requested the transfer of this proceed- 135 NLRB No. 49. S30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing directly to the Board for findings of fact, conclusions of law, and issuance of a Decision and Order based thereon. In the "Petition and Stipulation of Facts" the parties agreed that the stipulation together with the charge and complaint should constitute the entire record in this case. The parties further stipulated that they waived a hearing before a Trial Examiner, the making of findings of facts and con- ,clusions of law by a Trial Examiner, and the issuance of an Intermedi- ate Report and Recommended Order. On June 5,1961, the Board approved the petition and stipulation of facts and accepted the transfer of the case. Upon the basis of the stipulation and the entire record in the case including the brief, the Board 1 makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS Wyckoff is engaged at Fortuna, California, as a plumbing contrac- tor and in the sale of plumbing supplies. During the 12-month period immediately preceding the execution of the stipulation herein, Wyck- off, in the course and conduct of its business, purchased materials valued in excess of $70,000, of which approximately $25,000 worth was received directly from out-of-State sources or from suppliers in California to whom they were shipped from outside the State. • Beacom, a California corporation, is engaged in business at For- tuna, California, as a general contractor, principally in the construc- tion of schools and commercial structures. During the. 12-month period immediately preceding the execution of the stipulation herein, Beacom, in the operation of its business, purchased materials valued in excess of $150,000, of which materials valued at approximately $50,000 originated outside the State of California. At all times ma- terial to this proceeding, Beacom was engaged in the construction of school buildings for the Fortuna Union High School District at For- tuna, California, for the contract price of approximately $650,000. The value of the construction materials used and to be used by Beacom and its subcontractors on the Fortuna Union High School project originating outside the State of California is in excess of $50,000. • We find, in accordance with the stipulation, that Wyckoff and Beacom are now, and have been at all times material herein, engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case. 1 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 McCulloch and Members Leedom and Fanning]. PLUMBERS & PIPEFITTERS LOCAL NO. 471, ETC . 331 II. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Respondent through its agent, Roy Van Norman, made several efforts to organize the employees of, and to gain recognition from, Wyckoff. Its most recent efforts in this regard occurred in June 1960. Later, around the middle of October 1960, Van Norman in- formed Beacom's president, James Beacom, that the Respondent intended to picket Wyckoff to inform the public of disputes with that company regarding employment of apprentices and alleged violations of State and Federal labor laws. Van Norman added that the picket- ing would include the Fortuna Union High School jobsite while Wyckoff was engaged there. About October 14, 1960, Wyckoff began working on the school as a subcontractor for Beacom, and on Novem- ber 1, 1960, Van Norman told Beacom's superintendent that the Respondent would commence picketing Wyckoff at the school site the following day. The pickets appeared a day or so later carrying signs reading as follows : AFL-CIO Picket Wyckoff Plumbing Unfair to Organized Labor Plumbers & Pipefitters Local No. 471 After the picketing began, Van Norman told Beacom that the Re- spondent Union was engaging in a "legal" picket line for purely in- formational purposes and would continue to picket so long as Wyckoff was on the job. When the picketing commenced, Beacom's employees ceased work. The pickets ceased their activities some 10 minutes after they appeared when Beacom had Wyckoff's employees removed from the job. At that time, the other employees returned to work. Though Wyckoff's employees came back on the job about a week after the foregoing incidents, there has been no resumption of picketing. The General Counsel contends, first, that the Respondent Union's notification to Beacom that it intended to picket Wyckoff at the school jobsite was a threat designed to cause Beacom to cease doing business with Wyckoff and, thus, violated Section 8(b) (4) (ii) (B). There is, however, no evidence that the notice had such purpose. Under the circumstances, the giving of notice to a prime contractor of prospec- 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive picket action against a subcontractor does not, we find, constitute a violation of the Act as alleged.2 Second, the General Counsel contends that Respondent Union's picketing of the school site violated Section 8(b) (4) (i) and (ii) (B) of the Act. In explicating its position, the General Counsel contends that because Wyckoff maintained a permanent place of business only 2 miles from the jobsite where the Respondent could have adequately publicized its dispute, the picketing at the jobsite to cause Beacom to cease doing business with Wyckoff was violative of the Act under the principles enunciated in the Washington Coca Cola case,' that common situs picketing is unlawful when the primary employer has a regular place of business in the locality which can be picketed. However, the Board in its recent decision in Plauche Electric, Inc.,4 has over- ruled the Washington Coca Cola case to the extent that the place of picketing is no longer the decisive, but is rather but one of several factors to be considered in determining the lawfulness of picketing. The evidence here shows, as the General Counsel stresses, that Wyckoff maintained its principal place of business at a location only 2 miles from the school jobsite and that its construction employees normally reported morning and evening to the shop at that location and occa- sionally at other times. However, that fact does not, under the de- cision in Plauche Electric, of itself proscribe the Respondent's picket- ing at the school site. In that case, as here, the employees involved reported to the primary employer's establishment several times a day but spent the majority of their time working at a jobsite away from their employer's premises. Under such circumstances, picketing at a common situs, the Board held, would not be unlawful if it were in accord with the standards set down in Moore Dry Dock 5 Conse- quently, we conclude that the fact the Respondent did not restrict its picketing to some place near or at Wyckoff's main establishment does not in itself constitute a violation of the Act. Rather under the facts here the question is whether the picketing met the Moore Dry Dock standards. 2 See General Drivers, Chauffeurs, and Helpers, Local Union No. 886 ( The Stephens Company), 133 NLRB 1393, the "second letter," Member Leedom dissenting on this point ; Construction, Building Material and Miscellaneous Drivers Local Union No. 83, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., 133 NLRB 1144, In which it was held that the mere giving of notice of prospective strike action against a subcontractor to the prime contractor does not violate Section 8(b) (4) (ii) (B). s Brewery and Beverage Drivers and Workers, Local No. 67, International Brotherhood of Teamsters, etc. (Washington Coca Cola Bottling Works, Inc.), 107 NLRB 299. 4 135 NLRB No. 41. 5 Sailors' Union of the Pacific, AFL ( Moore Dry Dock Company ), 92 NLRB 547, 549. There the Board held that picketing at a secondary employer 's premise is lawful primary picketing "if it meets the following conditions: (a) The picketing is strictly limited to times when the situs of dispute Is located on the secondary employer 's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; ( c) the picketing Is limited to places reasonably close to the location of the situs; and (d ) the picketing discloses clearly that the dispute is with the primary employer." MARTIN SPROCKET & GEAR, INC. 333 In the situation before us, it is clear that the situs of the dispute was the school jobsite and that the picketing occurred at that location. Further, the evidence shows that the picket signs clearly stated the dispute was with Wyckoff and that the picketing occurred only while Wyckoff's employees were on the job and engaged in the normal busi- ness of their employer. Consequently, the picketing here fell within the standards set forth in Moore Dry Dock. Thus, as there are no factors present and independent of the picketing demonstrating that the picketing had, in fact, an unlawful purpose, we find that Re- spondent's picketing of Wyckoff at the school jobsite did not violate Section 8(b) (4) (i) and (ii) (B). CONCLUSIONS OF LAW 1. Beacom Construction Company, together with Leo E. Murray, an individual, d/b/a Wyckoff Plumbing are engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Plumbers & Pipefitters Local No. 471, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States & Canada, AFL-CIO, is a labor organization with- in the meaning of Section 2 (5) of the Act. 3. The Respondent has not engaged in the unfair labor practices alleged in the complaint. [The Board dismissed the complaint.] MEMBER LEEDOM , dissenting : I believe that the Respondent's dispute with Wyckoff could have been adequately publicized at or near the Company's main place of business and that the purpose of its actions at the school jobsite was to enlist the unwilling aid of neutrals in its actions against Wyckoff. Consequently, for the reasons set forth in my dissenting positions in the Stephens Company case (supra, footnote 3) and Plauche Electric Company (supra, separate opinion) I would find the Respondent by its threat to picket and its picketing at the school site violated Sec- tion 8(b) (4) (i) and (ii) (B), as alleged. Martin Sprocket & Gear, Inc. and United Steelworkers of America, AFL-CIO. Case No. 16-CA-1488. January 18, 1962 DECISION AND ORDER On October 10, 1961, Trial Examiner William Seagle issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair 135 NLRB No. 46.