Operative Plasters' & Cement Mason', Local 44

1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD neering classifications, and on the assumption that they perform duties identical to those of design engineers 80 percent of their working time. However, at the hearing, the Petitioner offered no evidence to refute the evidence introduced by the Employer which shows that the time normally spent by the production line administrator in design engineering functions, except for the completion of those engineering projects they were working on at the time of their transfer into the production line administrator jobs, is almost minimal.' On the basis of the foregoing, we find that the production line administrators are not required to have the training or to utilize the skills of professional engineers in order to perform the functions and duties assigned to them. Accordingly, we find that they are properly excluded from the unit of professional engineers represented by the Petitioner, and we shall deny Petitioner's Motion .4 [The Board denied the motion to clarify the certification in Case No. 3-RC-1634.] ' There is one class A production line administrator in the systems control division who concededly spends most of his time as a design engineer . Because this is a peculiarly isolated case , the Board will not make any generalization as to other production line administrators based on it. 4In view of this determination , we find it unnecessary to reach the Employer 's other contentions why the motion should be dismissed Operative Plasterers' and Cement Masons' International Asso- ciation, Local Union No. 44, AFL-CIO [ Penny Construction Company, Inc.] and William G. Haynes, an Attorney. Case No. 17-CP-?5. October 31, 1963 DECISION AND ORDER On June 12, 1963, Trial Examiner John H. Eadie issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, in its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel, the Charging Party, and the Employer filed exceptions to the Intermediate Report, with supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 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 144 NLRB No. 114. OPERATIVE PLASTERERS' & CEMENT MASONS', LOCAL 44 1299 Intermediate Report and the entire record in this case, including the exceptions and briefs, and finds merit in the exceptions of the General Counsel, the Charging Party, and the Employer. Accordingly, we adopt the findings and conclusions of the Trial Examiner only insofar as they are consistent with our Decision herein. As described more fully in the Intermediate Report, Penny Con- struction Company, Inc., herein referred to as Penny, at all times material herein, was a concrete and cement contractor in the con- struction industry. Penny had no collective-bargaining agreement with any labor organization. In November 1962, Penny entered into a subcontract with Chris Kraft, a contractor, to perform the concrete and cement work for a building project at "Eighteenth and Massa- chusetts" in Lawrence, Kansas. On the evening of November 27, at a special meeting of the executive board of Operative Plasterers' and Cement Masons' International Association, Local Union No. 44, AFL- CIO, the Respondent herein, the union business agent was instructed to picket Penny at the construction site and "to put on information type, substandard wage banner. . . ." On November 29, the Re- spondent began picketing the jobsite with signs reading "Penny Con- struction Company, Inc., is breaking down wage scales and working conditions established by O.P. & C.M.I.A. Local Union No. 44, AFL- CIO." Picketing continued daily for 2 weeks. Although Penny's employees continued working, employees of other employers ceased working or did not cross the picket line. Kraft then arranged the work so that Penny's men would work only on Saturdays when the employees of other employers were not on the job. Thereafter, the picketing was conducted only on Saturdays when Penny's employees were working. The Respondent picketed some but not all the Satur- days when Penny's employees performed work. The picketing ended on January 6, 1963. There were interruptions of services and de- liveries during the picketing, and the completion date of the con- struction was delayed. The Respondent concedes that the picketing lasted more than 30 days and that no representation petition was ever filed. Further, the Respondent has never been certified as the repre- sentative of Penny's employees. The complaint alleged that the Respondent violated Section 8 (b) (7) (C) by picketing the Kraft job for recognitional and organi- zational objects for more than a reasonable period, not to exceed 30 days, without filing a representation petition under Section 9(c) of the Act. Concluding, in agreement with the Respondent' s sole de- fense, that the picketing was designed to publicize the failure of Penny to conform to area wage standards and was not for a recognitional or organizational object, the Trial Examiner recommended that the com- plaint be dismissed in its entirety. We disagree. 727-083-64-vol . 144-83 1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In Houston Building and Constructions Trades Council (Claude Everett Construction Company), 136 NLRB 321, the Board (Members Rodgers and Leedom dissenting) found that the picketing for an object of forcing a company to raise its wages to conform with union rates in the area is not for organization or recognition and therefore is not proscribed by Section 8(b) (7). In that case, the evidence satis- fied the Board that the ostensible purpose was the real purpose of the picketing and that it had no other objective.' In the present case, by contrast, this was not the situation. On the contrary, in a telephone conversation with Stanley Penny after the start of the picketing, the Respondent's business agent, Carr, expressly said, "I would like to get your finishers in our organization and give them job protection that all other crafts are getting in our line of work." In the same conver- sation, the business agent answered affirmatively the following ques- tion asked by Stanley Penny, "Do you want to get together with me about a contract?" The foregoing establishes, and we find, that, despite the wording on the picket signs, organization or recognition was either the objects or an object of the picketing? As the picketing continued for more than a reasonable period of time without the filing of a petition, and, moreover, had the effect of disrupting deliveries and services by employees of other persons, we find that it violated Section 8 (b) (7) (C) of the Act.' THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with the operation of the Companies described in section I of 1 In Claude Everett, the union had never requested recognition of the employer or sought to organize the employer, had made similar protests to other employees against substandard wages wtihout requesting recognition as bargaining representative , and, before commenc- ing picketing, had inquired of this employer about wage rates being paid and had been informed that these were below the union rates. 2 The Trial Examiner discounted this conversation on the sole ground that Penny asked Carr whether he wanted to get together about a contract "without giving Carr the oppor- tunity to explain the object of the picketing " We fail to understand why an employer who is being picketed by a labor organization may not inquire from the representative of that labor organization as to the object of the picketing In any event , even assuming that Penny's inquiry was in some way improper , we do not believe that this fact would in itself require us to disregard Carr's plain admission that the Respondent 's picketing was for a recognitional and organizational object Further, in concluding that the picketing herein was "area standards " picketing, the Trial Examiner relied in part on the minutes of the Respondent 's executive board meeting which stated that the object of the picketing was to protect the union wage scale . We do not believe that such self -serving declarations prove that the picketing was only to protect wage scales where, as here, there is other evidence establishing that the picketing was recognitional and organizational. 3 Construction, Shipyard and General Laborers Local 1207 , AFL-CIO; et at. (Alfred S. Austin Construction Company, Inc), 141 NLRB 283, see also United Association of Journeymen and Apprentices of the Plumbing and Pipefittang Industry of the United Slates and Canada , AFL-CIO, Local Union No 562 (Poor Engineering Company), 143 NLRB 475 . In view of his dissent in Claude Everett Construction Company , supra, Member Leedom would find that, even assuming that the picketing was "area -standards" picketing, it would nonetheless be for a recognitional purpose and therefore within the proscription of Section 8(b) (7). However, Member Leedom agrees with the majority that the record establishes that the picketing herein was not "area -standards" picketing but was for a recognitional and organizational object. OPERATIVE PLASTERERS' & CEMENT MASONS', LOCAL 44 1301 the Intermediate Report, have a close, intimate, and substantial rela- tion 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 TIIE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to 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 Board makes the following : CONCLUSIONS OF LAW 1. Penny Construction Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent, Operative Plasterers' and Cement Masons' International Association, Local Union No. 44, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing the construction job at Eighteenth and Massachu- setts in Lawrence, Kansas, since November 29, 1962, with an object of forcing or requiring Penny Construction Company, Inc., to recog- nize or bargain collectively with the Respondent as the representative of its employees, and with an object of forcing or requiring the em- ployees of Penny Construction Company, Inc., to accept or select the Respondent as their collective-bargaining representative, although the latter was not then certified as the representative of said employees and did not file a petition under Section 9 (c) of the Act within 30 days from the commencement of said picketing, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (7) (C) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 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, Operative Plas- terers' and Cement Masons' International Association, Local Union No. 44, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from picketing, or causing to be picketed, or threatening to picket or causing to be picketed, Penny Construction 1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, Inc., where an object thereof is to force or require said employer to recognize or bargain with the Respondent, or any other labor organization, as the bargaining agent of the employees of Penny Construction Company, Inc., or forcing or requiring the employees of said Employer to accept or select the Respondent, or any other labor organization, as their collective-bargaining representative, in circum- stances violative of Section 8(b) (7) (C) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its business offices and meeting halls in Topeka, Kansas, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by a representative of the Re- spondent, be posted by the Respondent immediately upon receipt there- of, and be maintained by it for a period of 60 consecutive days there- after, 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 Seventeenth Region signed copies of said notice for posting by Penny Construction Com- pany, Inc., if willing, in places where notices to employees are cus- tomarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by the Respondent, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for the Seventeenth Region, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 4In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "A Decision and Order" the words "A Decree of the United States Court of Appeals , Enforcing an Order " APPENDIX NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF PENNY CONSTRUCTION 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, as amended, we hereby give notice that : WE WILL NOT picket, or cause to be picketed, or threaten to picket, or cause to be picketed, Penny Construction Company, Inc., where an object thereof is forcing or requiring said Employer to recognize or bargain with us or any other labor organization as the bargaining representative of its employees, or forcing or requiring the employees of Penny Construction Company, Inc., OPERATIVE PLASTERERS' & CEMENT MASONS', LOCAL 44 1303 to accept or select us or any other labor organization as their collective-bargaining representative, in circumstances violative of Section 8(b) (7) (C) of the Act. OPERATIVE PLASTERERS' AND CEMENT MASONS' INTERNATIONAL ASSOCIATION, LocAL UNION No. 44, 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 or members may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore 1-7000, Extension 731, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE The charge herein was filed on January 16, 1963, and the General Counsel's complaint issued on March 8, 1963. Hearing was held before Trial Examiner John H. Eadie on April 2, 1963, in Lawrence, Kansas, upon the complaint and answer filed by the Respondent. The issues litigated were whether the Respondent violated Sections 8(b)(7)(C) and 2(6) and (7) of the National Labor Relations Act, as amended. After the conclusion of the hearing, the General Counsel and the Respondent filed briefs. Pursuant to agreement at the hearing, the parties also filed a "Stipulation Agreement" with the Trial Examiner, which is received in evidence as Trial Examiner's Exhibit No. 1. Both from the entire record in the case , and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES Penny Construction Company, Inc., herein called Penny, is a Kansas corporation with its principal office and place of business at Lawrence, Kansas, where it is engaged in the construction business. Ready-Mix Concrete Company of Lawrence, Kansas, herein called Ready-Mix , is a Kansas corporation with its principal office and place of business at Lawrence, Kansas, where it is engaged in the operation of a ready-mix and concrete block plant. Stanley Penny is president of Penny and vice president of Ready-Mix. His brother, Junius Penny, is president of Ready-Mix and vice president of Penny. Employees occasionally work for one Company while on the payroll of the other. Stanley Penny formulates and administers the labor policy for both Penny and Ready-Mix. I find that Penny and Ready-Mix comprise a single employer under the Act. During 1962, Ready-Mix manufactured and sold products valued at $410,054.79, of which products having a value of $63,472.63 were sold to Constant Construction Co., Inc., of Lawrence, Kansas. During 1961, Constant Construction Co. purchased materials directly from outside the State of Kansas valued at $84,041 .64. During 1962, said out-of-State purchases by Constant Construction Co. amounted to $165,965.76. I find that Penny and Ready -Mix are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It. THE LABOR ORGANIZATION INVOLVED The Respondent, Operative Plasterers' and Cement Masons' International Asso- ciation, Local Union No. 44, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Penny had a subcontract for "all of the concrete work" for a building construc- tion project at "Eighteenth and Massachusetts" in Lawrence, Kansas, herein referred to as the Kraft job. Penny began work on this job sometime during November 1962. On November 27, 1962, the president of the Respondent called a special meeting of the executive board. The minutes of the meeting read as follows: November 27th, 1962. Special meeting of the executive board called to order by President Worman at 7:30 p.m. for the purpose of discussing the Penny Construction Company. The business agent reported Penny was getting more jobs and was hurting fair contractors and was not paying our wage scale, that B.A. had not . . . contacted Penny or tried to organize his people because he thought it was useless. To support fair contractors B.A. was instructed to put on information type, substandard type banner, substandard wage banner, after consulting attorney to make sure it was legal and we would not get into trouble. Meeting adjourned at 8:30 p.m. E. A. Carr, secretary. The Respondent began picketing the Kraft job about 8 a.m. on November 29 while employees of Penny were working Penny's employees continued to work, but craftsmen of other employers on the job either ceased working or did not cross the picket line. The picket sign was painted on one side only and was carried with the painted side facing away from the construction site. It read "Penny Construction Company, Inc. is breaking down wage scales and working conditions established by O.P. & C.M.I.A. Local Union No. 44, AFL-CIO, 903 Western, Topeka, Kansas." The sign was approximately 2i feet by 3V2 feet. The name of Penny was in red with letters about 4V2 inches in height and about 2i/2 inches in width. The remainder of the sign was in blue, red, and black letters about 2 inches high and about 1 inch wide. The above printing was on white background. Shortly after the start of the picketing on November 29, Phillip Olmstead, the general superintendent of the Kraft job, and Frank Hentsch, a carpenter foreman, went to see Everett Carr, the business agent of the Respondent. Hentsch asked Carr if there was anything they could do to get him and Stanley Penny "together to resolve the dispute." Carr replied that either he would be in his office "or the girl would know where to get ahold of him." About 11 a.m. on November 29, Stanley Penny called Everett Carr. William Haynes, Penny's attorney, and Glenna Davis, Stanley Penny's secretary, listened in on the ensuing telephone conversation; and Davis made a transcript of it. The con- versation was as follows: PENNY- This is Stan Penny, Lawrence, Kansas. CARR: Yes. PENNY' Are you the business agent for the Plasterers and Cement Masons Local44? CARR: Yes, sir. PENNY: You are the business agent-and what is your name? CARR: Everett Carr. PENNY: Everett Carr? CARR: Yes, sir. PENNY: You have a picket on me here in Lawrence. CARR: Yes. PENNY: What do you want me to do about that? Do you want to get me to sign a contract with you? CARR: Well, I would like to get your finishers . in our organization... . PENNY: What was that? I can't hear you. There must be static or some- thing on the line. What was that again? CARR: Well, I would like to get your finishers in our organization and give them job protection that all other crafts are getting in our line of work. PENNY: What do you mean by that? Do you want to get together with me about a contract? CARR: That's what I would like for you to do, yes, sir. OPERATIVE PLASTERERS' & CEMENT MASONS', LOCAL 44 1305 PENNY: I see. Well, I will have to talk with my attorney about this and see what he thinks we can do in the way of negotiation. I will take this up with him. CARR- Okay. PENNY: That's what you want us to do; well, I will talk it over with my attorney. CARR: Okay. Pursuant to an agreement between Olmstead, Chris Kraft, the builder, and Stanley Penny, starting about 2 weeks after November 29 the employees of Penny worked on Saturdays only and the employees of the other subcontractors worked Mondays through Fridays. Thereafter, the Respondent did not picket the job while Penny's employees were not present. It picketed on some but not all of the Saturdays when Penny's employees performed work. The picketing ended on Saturday, January 6, 1963. Carr testified to the effect that during 1962 several contractors had complained that they were unable to compete with Penny because of Penny's substandard wages; 1 that the Respondent's area contract called for $3.55 per hour with time and one-half for all overtime; 2 that "98 percent of the major contractors" in the Lawrence area abided by this agreement insofar as wages, hours, and working conditions were con- cerned; and that he had never contacted Stanley Penny or any of Penny's employees for organizational purposes. The record establishes that the Respondent is not currently certified as the collec- tive-bargaining representative of any employees either of Penny or of Ready-Mix and has not been so certified at any time material herein; and that no "petition under Section 9(c) of the Act has been filed within a reasonable period of time not to exceed 30 days from the commencement of said picketing." The Respondent con- cedes that the picketing lasted over a period of more than 30 days and that "there were interruptions of services and deliveries during the time when the picketing was going on." In his brief the General Counsel argues that the Respondent's contention that the picketing was "informational" is a "sham." In support thereof, he points out that the Respondent even at the time of the hearing herein did not know what Penny's wage rate was for cement finishers, and contends that Carr's statements to Stanley Penny during their conversation on November 29 show the picketing to have had "an organizational object, or a recognitional object, or a bargaining object." I disagree. Although it is true that the record discloses that the Respondent did not know the specific wage rates paid by Penny to its cement finishers, it is undisputed that the Respondent had complaints from contractors to the effect that they could not compete with Penny in bidding on jobs because it was paying "substandard wages." In my opinion, this evidence suffices to support the Respondent's contention that its motivation was informational. Acting on this information and on Carr's report 1 Theodore Knob, a contractor, testified, that he abided by the Respondent' s wages, hours, and working conditions , and that he complained a number of times to Carr that because of Penny's "cheap" bids on the jobs the "union" contractors had "to work for nothing." The parties stipulated as follows: 1. Jack Rogers was employed by the Penny Construction Company, Inc, from Janu- ary 1, 1962, through March 30, 1963 2 Jack Rogers performed work on the construction project commonly known as the "Kraft job" between the periods of November 29, 1962, and January 7, 1963 3 That his duties on the "Kraft job" included: setting concrete forms, grading work, clean-up work, hand shoveling sand, spreading sand, working concrete and various other labor duties, and cement finishing 4 That during the period January 1, 1962, through December 31, 1962, his gross annual income was $5,108 41 , that his average weekly earnings was $99.34; that his average hourly rate was $1803/2 per hour based on a total of 2,5291/ hours worked. 5 That during the period of January 1, 1962, through March 30, 1963, Jack Rogers' gross income was $1,362 19 , that his average hourly rate was $2 00 an hour based on 6801/ hours worked; that his average weekly earnings was $104 78. 6. That Penny Construction Company, Inc, had several other employees working on the "Kraft job" who on occasion performed cement finishing duties but the majority of their time was spent performing duties other than cement finishing. 7. That the aforementioned average hourly rates include time and a half for over 44 hours worked in any one week and an annual bonus paid at the end of the calendar year. 1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the effect that he thought it "useless" to contact Penny or to try to organize its employees, the executive board of the Respondent decided to picket with an "infor- mation type . substandard wage banner" in order to protect its wage scale and to "support fair contractors ." While the evidence concerning the special meeting of the executive board is self-serving, nevertheless the picket sign itself and the Re- spondent's conduct during the picketing further support the Respondent's contention as to its motive. The picket sign was carried in such a way that its legend faced away from the Kraft job. There is no evidence that the Respondent, in conversation or through its picket line, demanded recognition from Penny , claimed to represent its employees, or attempted to organize them. As for the conversation between Stanley Penny and Carr, it is to be noted that Penny, without giving Carr the opportunity to explain the object of the picketing, asked him if he wanted "to get together with [him] about a contract." Under the circumstances, the fact that Carr replied that he would "like" to get Penny's cement finishers "in our organization" and to discuss a contract covering them, standing alone, does not warrant the inference that the Respondent's object in the picketing was that of "forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees , or forcing or requiring the em- ployees . to accept or select such labor organization as their collective -bargaining representatives"-the conduct proscribed by Section 8 (b) (7). On all of the facts, therefore, I conclude that the purpose of the picketing, as the sign indicated, was to advise the public that Penny was "breaking down [the Respondent's] wage scale and working conditions ," and thereby to protect its area standards. Since the Respondent's picketing did not have a recognitional or organizational objective, I find that it did not violate the Act even though the picketing interfered with deliveries and services.3 RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. 3 Houston Building and Construction Trades Council ( Claude Everett Construction Com- pany ), 136 NLRB 321 ; Local 107, International Hod Carriers, Building and Common Laborers' Union of America, AFL-CIO; and Northwest Arkansas Building Trades Council, AFL-CIO ( Texarkana Construction Company ), 138 NLRB 102. Westinghouse Electric Corporation and Federation of Westing- house Independent Salaried Unions, Petitioner . Case No. 22- RC-92091. October 31, 1963 DECISION AND DIRECTION OF ELECTION . Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hearing Officer Earl S. Aronson. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. Upon the entire record, in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 144 NLRB No. 129.