Local 1098, Int'l Hod Carriers, Building, Etc.

LOCAL 1098, INT'L HOD CARRIERS, BUILDING, ETC. 1147 Local 1098, International Hod Carriers, Building and Common Laborers Union of America , AFL-CIO and Bernard Card & Sons, Inc. Bernard Card & Sons, Inc. and District 50, affiliated with United Mine Workers of America (Ind.), Petitioner and United Brotherhood of Carpenters and Joiners of America , Local 334, AFL-CIO. Cases Nos. 7-CP-25, 7-CC-200, and 7-RC-1993. February 7, 1963 DECISION AND ORDER On October 31, 1962, Trial Examiner Horace A. Ruckel 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 attached Intermedi- ate Report. The Trial Examiner also found that Intervenor in the consolidated representation proceeding had not established its claim that the election was invalid, and recommended that its motion to revoke and set aside the certification of United Mine Workers of America, District 50, be denied. Thereafter, the Intervenor and the General Counsel filed exceptions to the Intermediate Report, the Inter- venor with a supporting brief and the General Counsel with a support- ing statement. The Respondent filed no exceptions. 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 Rodgers and Fanning]. 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 Intermedi- ate Report and the entire record in the case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner as modified herein.' 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, Local 1098, Inter- 1 Inasmuch as the record does not show by written contract or other evidence any in- terest by the Intervenor in representing employees of the Employer at the time the peti- tion in the representation case was filed or the consent election agreed to , we find that the Intervenor was not entitled to notice of that proceeding and that, accordingly, the certification of United Mine Workers of America, District 50, was valid. We find merit in the exceptions of the General Counsel to the effect that the Trial Examiner's Recommended Order and notice are not sufficient , and amend them accordingly. 140 NLRB No. 96. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD national Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Engaging in, or inducing or encouraging individuals employed by Bernard Card & Sons, Inc., or any other person engaged in com- merce or in an industry affecting commerce, to engage in, strikes or refusals in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, mate- rials, or commodities, or to perform any service; or threatening, coercing, or restraining any person engaged in commerce or in an industry affecting commerce, where an object is to force or require Bernard Card & Sons, Inc., to recognize Respondent, Local 1098, In- ternational Hod Carriers, Building and Common Laborers Union of America. AFL-CIO, as the representative of its employees, where District 50, affiliated with United Mine Workers of America (Ind.), or any other labor organization, has been certified as the representative of such employees. (b) Picketing, or causing to be picketed, or threatening to picket, or threatening to cause the picketing of, Bernard Card & Sons, Inc., ,at its jobsites in Pinconning, Michigan, or elsewhere, where an object of such picketing or threats is to force or require Bernard Card & Sons, Inc., to recognize or bargain with Respondent, Local 1098, In- ternational Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, as the representative of its employees, or forcing or requiring said employees to accept or select Respondent, Local 1098, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, as their collective-bargaining representative, where (1) Bernard Card & Sons, Inc., has lawfully recognized, in accordance with this Act, District 50, affiliated with United Mine Workers of America (Ind.), or any other labor organization, and a question concerning representation may not appropriately be raised under Section 9(c) of the Act, or (2) within the preceding 12 months a valid election under Section 9 (c) of this Act has been conducted among employees of Bernard Card & Sons, Inc. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Post at its business office and customary membership meeting place in Saginaw, Michigan, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being signed by a duly authorized representative of the said Respondent Union, be posted by it immediately upon receipt thereof, and be maintained by it for 2 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 " LOCAL 1098, INT'L HOD CARRIERS, BUILDING , ETC. 1149 60 consecutive days thereafter, in conspicuous places, including all places where notices to members of Respondent Union are customarily posted. Reasonable steps shall be taken by the said Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Forthwith mail copies of the said notice to the said Regional Director at the Regional Office of the National Labor Relations Board in Detroit, Michigan, after such copies have been signed as provided above, for posting by Bernard Card & Sons, Inc., it willing, at the places where it customarily posts notices affecting its employees. (c) Notify the Regional Director for the Seventh Region, in writ- ing within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the motion of Local 334, United Brother- hood of Carpenters and Joiners of America , AFL-CIO, to revoke and set aside the certification of United Mine Workers of America, District 50, be, and it hereby is, denied. APPENDIX NOTICE To ALL MEMBERS OF LOCAL 1098 , INTERNATIONAL HOD CAR- IUERS, BUILDING AND C0313ION LABORERS UNION OF AMERICA, AFL- CIO, AND EMPLOYEES OF BERNARD CARD & SONS7 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, as amended, we hereby notify you that : WE WILL NOT engage in , or induce or encourage individuals employed by Bernard Card & Sons, Inc., or any other employer, to engage in, strikes or refusals in the course of their employ- ment to use , manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any service, or threaten , coerce, or restrain any person en- gaged in commerce or in an industry affecting commerce, where an object is to force or require Bernard Card & Sons , Inc., to recognize us as the representative of its employees , where District 50, affiliated with United Mine Workers of America (Ind.), or any other labor organization , has been certified as the representa- tive of such employees. A`TE WILL NOT picket, or cause to be picketed, or threaten to picket, Bernard Card & Sons, Inc., at its jobsites in Pinconning, Mich- igan, or elsewhere, where an object of such picketing or threats is to force or require Bernard Card & Sons, Inc., to recognize or bargain with us as the representative of its employees or to force or require said employees to accept or select us as their collective- bargaining representative where ( 1) Bernard Card & Sons, Inc., 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has lawfully recognized, in accordance with this Act, District 50, affiliated with United Mine Workers of America (Ind.), or any other labor organization, and a question concerning representa- tion may not appropriately be raised under Section 9(c) of the Act, or, (2) within the preceding 12 months a valid election under Section 9 (c) of this Act has been conducted among employees of Bernard Card & Sons, Inc. LOCAL 1098, INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION OF AMERICA , AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit 26, Michigan, Telephone No. 963-9330, if they have any question con- concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed on June 6, 1962 (Case No. 7-CP-25), and June 8, 1962 (Case No. 7-CC-200), by Bernard Card & Sons, Inc., herein called Card , the Regional Director for the Seventh Region of the National Labor Relations Board, herein called the Board, on June 29 , 1962, issued a complaint charging the commission of unfair labor practices by Local 1098 , International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, herein called Respondent. On July 11, 1962, United Brotherhood of Carpenters and Joiners of America, Local 334, AFL-CIO, herein called the Carpenters or Intervenor, filed a motion (Case No. 7-RC-4993) to revoke a certification as bargaining representative previously ac- corded the Petitioner, District 50, affiliated with United Mine Workers of America (Ind.) on the ground of fraud and collusion and the further ground that a contract existed between the Carpenters and Card which was a bar to the certification. On July 26, 1962, the Board issued an order authorizing the Regional Director to con- solidate Case No. 7-RC-4993 with Cases Nos. 7-CP-25 and 7-CC-200, for the pur- poses of hearing. The Regional Director did so. The complaint alleges that Respondent committed unfair labor practices in viola- tion of Section 8(b) (7) (A) and (B ), and 8 (b) (4) (i) and (ii) (C) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act, by picketing Card at a jobsite within 12 months of a valid Board election, al- though District 50 is, and Respondent is not , the certified representative of Card's employees , for the purpose of compelling Card's employees to accept Respondent instead of the Petitioner , as their representative , and to force or require Card to bargain with Respondent . Respondent's answer denies the commission of any unfair labor practices. Pursuant to notice, Trial Examiner Horace A. Ruckel conducted a hearing at Saginaw, Michigan , on August 15, 16, and 17, 1962, at which the parties were duly represented . The parties waived oral argument and the General Counsel and Re- spondent have filed briefs with me. Upon the entire record in the case, and from my observation of the witnesses, I make the following: LOCAL 1098, INT'L HOD CARRIERS, BUILDING, ETC. 1151 FINDINGS OF FACT 1. CARD'S BUSINESS Bernard Card & Sons, Inc., is a Michigan corporation, with its principal office and place of business at Rose City, Michigan. It is engaged in the sale and erection of steel and prefabricated steel buildings in the State of Michigan. During the year 1961, a representative period, Card, in the course and conduct of its business, pur- chased and caused to be transported to its place of business in Rose City from points outside the State of Michigan, steel and other building materials valued in excess of $200,000. The complaint alleges and Respondent admits that Card is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 1098, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO; District 50, affiliated with United Mine Workers of America (Ind.); and United Brotherhood of Carpenters and Joiners of America, Local 334, AFL-CIO, are labor organizations admitting employees of Card to membership. III. THE UNFAIR LABOR PRACTICES Background On or about January 18, 1961, after examining authorization cards signed by a majority of its employees, Card recognized District 50 as the collective-bargaining representative of its construction employees and entered into a 1-year collective- bargaining agreement. On August 9, 1961, District 50 filed a petition with the Regional Director (Case No. 7-RC-4993). On August 18, District 50 and Card executed an agreement for a consent election in a bargaining unit consisting of all its construction employees, with the usual exceptions. The election was held on September 1, following which District 50, on September 13, was certified as bar- gaining representative of the employees in the unit. Following certification, Card and District 50 continued to give effect to their January 18, 1961, agreement, and on January 18, 1962, the parties executed a 2-year agreement, which they are observing. 1. The picketing During the early part of 1962, Card began the erection of a prefabricated steel building at Pinconning, Michigan, for Sterling Coffee Company . Shortly thereafter a representative of Respondent informed the president of Sterling that there would be a labor dispute at the jobsite unless members of AFL-CIO unions were used to perform work with Pinconning job. In consequence , a meeting took place attended by representatives of Card, Respondent , and District 50, at which Respondent's representative demanded that Card live up to the terms of a 1956 agreement between the two, hereinafter discussed , and place members of Respondent on the job as laborers. When Sam Franklin, field representative of District 50, stated that that organization was the certified representative of Card's employees , Hellerman, at- torney for Respondent , asserted that unless Card observed the 1956 agreement Re- spondent would picket every job performed by Card. On or about June 4, 1962 , shortly after Card began work at Pinconning, and while several of Card's employees were on the job, Respondent placed a picket at the only entrance to the jobsite, who carried a picket sign with the legend: This project does not employ Union Laborers Local 1098 , AFL-CIO The picketing continued daily during working hours for 3 or 4 weeks until Card closed down work on the project. 2. The issues a. The Intervenor's claim Section 8 (b) (4) (i) and (ii) (C) of the Act declares it an unfair labor practice for a union to induce or encourage any individual employed by a person engaged in commerce to refuse to perform services or to threaten, coerce, or restrain any such person where an object is to force or require any employer to recognize or bargain with a labor organization if another labor organization has been certified as the representative of the employees . Section 8 (b)(7)(A) and ( B) makes it an unfair labor practice to picket for such objects where an employer has lawfully 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognized another labor organization, or where within the preceding 12 months a valid election has been conducted under Section 9(c) of the Act. It is admitted that an election was held under Section 9(c) within 12 months prior to picketing by Respondent, but both Respondent and Intervenor assert that the election was not a valid one and was brought about by the fraud of District 50, because the petition filed by District 50 stated in the space provided for such purpose that no other labor organization claimed to represent Card's employees, whereas in fact both Respondent and Intervenor did so claim. Furthermore, both Respondent and Intervenor say that at the time of filing the petition they had existing written collective-bargaining agreements with Card covering the common laborers and the carpenters, which constituted a bar to the election. Hence, Respondent's picketing was not a violation of the Act since the election was not valid, and because Respond- ent's picketing was not for an object proscribed by the Act but only to protect an existing contract. It is admitted that the petition of District 50 stated that no other labor organiza- tion had an interest in Card's employees and that, in consequence, the usual copy of the petition was not sent to either Respondent or Intervenor. As concerns Intervenor, both the question of fraud and of contract bar may be summarily disposed of. Although the Intervenor's motion to revoke certification asserts that it has an existing, written agreement with Card, executed in 195'6 and automatically renewable from year to year thereafter, it adduced no evidence what- ever of any such agreement. Bernard Card, called as a witness by the General Counsel, testified that Card never had a written agreement with the Intervenor, and James Finkbeiner, attorney for Card in 1956 when Card entered into various labor agreements, called by Intervenor, testified that he knew of no agreement having been executed between Card and Intervenor. Robert James, business representative for the Carpenters, testified that when he took over his duties in 1956, in "browsing over" his files he came across a document similar to the form of agreement cus- tomarily used by the Carpenters, signed by his predecessor, Majher, and bearing the name of Bernard Card & Sons in longhand in a place reserved for the employer's signature. James admitted that he was not familiar with Card's signature. He did not examine the document at the time, and sometime later when he looked for it he could not find it. It has not been seen since. Since there is no evidence that the document in question was signed by Card, or delivered, or that any demand was made by Intervenor or Card for the production of a copy, I conclude and find that the document, whatever it was, did not come into existence as a labor contract between Card and Intervenor, and that it could not constitute a bar to District 50's petition. Nor is there any other evidence that District 50, at the time of the election, knew that the Carpenters claimed to represent any of Card's employees. b. Respondent's claim The existence of an agreement between Card and Respondent is another matter. It is conceded that in 1956 Card entered into collective-bargaining agreements with several labor organizations, including Respondent. The latter agreement, dated July 16, 1956, is in evidence. It provides for an initial term of 1 year and automatic renewal thereafter from year to year in the absence of written notice to modify or amend by either party 60 days before the anniversary date of the agreement. It is conceded that no such notice has ever been given by either party. The General Counsel contends, however, that Respondent has abandoned this agreement and that consequently it cannot now serve as a bar to the election and the certification of District 50. At the time of the execution of the 19-96 agreement Respondent did not contend that it represented any of Card's employees. Card, by an understanding with John Schaepf, the business agent of Respondent, was permitted to determine unilaterally which of his employees would become members of Respondent, and in November 1956, Card designated six employees for that purpose and paid half their initiation fees. Of these six employees, five continued in Card's employ and paid union dues in 1956 and again for a period in 1960 only. The 1956 agreement provided for payments by Card into a statewide health and benefit fund, jointly administered by trustees appointed by Card and Respondent. Card at no time made payments into the fund although in March 1957 Respondent -requested Card to do so, but did not pursue the matter. The contract provided for a grievance procedure and for the appointmnt of a steward. No steward was appointed and grievances which arose were resolved by Card unilaterally. The agreement provided for double time for work performed on holidays, but Card paid LOCAL 1098, INT'L HOD CARRIERS, BUILDING, ETC. 1153 them time and one-half without protest by Respondent. Nor did Respondent protest Card's failure to require employees to become members of Respondent within 31 days from the first day of employment, as provided by the agreement though various employees were employed for longer periods. Card has from time to time adjusted and changed the wage rates provided for in the original agreement, but always by ,agreement with its employees individually, and not by consultation or bargaining with Respondent. The testimony of Steve Majher, then business agent for Respondent, is that in the spring of 1958, he called on Bernard Card and asked whether laborers employed by Card had kept up their dues and for permission to sign them up as members, stating also that he would "like to have (Card) sign back up with the laborers union." To this last statement Card said it was up to the men themselves. Majher then offered Card "a 1958 contract," in booklet form, and Card examined it and said that he was paying more than the wage scale it provided for. Nothing was said about the 1956 contract. Although it is somewhat difficult to evaluate this conversation, I conclude that Majher at this time did not consider that Respondent then had a contract with Card and wanted Card to sign a contract similar to that existing be- tween Respondent and other employers, as exemplified by the booklet, but did not get around to negotiating one. During the entire period from 1956 to date Respondent has never requested Card to negotiate any changes in the agreement with Respondent. Nor does it appear from this record that Respondent, with the exception of its letter in March 1957, previously referred to, ever entered into correspondence with Card regarding wages, hours, or other conditions of employment of its common labor employees. In January or February 1961, Francis Hovey, assistant business representative for Respondent, went to the site of a job being performed by Card, and talked with Bernard Card and James Kleekamp, Card's vice president. Kleekamp testified that Hovey stated that he had heard that Card's employees had voted to join District SO and asked when it had occurred and if Card had a contract with that union. Card said that the election had taken place 2 or 3 days previously and that a contract was being negotiated. Hovey then said, according to Card and Kleekamp, that it was "too bad," and that he "guessed" he would have to wait until the following year and sell Card's employees on joining Respondent. Hovey's version of this conversa- tion is that he asked Kleekamp if he had any laborers on the job and that Kleekamp said that Card was "dickering" on another contract and could not do business any longer with Respondent, to which Hovey replied that Respondent had an agreement with Card which he hoped to have enforced. I credit Kleekamp's account, substan- tiated by Card, rather than Hovey's. Following this conversation neither Hovey nor any other representative of Respondent took any step to protect Respondent's asserted contract with Card, and did not communicate with Card concerning the wages, hours, and working conditions of Card's employees, other than at the meeting in the early part of 1962, previously related, at which Respondent simply asked Card to "live up" to the 1956 contract and threatened to picket Card's jobs. Conclusions Since the execution of the 1956 agreement Respondent has not actively imple- mented its provisions, nor met with Card regarding grievances, wages, or any other matters affecting the welfare of the employees, or set up any grievance committee; and Card has, since the inception of the agreement, disregarded its provisions with respect to payment of holiday pay and payment into Respondent's welfare fund with- out protest from Respondent other than one pro forma request for payment into the welfare fund, which it did not follow up. Otherwise the contacts between Card and representatives of Respondent have had principally to do with getting work for laborers and deducting their dues, and occasional exhortations to "live up to" the 1956 contract. In my opinion, Respondent virtually abandoned its 1956 contract, which has lost all binding effect on the parties.' I find therefore that this agreement does not constitute a bar to the representation proceeding or invalidate the certifica- tion of District S0 as the representative of Card's employees. I further find that by reason of its abandonment and by the amorphous character of the relationship be- tween Card and Respondent since 1956, District 50 was not obligated to name Re- spondent on its petition as a labor organization claiming to represent Card's em- ployees. Respondent's claim of fraud or misrepresentation is not substantiated. 'See Farm Tools, Inc, 88 NLRB 606; The Hemingway and Bartlett Manufacturing Company, 80 NLRB 989 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because, as I find, Respondent's 1956 contract was not a bar to the election, and District 50 was under no obligation to name Respondent in its representation peti- tion as an organization seeking to represent Card's employees, it follows that the election was valid, and from this, that Respondent's claim of invalidity is not a defense to its picketing of Card's jobsite at Pinconning, Michigan, beginning in June 1962. Respondent, an uncertified labor organization, in picketing Card's jobsite within a year of a valid election and after District 50 had been certified, did so for the object of forcing or requiring Card to recognize and bargain with it as the repre- sentative of Card's employees, in violation of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of the employer as 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 and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative ac- tion that I find necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Bernard Card & Sons, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent and Intervenor are labor organizations within the meaning of Sec- tion 2(5) of the Act. 3. By picketing Bernard Card & Sons, Inc., since June 4, 1962, with an object of forcing and requiring Card to recognize and bargain collectively with Respondent, notwithstanding that Respondent was not then certified as the representative of Card's employees, without a petition being filed under Section 9(c) of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(b) (7) (A) and (B) of the Act. 4. By inducing and encouraging employees of Card at its Pinconning, Michigan, jobsite not to perform services at such site, with an object of forcing or requiring Card to recognize or bargain with Respondent, Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (C) of the Act. 5. 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.] Great Leopard Market Corporation, Inc., d/b/a King Jack's Foodarama and Amalgamated Food Employees Union, Local 196, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case No. AO-49. February 7, 1963 ADVISORY OPINION This is a petition filed by Amalgamated Food Employees Union, Local 196, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Petitioner, for an Advisory Opinion in conformity with Section 102.98 and 102.99 of the Board's .Rules and Regulations, Series 8, as amended. On January 16, 1963, Bennet F. Schauffler, Regional Director for the Fourth Region of the 140 NLRB No. 104.