Sprinklers Fitters Union Local No. 709, Etc.

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jurisdictional grounds. Our Rules and Regulations governing Advis- ory Opinion procedures were formulated after the Landrum-Griffin amendments of 1959 to inform State courts and agencies whether the Board in given circumstances would assert jurisdiction under its dis- cretionary commerce standards and thus aid them in determining their own jurisdiction.' But, where as here, in a statutory representation proceeding (Case No. 2-RM-1376), the Board's denial of the appeal has administratively affirmed the Regional Director's dismissal on jurisdictional grounds and has, in effect, determined the same juris- dictional question underlying the petition for Advisory Opinion herein, no practical or useful purpose would be served by having the Board issue an Advisory Opinion; and the underlying purpose of the Advisory Opinion procedures would be better served, without neces- sary duplication and possible confusion, if this petition for Advisory Opinion were dismissed 2 For these reasons, we shall dismiss the Petition for Advisory Opinion herein. [The Board dismissed, for the reasons set out above, the Petition for Advisory Opinion.] 1 Maitre'D Restaurant, 145 NLRB 1161. 2 See Maitre'D Restaurant, supra. Sprinklers Fitters Union Local No. 709 , affiliated with The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and A-1 Mechanical Contracting Co. Case No. 21-CC-749. May 6, 1965 DECISION AND ORDER Upon a charge filed on April 24, 1964, and a first amended charge filed on July 1, 1964, by A-1 Mechanical Contracting Co., the General Counsel of the National Labor Relations Board, by the Regional Direc- tor for Region 21, issued a complaint dated July 20, 1964, against Sprinklers Fitters Union Local No. 709, affiliated with The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, herein called Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(b) (4) (i), (ii) (A) and (B) of the National Labor Relations Act, as amended. Copies of the complaint and notice of hearing were duly served upon the parties. The Respondent filed an answer denying the commission of the alleged unfair labor practices. On September 21, 1964, the parties filed a motion to transfer proceed- ings to the Board together with a stipulation of facts. The parties 152 NLRB No. 45. SPRINKLERS FITTERS UNION LOCAL NO. 709, ETC. 441 agreed that the formal papers and stipulation of facts, including the exhibits attached thereto, constitute the entire record in this case, and that no oral testimony is necessary or desired by any of the parties. The parties waived a hearing before a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of a Trial Examiner's Decision, and submitted the case for findings of fact, conclusions of law, and an order directly by the Board. The parties waived oral argument and requested the Board to set a time for the filing of briefs. By Order dated September 28, 1964, the Board granted the motion of the parties and made the stipulation a part of the record herein. Pursuant to such motion, the Board transferred the proceeding to, and continued it before, the Board. The Board fixed a time for the filing of briefs and thereafter the General Counsel and the Respondent filed briefs. Upon the basis of the aforesaid stipulation and the entire record in the case, including the charge, the complaint and answer, and the briefs, the Board 1 makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES INVOLVED At all times material herein, A-1 Mechanical Contracting Co., herein called A-1, has been engaged in the Southern California area in installing automatic fire sprinkler systems at construction projects of the general contractors named below. In the course and conduct of its business operations, for these and other general contractors, A-1 annually purchases and receives goods, materials, and supplies origi- nating outside the State of California valued at substantial amounts. At all times material herein, Prestige Development Company, herein called Prestige; R.E.A. Enterprises, herein called R.E.A.; Pais Broth- ers Construction, herein called Pais; and St. Andrews Apartments, a joint venture, herein called St. Andrews; have been engaged at Los Angeles, California, as general contractors in the building and con- struction industry, and as owner-builders of various construction proj- ects in the Southern California area. At all times material herein, International Investment & Construc- tion Corporation, herein called International, has been engaged at Santa Monica, California, as a general contractor in the building and construction industry, and as a contractor on a construction project in Santa Monica, California. For use at their respective projects at which A-1 installed sprinkler systems, Prestige, R.E.A., International, Pais, and St. Andrews have, "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 Brown and Jenkins]. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the aggregate, purchased and received during an appropriate 12- month period goods, materials, and supplies, valued in excess of $507- 000 which were either shipped directly from outside the State of Cali- fornia to said projects or were obtained from concerns in California which obtained such.goods, materials, and supplies directly from points outside the State of California. Grinnell Company of the Pacific is a California corporation with its principal place of business in Los Angeles, California. It is A-1's major supplier of pipe. Grinnell annually purchases goods valued in excess of $50,000 a year from points outside the State of California. The parties stipulated, and we find, that A-1, Prestige, R.E.A., Inter- national, Pais, and St. Andrews are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We also find that Grin- nell is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction? H. THE LABOR ORGANIZATION INVOLVED Sprinklers Fitters Union No. 709, affiliated with The United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES At all times material herein, the Respondent has demanded that A-1 enter into a collective-bargaining agreement with it which contains, inter alia, the following clauses : SECTION 2 JURISDICTION OF WORK 3. If any of the work described in paragraph 2 3 of this section on a construction project is performed by other than employees covered by this Agreement, the Union shall be free to withdraw employees covered by this Agreement from the individual project until the work assignments have been corrected. 4. Any Contractor who sub-contracts work covered by this Agreement shall sublet said work to a contractor signatory to this Agreement. A-1 has refused to accede to Respondent's demands, and is not a sig- natory to a collective-bargaining agreement with the Respondent. 2 Madison Building & Construction Trades Council, et al. (Wallace Hildebrant & John Kiefer, d/b/a H & K Lathing Co., et al ), 134 NLRB 517. s Paragraph 2 of section 2 of the agreement prow ides, in substance, that the work of sprinkler fitter and /or apprentice shall consist of the installation of fire-protection and fire-control systems. SPRINKLERS FITTERS UNION LOCAL NO. 709, ETC. 443 On or about April 9, 1964, Jack T. Lyons, an agent of the Respond- ent, appeared at the Prestige project in Sherman Oaks, California, and told Raymond Lankoford, Prestige's project superintendent, that A-1, which was then working at the project, was not a union shop and he therefore would have to put a picket on the job unless Lankoford removed A-i from the job . At approximately noon, one of the lathing employees then working at the jobsite told Henry Corey an employee of A-1, but not a member of Respondent , that he had been informed the job was going to be picketed . At approximately 2 p.m., while the lathers and other employees were still working on the project, Lyons began picketing the project with a sign which stated : "A-1 Mechanical unfair to Local 709 , nonunion." Lankoford asked Corey and Pink Turner, another A-1 employee who was also not a member of Respond- ent, to leave the job immediately . At the request of Prestige , A-1 with- drew from the project until April 23,1964. On that date , A-1 returned to the project to complete its work, and Lyons informed Prestige he was going to picket the job . Jona Goldrich, president of Prestige, advised Lewis, the sole proprietor of A-1, by telegram not to continue at the project until A-1 had "clearance" from the Respondent. On April 24, Lyons appeared at the project and told Goldrich that Lewis did not have a contract and was nonunion ; that if A-1 worked on the job he was going to picket the job; and that he would picket all the jobs that Lewis worked on. Goldrich requested Lewis and his men to leave the project. By letter dated that same day, Goldrich confirmed his telegraphic request of April 23, that A-1 stop work until the "dif- ferences with the Union have been settled." In February 1964 Lyons appeared at R.E .A. project on North Bron- son Avenue in Los Angeles , California, and told Robert Reinig, the R.E.A. project superintendent, that R.E.A. should not use A-i, which was then working at the project , and that the project would be picketed if he used A-l. In February 1964 Lyons appeared at the International project at Santa Monica, California , and told Floyd Stinson , International's superintendent at the project, that Lewis and his men, who were then working at the project, were not union members and had not signed with the Respondent ; that plumbers on the project would not work with the nonunion fitters; and that a picket line would be put on the project if Stinson continued to use A-1. On or about April 20, 1964, Lyons appeared at the Pais project in Santa Monica, California , and told Al and John Pais that A-1, which was then working at the project, was nonunion and had nonunion men; that he was going to call and have a picket at the job ; and that to pre- vent the picket they would have to pull A-1 off the job . Lyons also approached a truckdriver employed by the Grinnell Company of the Pacific who was making delivery to the project for Grinnell. Lyons 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD identified himself and told the driver not to unload the truck. Lewis and his employees then unloaded it. On April 22, 1964, Lyons again told Al Pais the project would be picketed. The Pais brothers then asked the A-1 employees to leave the project. Corey was given a note ,signed by John Pais which states : "I have requested Hank to pull off the job on account of Union pickets." On or about April 10, 1964, Lyons appeared at the St. Andrews proj- ect in Los Angeles, California, and told Joseph Glikman, a partner in the St. Andrews joint venture, that A-1 did not have a contract with any union and he was not going to let A-1 work on the building. Lyons told Glikman that he would throw a picket line around the building if Glikman permitted Lewis to work on it, because A-1 did not have a contract with the Union. Lyons further told Glikman he better get rid of A-1 and that there were 14 other builders in the same position. ,On or about April 20, 1964, Lyons again appeared at the project, and told Glikman he had just come from the San Fernando Valley where he had closed down Goldrich's Prestige project. Lyons said the proj- ect would be picketed if Lewis' men were found in the building. It is not disputed, and we find, that by picketing the Prestige project and by inducing Grinnell's driver at the Pais project not to unload its truck, the Respondent induced and encouraged individuals employed by Prestige, Grinnell, and other persons, to engage in a strike within the meaning of Section 8(b) (4) (i) of the Act; and by threatening to picket the projects as described above for doing business with A-1, the Respondent threatened, coerced, and restrained Prestige, International, Pais, R.E.A., and St. Andrews, all of whom are persons engaged in commerce, within the meaning of Section 8 (b) (4) (ii). The remaining issues are whether such conduct by the Respondent was for an object proscribed by subsections (A) and (B) of Section 8(b) (4). Section 8(b) (4) (A) prohibits such conduct where an object thereof is forcing or requiring an employer to enter into any agreement pro- hibited by Section 8(e); i.e., an agreement in which an employer ceases or refrains, or agrees to cease or refrain, from doing business with any other person. The parties herein stipulated, and we find, that an object of Respondent's conduct was to force or require A-1 to enter into the agreement referred to above, and that such agreement, if entered into, would require A-1 to cease or refrain from doing business with other persons not signatory to said agreement. It is clear, there- fore, that the agreement is one which, in ordinary circumstances, is prohibited by Section 8 (e) of the Act. The Respondent contends, how- ever, that both clause 3 and 4 of section 2 of the agreement, the allegedly unlawful clauses, are protected by the construction industry proviso of Section 8(e), which provides as follows: Nothing in [Section 8 (e) ] shall apply to an agreement between a labor organization and an employer in the construction industry SPRINKLERS FITTERS UNION LOCAL NO. 709, ETC. 445 it relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work. In clause 3, the employer agrees, in substance, that his employees may refuse at the behest of the Respondent to work on any construction project where any sprinkler-fitter system installation work is per- formed by employees not covered by the agreement. Thus, this clause provides that its prohibition against subcontracting to nonsignatory firms may be enforced by economic action, which is contrary to Sec- tion 8 (b) (4) (B) of the Act .4 It is therefore not protected by the pro- viso to Section 8(e).5 In these circumstances, the Respondent's con- duct as set forth above, insofar as it was for the object of forcing A-1 to agree to clause 3, constituted a violation of Section 8(b) (4) (i) and (ii) (A) of the Act. Clause 4 provides, in effect, that A-1 will not subcontract work cov- ered by the agreement to any contractor who is not a signatory to the agreement. Clause 2 describes the work covered by the agreement as the installation of fire-protection and fire-control systems. Such work is done only at the site of construction, alteration, or repair of build- ings, structures, or other work, as contemplated by the proviso. More- over, insofar as the stipulated facts show, A-1 is engaged only in installing automatic fire sprinkler systems at construction projects. Clause 4 clearly, therefore, constitutes an agreement between parties in the construction industry and relates to the subcontracting of work at the jobsite. Moreover, unlike clause 3, clause 4 does not provide for its own enforcement by the use of economic force prohibited by Section 8(b) (4) (B). In these circumstances, we find that clause 4 is protected by the proviso and is therefore not prohibited by Section 8 (e). Insofar as the Respondent's picketing and threats to picket had as an object forcing A-1 to enter into clause 4, therefore, such conduct was not violative of Section 8 (b) (4) (i) or (ii) (A) of the Act .6 The parties stipulated, and we find, that an object of Respondent's conduct was to force or require Prestige, R.E.A., International, Pais, St. Andrews, and other persons who were neutral contractors to cease doing business with A-1, an existing and identified nonunion subcon- tractor. In these circumstances, we find that by such picketing and threatening to picket for the aforesaid object, the Respondent violated Section 8(b) (4) (i) and (ii) (B) of the Act.7 I Northeastern Indiana Building and Construction Trades Council ( Centlivre Village Apartments), 148 NLRB 854. 5 Muskegon Bricklayers anion #5, etc . ( Greater Muskegon General Contractors Asso. clation). 152 NLRB 360. 9 Northeastern Indiana Building and Construction Trades Council ( Centlivre Village: Apartments ), supra. 4 Cf Northeastern Indiana Building and Construction Trades Council ( Centlivre Village Apartments ), supra. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occur- ring in connection with the operations of the companies herein involved, have a close, intimate, and substantial relation to trade, traf- fic, 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 activities which violate Section 8 (b) (4) (i), (ii) (A) and (B) of the Act, we shall order it to cease and desist therefrom and to take certain affirmative action to effectuate the purposes of the Act. Upon the basis of the foregoing facts and the entire record in this case, the Board makes the following: CONCLUSIONS OF LAW 1. A-1 Mechanical Contracting Co., Prestige Development Com- pany, R.E.A. Enterprises, International Investment & Construction Corporation, Pais Brothers Construction, St. Andrews Apartments, and Grinnell Company of the Pacific are each engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2 (5) of the Act. 3. By inducing and encouraging employees of Prestige Develop- ment Company and Grinnell Company of the Pacific to engage in strikes or refusals in the course of their employment to perform serv- ices, and by threatening, coercing, and restraining those companies, R.E.A. Enterprises, International Investment & Construction Corpo- ration, Pais Brothers Construction, and St. Andrews Apartments, to cease doing business with A-1 Mechanical Contracting Co., with an object of forcing and requiring A-1 Mechanical Contracting Co., to enter into an agreement which is prohibited by Section 8(e) of the Act, and with the further object of forcing and requiring those com- panies to cease doing business with A-1 Mechanical Contracting Co., the Respondent has engaged in unfair labor practices within the mean- ing of Section 8(b) (4) (i), (ii) (A) and (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 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the SPRINKLERS FITTERS UNION LOCAL NO. 709, ETC. 447 Respondent, Sprinklers Fitters Union Local No. 709, affiliated with The United Association of Journeymen and Apprentices of the Plumb- ing and Pipefitting Industry of the United States and Canada, its offi- cers, agents, and representatives, shall : 1. Cease and desist from inducing or encouraging employees of Pres- tige Development Company, Grinnell Company of the Pacific, or any other employer engaged in commerce or an industry affecting com- merce, to engage in a strike or refusal in the course of their employ- ment to use, transport, or otherwise handle or work on any goods, arti- cles, materials, or commodities, or to perform any services; or from threatening, coercing, or restraining those companies, R.E.A. Enter- prises, International Investment & Construction Corporation, Pais Brothers Construction, St. Andrews Apartments, or any other person engaged in commerce or in an industry affecting commerce, by picket- ing, or threats of picketing, where an object thereof is either to force or require any person to enter into an agreement which is prohibited by Section 8(e) of the Act, or to force or require any person to cease doing business with A-1 Mechanical Contracting Co. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Post at the Respondent's business offices and meeting halls in Los Angeles, California, copies of the attached notice marked "Appen- dix." 8 Copies of said notice, to be furnished by the Regional Director for Region 21, shall, after being duly signed by the authorized repre- sentative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consec- utive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for Region 21 for posting by Prestige Development Company, Grinnell Company of the Pacific, International Investment & Con- struction Corporation, Pais Brother Construction, St. Andrews Apart- ments, and A-1 Mechanical Contracting Co., the companies willing, at all places where notices of said companies to their employees are cus- tomarily posted. (c) Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply herewith. 8In the event that this Order is enforced by a decree of a United States Gmrt 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." 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the complaint herein, insofar as it alleges violations not found, is hereby dismissed. APPENDIX NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES OF PRESTIGE DEVEL- OPMENT COMPANY, GRINNELL COMPANY OF THE PACIFIC, INTERNA- TIONAL INVESTMENT & CONSTRUCTION CORPORATION, PAIS BROTHERS CONSTRUCTION, ST. ANDREWS APARTMENTS, AND A-1 MECHANICAL. CONTRACTING CO. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby give notice that: WE WILL NOT induce or encourage employees of Prestige Devel- opment Company, Grinnell Company of the Pacific, or any other employer engaged in commerce or an industry affecting commerce, to engage in a strike or refusal in the course of their employment to use, transport, or otherwise handle or work on any goods, arti- cles, materials, or commodities or to perform any services; or threaten, coerce, or restrain Prestige Development Company, Grinnell Company of the Pacific, International Investment & Construction Corporation, Pais Brothers Construction, St. An- drews Apartments, or any other person engaged in commerce or an industry affecting commerce, by picketing or threats of picket- ing, where an object of any of the above is either to force or require any person to enter into an agreement which is prohibited by Section 8 (e) of the Act, or to force or require any person to cease doing business with A-1 Mechanical Contracting Co. SPRINKLERS FITTERS UNION LOCAL No. 709 AFFILI- ATED WITI-I THE UNITED ASSOCIATION OF JOURNEY- MEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, 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, 849 South Broadway, Los Angeles, California, Telephone No. 688-5229, if they have any questions concerning this notice or compli-- ance with its provisions.