Glaziers, Glassworkers, Etc., Local Union No. 1778

GLAZIERS, GLASSWORKERS, ETC., LOCAL UNION 1778 '487 right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment , as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Jerry Oliveira and Frank Hesters immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of their discharge. All our employees are free to become or to remain members of International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local 320, or any other labor organization, or to refrain from such membership, except to the extent that this right may be affected by an agreement authorized by Section 8 (a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. THE GENERAL TIRE OF MIAMI BEACH, INC.; THE GENERAL TIRE OF MIAMI, INC.; M. O'NEIL PROPERTIES, 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. Glaziers, Glassworkers and Glass Warehouse Workers Local Union No. 1778, Brotherhood of Painters , Decorators and Paperhangers of America, AFL-CIO and E. Frank Muzny. Case No. 23-CC-91. June 4, 1962 DECISION AND ORDER Upon an original charge filed on June 1, 1961, and an amended charge filed on June 6, 1.961, by E. Frank Muzny, an individual, a complaint and notice of hearing was issued on June 23, 1961, by the General Counsel, by the Regional Director for the Twenty-third Region, against the above-captioned Respondent, hereinafter called the Union, alleging that it had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act, as amended. Respondent filed its answer on June 24, 1961, and on July 5, 1961, an order was entered by the Regional Director postponing the date for hearing. Thereafter, on August 1, 1961, the parties entered into a stipulation in which they waived a hearing and the taking -of testimony before a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of an Inter- mediate Report and Recommended Order. The parties provided in their stipulation that the case be submitted directly to the Board for findings of fact, conclusions of law, and Decision and Order, based upon a record to consist of the aforesaid stipulation, the charge and amended charge,. complaint, notice. of hearing, order postponing hearing, Respondent's answer to the coin- 137 NLRB No. 25. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint, and the transcript of record in Clifford W. Potter, Reg. Dir. v. Glaziers, Glassworkers d Glass Warehouse Workers Local Union No. 1778, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (S Q M Glass Co.), 48 LRRM 2874 (D.C. S. Tex.), August 2, 1961. On August 16, 1961, the Board issued an order approving the stipulation and transferring the case to the Board. Thereafter the General Counsel and the Union filed briefs. Upon the bases of the parties' stipulation, the briefs, and the entire record in the case, the Board makes the following: FINDINGS OF FACT I. COMMERCE E. F. Muzny and J. P. Smith are and have been, since at least 1949, copartners doing business as S & M Glazing Company, herein called S & M. During its existence, S & M has been doing outside glazing for Binswanger Glass and Mirror Company of Spring Branch, herein called Mirror, and other companies in the Houston, Texas, area. Binswanger Glass Company, Inc., a Virginia corporation, herein called Binswanger, maintains an office and place of business at Hous- ton, Texas, and is engaged there in the business of commercial glaz- ing. During the 12 months prior to the issuance of the complaint, which is a representative period, goods, materials, and supplies valued in excess of $50,000 were purchased by, and shipped directly to, Binswanger at its said place of business from points outside the State of Texas. Mirror, a partially owned subsidiary of Binswanger, is engaged in the business of automobile glass installation and residential glaz- ing and has its principal office and place of business in Houston, Texas. During the 12 months preceding the issuance of the com- plaint, which is a representative period, goods, materials, and sup- plies valued in excess of $50,000 which originated outside the State of Texas, were purchased by Mirror in said State from suppliers, each of whom had an annual direct inflow of goods, materials, and supplies valued in excess of $50,000. At all times material to the issues herein both Binswanger and Mirror are and have been employers as defined in Section 2(2) of the Act and are and have been engaged in commerce and in an indus- try affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Glaziers, Glassworkers and Glass Warehouse Workers Local Union No. 1778, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. GLAZIERS, GLASSWORKERS, ETC., LOCAL UNION 1778 489 III. THE UNFAIR LABOR PRACTICES Binswanger is engaged in the fabricating, processing, and installa- tion of glass and allied products in Houston, Texas, and elsewhere; its work is described as commercial glazing. Mirror, a partially owned and wholly controlled subsidiary of Binswanger,l is engaged in auto- motive glass installation and in residential glazing. It appears that S & M has been engaged predominantly in the same kind of work as Mirror. The Union has had contracts for several years with Bin- swanger at its Houston location, and with S & M, but never with Mir- ror; its last contract with S & M expired on November 24, 1960. The Union's current 2-year contract with Binswanger, entered into on January 10, 1960, covers Binswanger's Houston employees engaged in the work of outside glazing,2 but specifically excludes automobile glass replacement work from its coverage. It contains a no-strike, no- lockout provision, including provision for binding arbitration of dis- putes as to the meaning or application of the terms of the agreement. The contract also contains the following article pertaining to sub- contracting : 3 Article XVIII: Should any member of the Union contract for work, he shall be considered a Contractor by the Union and shall remain in that classification for a period of six months from date of signing such contracts. The Employer agrees he will not sub- contract by piece work, or otherwise, any work covered by this Agreement to any employee governed by the terms of this Agree- ment. As indicated above, Mirror had used S & M to a great extent for a number of years. The instant dispute was brought about by the fact that Mirror was under contract with S & M to have the latter do com- mercial glazing on windows for its store front at Spring Branch, Texas. Prior to the events involved herein, South, the Union' s busi- ness representative and its agent at all material times, had frequently discussed with Herman, vice president of both Binswanger and Mirror, the use of S & M for subcontracting of work being done by Mirror. On May 11, 1961, South called Herman to tell him that he had seen S & M doing some work on the entrance door of Binswanger's Mirror store, and asked if Herman had a dictionary and knew the definition IIt appears from the evidence herein, and the parties have in effect conceded for pur- poses of this proceeding, that Binswanger and Mirror are a single employer 2It would appear that the Union also has a similar contract with Arrow, another wholly controlled subsidiary of Binswanger engaged in commercial glazing in Houston. According to Vice President Herman who negotiated the contract for both Binswanger and Arrow, he rejected a request by the Union to execute a contract on behalf of Mirror as unnecessary, because its operations were unlike Arrow' s, and because be would try to work things out to avoid difficulty. s Herman interpreted this provision as being inapplicable to individuals specifically in the business of accepting subcontracts. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the word "glazing." When Herman asked why, South replied that he had found S & M people doing work on Binswanger's place, and that he hoped S & M were as capable as Binswanger apparently thought they were, because it looked as if S & M were going to have to do all of Binswanger's work. On May 15, Herman contacted South and suggested discussion. On May 16 there was a meeting of employer and union representatives to discuss the dispute. The union repre- sentatives, including South, asserted that the practice of subcontract- ing by Binswanger and its subsidiaries violated the agreement; they stated, in effect, that Binswanger's glaziers would not work unless Binswanger agreed not to utilize S & M at Mirror's Spring Branch store. The employer representatives, including Herman, requested that the matter be referred to the parties' attorneys for their opinions and possible recommendations. However, the union representatives told the employer representatives that they would refer the matter to the union executive committee before taking any action. On the following day no Binswanger glaziers showed up for work. The glaziers remained out of work until May 19, when Binswanger agreed that it would discontinue the services of S & M until the dispute was finally resolved. Mirror has not employed S & M since completion of the work that was assigned on May 19. Instead, Binswanger's glaziers have been doing the work formerly done by S & M, including both the noncommercial work for which Mirror had formerly used S & M without objection, as well as the commercial work which pre- cipitated the strike. On these facts, we find that the Respondent Union violated Section 8(b) (4) (i) and (ii) (B), as alleged by the General Counsel. It is clear, and the Respondent does not contend otherwise, that Respondent threatened to and did engage in a strike against Binswanger, and that an object of Respondent's conduct was to force and require Binswanger and Mirror to cease doing business with S & M. The Respondent as- serts in its brief to the Board 4 that its conduct was primary and there- fore protected by the proviso to Section 8(b) (4) (B).1 In this con- nection, it claims that its dispute was with Binswanger, not S & M, and that its object was to require Binswanger to perform the ,glazing work with its own employees, rather than through subcontractors. We find no merit in Respondents' asserted defense. As we view the facts, the Union apparently had no objection to S & M's subcontract from Mirror as long as S & M remained under contract with the Union. Only after termination of the Union's contract with S & M did the 4 Although Respondent appears also to have relied at one point on article XVIII of its contract with Binswanger , it does not now urge the contract as a defense In any event, article XVIII would not be applicable , as it applies by its terms only to subcontracting to employees , and not to nonemployees such as S & M. ""Provided, That nothing contained in this clause (B) shall be construed to make un- lawful, where not otherwise unlawful, any primary strike or primary picketing." GLAZIERS, GLASSWORKERS, ETC., LOCAL UNION 1775 491 Union raise any question concerning S & M continuing to perform Binswanger-Mirror work. It is clear from the Union's conduct and statements, and from the strike settlement, that the Union forced Binswanger and Mirror to cease doing business with S & M, not to pro- tect the work of Binswanger-Mirror employees, but because S & M no longer had a contract with the Union. We accordingly conclude the Respondent's strike was not lawful primary action within the intendment of the proviso s IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the business of the Employers 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the en- tire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Binswanger Glass Company, Inc., and Binswanger Glass and Mirror Company of Spring Branch are a single employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Glaziers, Glassworkers and Glass Warehouse Workers Local Union No. 1778, Brotherhood of Painters, Decorators and Paper- hangers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By inducing employees of Binswanger Glass Company, Inc., to strike, and by threatening to strike and striking Binswanger Glass Company, Inc., at Houston, Texas, in furtherance of a dispute with S & M Glazing Company, Respondent has engaged in and is engaging a Cf. N L R.B v. Denver Building and Construction Trades Council, et at (Gould f Preisner ), 341 U.S. 675, 687-689 . The record as a whole does not, in our opinion, sup- port our colleague 's assertion that "no complaint was raised by Respondent until S. & Al. was seen performing work on Binswanger 's premises," or the further assertion that "Respondent did not object to S. & M .' s work for Binswanger , even after Respondent's -contract with S & M expired , until S . & M was hired to perform work on Binswanger's own premises " Rather, as we have noted , supra, there were frequent discussions be- tween South and Herman concerning Mirror's use of S & M, prior to South 's threat to Herman, and Respondent had previously sought to have its contract with Binswanger extended to Mirror. The fact that Respondent did not use proscribed means In further- ance of its object of forcing a total cessation of business , until S & M performed work on Mirror's premises , does not, in our opinion , establish that such object was an incidental .consequence of a legitimate primary strike 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the Act, as amended, the National Labor Relations Board hereby orders that Respondent Glaziers, Glassworkers and Glass Warehouse Workers Local Union No. 1778, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, their officers, agents, repre- sentatives, successors, and assigns, shall: 1. Cease and desist from inducing or encouraging employees of Binswanger Glass Company, Inc., or of any of its subsidiaries, to strike or from threatening, coercing, or restraining Binswanger Glass Company, Inc., or any of subsidiaries, by threats of strike or strike, where an object thereof is to force or require Binswanger Glass Com- pany, Inc., and/or Binswanger Glass and Mirror Company of Spring Branch to cease doing business with S & M Glazing Company. 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, copies of the notice attached marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by Respondent, be posted by it immediately upon receipt thereof, 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 to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Twenty-third Region signed copies of the aforementioned notice for posting by Binswanger Glass Company, Inc., the company willing, at places where notices to its employees are customarily posted. (c) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps have been taken by Respondent to comply herewith. MEMBER FAWNING, dissenting : As in Wiggin Terminals, Inc.,' I believe the majority is confusing lawful primary activity by employees against their own employer with unlawful secondary activity against a neutral employer. By holding P 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." 8 137 NLRB 45. GLAZIERS, GLASSWORKERS, ETC., LOCAL UNION 1778 493 unlawful a traditional primary strike, they are seriously infringing on the right to strike, long recognized as a fundamental guarantee of the Act. This is not a case where employees have struck their employer with an object of causing him to cease doing business with a nonunion firm, solely because the other firm is nonunion, and regardless of whose employees eventually perform the works Nor is it a case where employees have struck to prohibit their employer from subcontracting, but grant him an exception if he will subcontract to firms having con- tractual relations with the union.10 There is no evidence in the pres- ent record of either such intention on the part of Respondent. Rather, the facts show only that Binswanger's employees struck Binswanger because Binswanger assigned commercial glazing work on Bin- swanger's own Mirror store front to S & M, another company, and Binswanger's employees wanted to do this work themselves. S & M, the former subcontractor, had ceased having contractual relations with Respondent Union some 6 months prior to the instant strike, and no complaint was raised by Respondent until S & M was seen performing work on Binswanger's own premises. Binswanger's employees, repre- sented by Respondent, immediately struck their employer to secure this work for themselves, and, as the record shows, were successful and are now performing the work, on the premises of their own employer. Literally, of course, Respondent's actions fit the words of 8(b) (4) (B). But, as I stated in my Wiggin dissent, supra, even the usual strike over wages "almost always has a proliferating effect on the struck employer's business arrangements with his customers, sup- pliers, and other employers. . . . These effects and/or causes respect- ing so-called secondary employers are nevertheless regarded as inci- dental so far as the Act is concerned because they do not change the fundamental character of a primary dispute between an employer and his employees over the wages and terms and other conditions of their own employment. To hold otherwise would, as the Supreme Court has stated, `ban most strikes historically considered to be lawful, so- called primary activity.' " 11 As indicated above, I believe the majority is seizing on the incidental effect of Respondent's strike, Binswanger's cessation of business with S & M, to render unlawful a primary dispute between Binswanger and BE g, Local 1376, United Brotherhood of Carpenters, et at. (Sand Door & Plywood Co.) v. N.L R B., 357 U S. 93. iB E g, Greater St. Louis Automotive Trimmers , etc., 134 NLRB 1354. And see Retail Clerks Union Local 770 v. NLRB. and United States Hardware and Paper Company, et at, 296 F 2d 368, 373 (C A.D C.). ' Local 761 , International Union of Electrical, Radio, etc. V. N L.R B. and General Electric, 366 U.S. 667, 672. See also the proviso to Section 8(b) (4) (B), which states: "Provided, That nothing contained in this clause ( B) shall be construed to make un- lawful, where not otherwise unlawful, any primary strike or primary picketing." 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its own employees over who should perform commercial glazing work at Binswanger's own Mirror premises.12 I would not thereby en- croach on employees' right to engage in a primary strike, and thus dissent from the majority's holding. 12 The majority's conclusion that Respondent was seeking to punish S & M, rather than Secure work for the employer 's own employees , is not in my view supported by the record In fact, the opposite conclusion would appear more plausible , in view of the fact that Respondent did not object to S & M's work for Binswanger, even after Respondent's contract with S & M expired , until S & M was hired to perform work on Binswanger's own premises Moreover, the work which was the subject of the strike is now being per- formed entirely by the striking employees , I e, the employer's own employees however, even assuming arguendo that Respondent 's strike was partly motivated by the expiration of its contract with S & M, I do not believe such subjective motivation is relevant where there is no indication that the strike in question sought anything more than to have the- employer assign the work to his own employees . See Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv L. Rev 1086 , 1118-1119 APPENDIX NOTICE TO ALL MEMBERS OF GLAZIERS, GLASSWORKERS AND GLASS WAREHOUSE WORKERS LOCAL UNION No. 1778, BROTHERHOOD OF' PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES OF BINSWANGER GLASS COMPANY, 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 : AVE WILL NOT induce employees of Binswanger Glass Company,, Inc., or any of its subsidiaries, to strike, or by threatening to, strike or striking the plant of Binswanger Glass Company, Inc.,, or any of its subsidiaries, threaten, coerce, or restrain Binswanger Glass Company, Inc., or any of its subsidiaries, where an object thereof is to force or require Binswanger Glass Company, Inc., and/or Binswanger Glass and Mirror Company of Spring Branch to cease doing business with S & M Glazing Company. GLAZIERS, GLASSWORXERS AND GLASS WAREHOUSE WORKERS LOCAL UNION No. 1778, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, 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, 650 M & M Building, 1 Main Street, Houston, Texas, Telephone Number, Capitol 2-7201, if they have any question concerning this notice or compliance with its provisions.