Int'l Brotherhood Electrical Workers, Local 59

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 2 107 NLRB 299. 135 NLRB No. 55. INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 59 505 861 (Plauche Electric, Inc.).' Therefore, as the Trial Examiner's holding here was based upon a decision which the Board has overruled, the finding of a violation on the theory followed by the Trial Ex- aminer cannot be sustained. As the Respondent was engaged in com- mon situs picketing, the issue now to be resolved is whether that picketing conformed to the standards enunciated by the Board in Moore Dry Dock Company.' In Moore Dry Dock the Board determined that picketing at the premises of a secondary employer would be primary if certain condi- tions were met : (a) The picketing is strictly limited to times when the situs of dispute is located on the premises of the secondary em- ployer; (b) at the time of the picketing the primary employer is en- gaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer. All these con- ditions were met in the present case. Thus, the picketing occurred only at those times that Andersen, in the course of its normal busi- ness, was performing the electrical work at the common situs, and this picketing was limited to an area adjacent to where Andersen's em- ployees were at work. Although the picket signs did not specifically name Andersen as the employer with whom the Respondent had a dispute, the signs did recite that it was the "Electrical work" on the project that was considered unfair. As it appears that only Ander- sen was performing such work, we find that the signs sufficiently identified the dispute as one with Andersen. For the foregoing reasons, we shall dismiss the complaint herein. [The Board dismissed the complaint.] MEMBER RODOERS dissenting : In International Brotherhood of Electrical Workers, Local Union 861 (Plauche Electric, Inc.), 135 NLRB 250, I noted my disagree- ment with my colleagues' decision to overrule Washington Coca Cola Bottling Works, 107 NLRB 299. For the reasons set forth in my dissent in that case, and because the record in the instant case demon- strates that Andersen had a place of business to which the Respondent could have confined its dispute rather than carrying it to a secondary situs and involving employees of secondary employers, I agree with the Trial Examiner that the Respondent violated Section 8(b) (4) (i) and (ii) (B) of the Act. Consequently, I would adopt the Intermedi- ate Report, together with its conclusions and recommendations. MEMBER LEEDOM took no part in the consideration of the above De- cision and Order. 3135 NLRB 250. 92 NLRB 547. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding against International Brotherhood of Electrical Workers, Local No. 59, herein also called the Union or the Respondent, involves 8(b)(4)(i) and (ii) (B) allegations, and was initiated by C. F. Andersen, d/b/a Andersen Company Electrical Service, herein also called Andersen or the Charging Party. The hearing was conducted on November 3 and 4, 1960, at Dallas, Texas. The Respondent and the General Counsel filed briefs with the duly designated Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINOs OF FACT 1. THE BUSINESS ACTIVITIES OF THE EMPLOYERS INVOLVED Caliber Construction Company, Inc., a New York corporation, was the general contractor in the construction of a department store building for Spartan Department Stores of New York at Dallas, Texas, which construction project is hereafter referred to as the Spartan job. During the times of the incidents involved, except for a job superintendent, Caliber Construction had no persons employed on the Spartan job. Spartan Department Stores leased equipment for use in the actual operations of the Dallas store valued at about $100,000 from a New York firm, which equipment came from various shipping points outside the State of Texas.' The construction work on the Spartan job was done in part by the subcontractors described below who together added contract values of labor and materials to the building involved in excess of $100,000. Andersen Company Electrical Service, the Charging Party and the alleged primary employer, was the electrical subcontractor. During the 12-month period ending October 1960, Andersen purchased from suppliers located in Texas materials, equip- ment, and machinery valued at $53,864, for use in Andersen's business operations. Each of the suppliers themselves received in the year ending October 1960, more than $50,000 worth of goods directly from outside the State of Texas. Of the $53,864 worth of goods so received from suppliers by Andersen, the record is clear and it is sufficient to find that Andersen purchased goods having a total value of $131.67 from suppliers, Summers Electric Company and A. A. Porter Lighting Fixtures Co., Inc., which suppliers had in turn received these goods directly from points outside the State of Texas .2 Under the contract with Caliber Construction, Andersen was to furnish all the labor, tools, and equipment for a contract price of $51,500. Texas Automatic Sprinkler, Inc., the automatic sprinkler subcontractor on the Spartan job, in the conduct of its business in the year ending October 1960, pur- chased supplies directly from points outside the State of Texas valued at about $1,500,000. Under a contract dated August 12, 1960, with Caliber Construction establishing the price of $20,000, for labor and materials, Texas Automatic supplied at least $10,653.79 worth of materials which came directly from outside the State of Texas to its Houston plant where the materials were fabricated and then shipped to the jobsite at Dallas. Carrier-Boch Company was the air-conditioning subcontractor. During the year ending October 1960, Carrier-Boch received in excess of $50,000 worth of materials directly from points outside the State of Texas in the conduct of its business. During the same period, Carrier-Boch furnished materials valued at $25,500, to the Spartan job which came directly from points outside the State of Texas. Weaver Iron Works supplied the steel for the Spartan job. During the year ending October 1960, Weaver Iron shipped materials valued in excess of $50,000 directly from the State of Texas to the State of Oklahoma for use at another Caliber Construc- tion job. During the same period, Weaver Iron supplied approximately $13,720 worth of steel to the Spartan job which had been shipped directly from points outside the 1 These findings are based upon evidence adduced by the General Counsel other than the testimony of V. L. Shamburger, job superintendent for Caliber Construction. Although the Trial Examiner does not view Shamburger's testimony as reliable in any respect as to Caliber's business activities because of Shamburger's lack of familiarity with the subject, his testimony Is relied upon for findings as to incidents which revolve around the actual construction of the Spartan job in the section entitled, "The events" 2 The record is not entirely clear that Andersen's other suppliers furnished Andersen with materials which came directly to these suppliers from points outside the State of Texas. INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 59 507 State of Texas. There is no allegation that Weaver Iron employees were present or were induced by the Respondent's conduct .3 It is sufficient to find and the Trial Examiner finds, as the aggregate of Andersen's purchases from suppliers who received the. goods directly from outside of the State amounting to $131.67, Weaver Iron Works' deliveries of steel directly from outside the State to the Spartan job amounting to $13,720, Carrier-Boch's furnishing of materials to the Spartan job directly from out of the State amounting to $25,500, and Texas Automatic's furnishing of materials to the Spartan job directly from outside the State of Texas amounting to $10,653.79, reaches a total value of $50,005.46, that it would effectuate the policies of the Act to _ assert jurisdiction in this proceeding.4 II. THE LABOR ORGANIZATION INVOLVED The Respondent, International Brotherhood of Electrical Workers, Local No. 59, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The General Counsel alleges that the Union's picketing of the Spartan job be- ginning September 21, 1960, in the circumstances described below, induced and en- couraged the employees of Kobey Luck, Home Plumbing, Texas Automatic Sprinkler, Carrier-Boch, and others, and threatened, coerced, and restrained Caliber Construc- tion, Kobey Luck, Home Plumbing, Carrier-Both, and other persons in violation of Section 8(b) (4) (i) and (ii) (B) of the Act. B. The events On September 3, 1960, Andersen began working on the Spartan job as the electrical subcontractor. A few days earlier Andersen had contracted with Caliber Construc- tion, the general contractor, to do all the electrical work and furnish all the materials, tools, and equipment. On September 20 Charles Savage, assistant business agent of the Union, appeared at the Spartan job and talked to Caliber's Job Superintendent V. L. Shamburger. In this conversation Savage, referring to Andersen, pointed out that there was a nonunion contractor on the job. Shamburger replied that he knew that, explained that he did not let the contracts, and invited Savage to talk to Andersen. Shamburger and Savage then talked with Andersen at his tool shed. Savage asked Andersen if he would be willing to go union. Andersen understood, as was the fact, that the union scale of wages was higher than he was paying his men, and replied that he had bid on the job on a nonunion pay scale and that if he did go union it would break him. Savage thereafter asked Shamburger to have Arthur Sutton, president of Caliber, contact him, Savage. The following day, September 21, the Union picketed the Spartan jobsite on the public way immediately adjacent to the place where Andersen was engaged in work. The picket sign read: Electrical work on this project unfair to wages and conditions of Electrical Workers Local Union No. 59 After the pickets appeared employees of subcontractors who were scheduled to work that day, September 21, did not work. The subcontractors so affected were: Home Plumbing (plumbing); Kobey Luck (brickwork); and Corisp and Vaughn (concrete work). The employees of other subcontractors, Carrier-Boch (air-conditioning) and Texas Automatic Sprinkler (sprinkler system) did work as scheduled. It does not ap- pear that Caliber had any employees at the jobsite during the course of the picketing. Prior to the time the employees of the subcontractors enumerated above failed to work, Shamburger telephoned Andersen and asked him to come to the jobsite. When Andersen arrived at the site the employees of the subcontractors referred to were not 8 According to the General Counsel, Weaver Iron Works, the steel supplier , subcontracted the labor or erection work to Weaver Brothers , another firm with which Weaver Iron Works has no connection. 4 See Marie T. Reilly, d/b/a Reilly Cartage Co., 110 NLRB 1742 ; Euclid Foods, Incorpo- rated, 118 NLRB 130 ; Ada Transit Mix, 130 NLRB 788; and Better Electric Co, Inc, et at, 129 NLRB 1012 ; W. H. Arthur Company, 115 NLRB 1137 Cf. Carpenters Local Union No. 1028, etc. (Dennehy Construction Company ), 111 NLRB- 1025 , and Newark & Esseco Plastering Co., 121 NLRB 1094. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working. Shamburger told Andersen to remove his men from the job until the matter was straightened out. Andersen thereupon removed his men. Later that day Savage and Lawrence Darsey, business manger of the Union, appeared at the site and talked with Shamburger. Shamburger told the union officials that he had removed Ander- sen's men from the job and that they would remain off the job until the matter was straightened out. The Union's picket line was thereafter removed. The employees of the plumbing and concrete subcontractors thereafter went to work. At Sutton's suggestion to have the electrical work done at night Shamburger asked Andersen beginning about September 22, to do the electrical work when the other trades had left the job and on weekends. Andersen arranged to have the work so performed. This work arrangement under which Andersen tried to be inconspicuous by waiting for the other trades to leave the job continued until October 3. The Union did not picket during this period. It does not appear that the Union knew that Ander- sen's men were working on the job after hours and weekends. Andersen was not getting satisfactory production working nights and on October 3, he returned his men to day work. The next day, October 4, the Union resumed picketing in the same manner nand carrying the same legend on its signs as is described above relating to the events of September 21. In addition on this occasion the pickets also distributed the following notice: NOTICE This picketing is being conducted by Electrical Workers, Local 59 for the sole purpose of advising the public of the substandard wages and working conditions being observed by Andersen Company on this site. Andersen Company's pay- ment of these low wages and refusal to observe good working conditions con- stitute a threat to the good wages and conditions established over the years by Local 59, and we feel it our duty to publicize this situation. We are not seeking by this publicity campaign to induce or encourage any em- ployee or employees of any employer other than Andersen Company to refuse to work or to perform any services in the course of his or their employment. We do not ask nor do we seek to compel Andersen Company to recognize or bargain with Local 59 as the representative of its employees. Our only purpose is to publicize the adverse wages and working conditions observed by Andersen. Anytime Andersen Company unilaterally ceases to undercut union wages and working conditions, this picket will be removed. We are picketing Andersen Company only. ELECTRICAL WORKERS, LOCAL UNION No. 59. ,On the same day Andersen and Caliber received a telegram from the Union as follows: Previously this Local Union has picketed your company at its job on Kiest Blvd in Dallas. This picketing was for ,the sole purpose of protesting the substandard wages and working conditions under which your employees work. Any future picketing directed towards your firm will be for this purpose alone. We do not suggest or request that you recognize or bargain with this local union in any manner, we do not wish you to interfere with your employees in their right to join or refrain from joining any union. Our sole purpose in the past and in any future picketing is to protest the wages and working conditions paid by your company. You may bring an end to this picketing at any time you commence paying wages and observing working conditions that do not undercut union standards . Please feel free to use this telegram to advise your employees and anyone else of the purpose of our picketing. LOCAL 59 INTL BROTHERHOOD OF ELECTRICAL WORKERS, By L. E. DARSEY. Although the telegram was delivered to Caliber in the above form , the instructions Western Union received were to send the original to Andersen and a copy to Caliber. On this day, October 4, upon the advice of counsel, Andersen informed the Union, as was the fact, that in the future instead of reporting for work at the jobsite all his employees would first report to his place of business on Exposition Avenue where he maintained a shop and an office. It does not appear that Andersen's employees were required to report at Andersen's place of business at the end of the day . Prior to the time of the Spartan job in almost all instances Andersen's men reported at the office before going to work on any job. Men employed on the Spartan job who lived in a part of town more convenient to this job than to Andersen's place of business had been permitted to check in at the job with the foreman and did not first report at Andersen's office. Although men have occasion to appear at the Exposition Avenue INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 59 509 location during the day to get materials and to work in the shop, almost all their time is spent on the respective jobsites. The picketing described above which began on October 4, ended on the morning of October 14. The Union did not picket Andersen's location on Exposition Avenue or the other jobsites at which Andersen's men were employed. For about 3 days during the October 4 to 14 period when the Union picketed at the Spartan jobsite, with minor exception that job was shut down. In an effort to get the subcontractors to have the work performed, Shamburger told them that the dispute was with Ander- sen and to support this position, Shamburger showed the subcontractors the notice the pickets were distributing quoted above. Some of the subcontractors decided to work and others decided not to ask their men to work behind the picket line. Of the about eight subcontractors who had been scheduled to work, the following decided not to ask their men to work behind the picket line during the 3-day shutdown: Kobey Luck, Home Plumbing, Corisp and Vaughn, Texas Automatic Sprinkler, and Carrier- Boch. Caliber did not have any employees at the jobsite during the course of the picketing. By contract amendment dated October 14, Andersen and Caliber, among other things agreed as follows: The Contractor, Caliber Construction Company, Inc., shall procure and pay the wages of Union electrical workers, who shall be used in the completion of the contract. C. F. Andersen shall personally have the complete supervision of the completion of the contract, and shall be entitled to supply a General Foreman on said job. On the morning of October 14, Andersen's men were not on the Spartan job and the employees of Hall-Fisk, another electrical contractor who employed union- men, appeared to perform the work. The Union thereupon withdrew its pickets. After October 14, Andersen supplied the materials for the Spartan job, including some materials prefabricated by Andersen's employees in the shop at Exposition Avenue, and provided a general foreman to work in cooperation with the union electricians. C. The conclusions The Union's picketing of the Spartan jobsite on September 21 and from October 4 to 14-+the literal appeal of the picket signs and the notices distributed by the pickets notwithstanding--constitutes inducement or encouragement of employees, who must perform services behind the picket line, to engage in a refusal to perform services for their employer; and such picketing-whether or not it results in a strike or refusal to work by employees-is within the reach of Section 8(b) (4) of the Act, if directed to one of the objectives therein prohibited.5 As the Union elected during October to picket only the Spartan jobsite-the place where employees of neutral employees were engaged in their work-when it could have publicized its dispute with Andersen and solicited the support of his employees at times when they reported for work at Andersen's place of business,6 it is found, at least in part, that an object of the Union's September and October picketing was to force subcontractors Home Plumbing, Kobey Luck, Carrier-Boch, Texas Automatic, and Corisp and Vaughn to cease doing business with the general contractor, Caliber Construction, and thereby force Caliber Construction to cease doing business with Andersen. Notice is taken that the commercial construction industry is an industry affecting commerce. As the general contractor and the subcontractors functioned on the Spartan job as a part of the commercial construction industry, it is found that they are engaged in an industry affecting commerce and that the Union's picketing in Sep- tember and October 1960, induced and encouraged the employees of the subcon- tractors named above, including Carrier-Boch and Texas Automatic, each of whom is also engaged in commerce within the purview of the Board's jurisdictional stand- ards to engage in a strike or a refusal in the course of their employment to perform services, and coerced and restrained Caliber Construction for the proscribed object within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act.7 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in, section III,, above, occurring in connection with the operations of the employers described in section I, above, and the employers S Calumet Contractors Association , 130 NLRB 78. _ 6 See Washington Coca Cola Bottling Works, 107 NLRB 299; Dallas County Construc- tion Employers' Association, 124 NLRB 696. 7 See, a g., Gilmore Construction Company, 127 NLRB 541, footnote 6. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described in section III, 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 obstructing commerce and the free flow thereof. V. THE REMEDY .Having found that the Union violated Section 8(b) (4)•(i ) and (ii) (B ) of the Act, it will be recommended that the Union cease and desist therefrom and 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. The Respondent, International Brotherhood of Electrical Workers, Local No. 59, is a labor organization within the meaning of Section 2(5) of the Act. 2. Caliber Construction, Home Plumbing, Kobey Luck, Carrier-Boch, Texas Auto- matic Sprinkler, and Corisp and Vaughn are persons engaged in an industry affecting commerce within the meaning of Section 8 (b)(4) of the Act; and Carrier-Boch and Texas Automatic are also engaged in commerce within the purview of the Board's jurisdictional standards. 3. By picketing the Spartan job, the Respondent has induced and encouraged employees of subcontractors , Home Plumbing, Kobey-Luck, Carrier-Boch, Texas Automatic, and Corisp and Vaughn to engage in a strike or a refusal in the course of their employment to perform services, and has restrained and coerced Caliber Construction with an object of forcing or requiring Caliber Construction to cease doing business with Andersen, and has thereby violated Section &(b) (4) (i) and (ii) (B) ofthe 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.] Gaylord Printing Co., Inc. and Detroit Printing Pressmen and Assistants' Union No. 2, International Printing Pressmen and Assistants' Union of North America, AFL-CIO and Local 9, Amalgamated Lithographers of America , Party to the Con- tract. Case No. 7-CA-3085. January 24, 1962 DECISION AND ORDER On October 16, 1961, Trial Examiner Arthur E. Reyman 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. He also recommended dismissal of the com- plaint concerning an alleged 8 (a) (3) violation.' Thereafter the Gen- eral Counsel and Local 9, Amalgamated Lithographers of America, the Party to the Contract, each filed exceptions to the Intermediate Report and supporting briefs. The Trial Examiner found no 8(a) (3) violation for lack of evidence that the union- security provisions of the contract , which he had found to be unlawful, had been applied to any individual employee . We do not reach that question in view of our dismissal of the complaint in its entirety. 135 NLRB No. 58.