Local Union No. 542-A, -B, -C, International Union of Operating Engineers

KAMINSKI BROTHERS , INC. 553 CONCLUSION OF LAW Respondents have engaged in no conduct violative of Section 8(a)(5) and (1) of the Act. RECOMMENDED ORDER The complaint should be, and hereby is, dismissed. Local Union No. 542-A, -B, -C, International Union of Operating Engineers, AFL-CIO [Kaminski Brothers, Inc.] and District 50, United Mine Workers of America. Case No. 4-CP-69. May 12, 1965 DECISION AND ORDER On a charge filed March 24,1964, by District 50, United Mine Work- ers of America (referred to herein as District 50), the General Coun- sel for the National Labor Relations Board by the Regional Director for Region 4 issued a complaint and notice of hearing on May 11, 1964, against Local Union No: 542-A,-B,-C, International Union of Operating Engineers, AFL-CIO, herein referred to as Respondent or Local 542, alleging that Respondent had engaged in and was engag- ing in unfair labor practices affecting commerce within the meaning of Section 8(b) (7) (C) of the National Labor Relations Act, as amended. Copies of the complaint and notice of hearing were there- after duly served upon the Respondent. The Respondent filed its answer on May 26, 1964. A hearing was held on June 17, 1964. Thereafter, on January 29, 1965, Respondent, District 50, and the General Counsel of the Board entered into a stipulation in which the parties agreed that the formal papers, the exhibits, and the transcript of testimony in the matter before the United States District Court for the Middle District of Pennsylvania, entitled "Bernard Samoff, Regional Director for the Fourth Region of the National Labor Relations Board, Petitioner, and Local Union No. 542-A,-B,-C, International Union of Operating En- gineers, AFL-CIO, Respondent," Civil No. 8460, together with briefs filed with Trial Examiner, shall constitute the entire record in the case. The parties waived the making of findings of fact and conclu- sions of law by a Trial Examiner and the issuance of a Trial Exam- iner's Decision and submitted the case to the Board for decision. By an order dated February 4, 1965, the Board ordered that the stipulation be approved and made a part of the record herein, and fur- ther ordered the proceeding transferred to and continued before the Board for the purpose of making findings of fact and conclusions of law, and for the issuance of a Decision and Order. 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 [Members Fanning, Brown, and Jenkins]. 152 NLRB No. 54. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES INVOLVED Kaminski Brothers, Inc., is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the Commonwealth of Pennsylvania, and maintains its -principal office and place of business at Avoca, Pennsylvania. At all times material herein, it has been engaged in strip mining of coal and in highway construction. During the past year, Kaminski Brothers, in the course and conduct of its business operations, purchased goods and materials valued in excess of $50,000 from firms located in Penn- sylvania, which firms had received such goods and materials directly from States other than Pennsylvania. At all times material herein, Kaminski has been the prime contractor in the construction of a portion of United States Interstate Highway No. 80 located in Monroe County, Pennsylvania, pursuant to a contract in an amount in excess of $3 mil- lion awarded to Kaminski Brothers by the Pennsylvania Department of -Highways. In view of the foregoing facts and on the record as a whole, we find that Kaminski Brothers, Inc., is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED Local Union No. 542-A,-B,-C, International Union of Operating Engineers, AFL-CIO, and District 50, United Mine Workers of America, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Facts The facts are not materially in dispute. Kaminski Brothers, Inc., was incorporated in 1949 and, until recently, was primarily engaged in strip mining of coal. Kaminski Construction Company, a related company, was incorporated in 1962. Both corporations are commonly controlled, have the same officers, and share common offices. On April 10, 1962, Kaminski Construction entered into a contract with Local 542 covering all operating engineers engaged in highway work performed in 29 counties of eastern Pennsylvania, including Monroe County. The contract's expiration date was December 31, -1963. However, an automatic renewal clause provided, inter alia, that "This agreement shall continue from year to year unless notice to ter- minate or to effect a change ... is given in writing 90 days prior to expiration." The only work performed by Kaminski Construction was as a subcontractor on two highway construction jobs, the latter having KAMINSKI BROTHERS, INC. 555 been completed in July 1963. Thereafter, Kaminski Construction had no employees on its payroll. On September 12, 1963, Local 542 wrote a letter to Kaminski Construction citing the automatic renewal clause of the contract and stating that it desired to meet "for the purpose of discussing the terms and conditions of a new agreement to replace the above agreement which expires on December 31, 1963." Kaminski Construction made no reply to the letter. In November 1963, Kamin- ski Construction requested the Operating Engineers' welfare and pen- sion fund to "please discontinue mailing monthly reports because we are not active with the Engineers at the present time." The record does not indicate that Local 542 made any further effort to communicate with Kaminski Construction until March 1964. Prior to 1964, Kaminski Brothers, the older company, had been occupied exclusively in strip mining and its employees so engaged were and still are represented by District 1 of the United Mine Work- wers. On January 24, 1964, Kaminski Brothers expanded its operations to include highway construction work when it bid for, and was subse- quently awarded, the prime contract on the construction of 4.6 miles of highway in Monroe County, Pennsylvania. Uncontroverted testi- mony by John Kaminski, the president of both corporations, indicated that Kaminski Brothers, rather than Kaminski Construction, bid for the contract because the former owned most of the equipment and because Kaminski Construction was too small to bid or obtain sufficient bonding on a job of that size (approximately $3,268,000). Shortly thereafter, John Kaminski was approached by Alfred Cherney, a representative of District 50, who stated that lie had learned of Kaminski Brothers' low bid on the job and asked the Company to sign a contract with District 50 as representative of its highway work- ers. On February 19, following several meetings between Cherney and Kaminski's attorney, Kaminski signed an authorization for the Penn- sylvania Heavy and Highway Contractors' Bargaining Committee to bargain for Kaminski Brothers and an agreement to be bound by the then current contract between District 50 and that committee. On March 5, 1964, Frank Priscopo, Local 542's business representa- tive, contacted Kaminski Brothers and arranged to meet with John Kaminski on March 11. On March 9, Kaminski Brothers commenced work on the highway job using seven or eight employees who had been transferred from the strip mining operation.' At the March 11 meet- ing Priscopo demanded that Kaminski Brothers sign a contract with Local 542. Kaminski replied that Local 542 was too late since he had already entered into a contract with District 50. Priscopo stated that he did not know that there was more than one Kaminski company and 'Kaminski Brothers subsequently hired additional employees for the job and at the time of the hearing was using about 16 men. John Kaminski anticipated that some 50 to 75 employees would eventually be required when the job was in full operation. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, had he been aware of this, he would have signed up all the com- panies, apparently referring to the earlier contract with Kaminski Construction. The following day, March 12, Local 542 began picketing the office and garage occupied by the Kaminski corporations. The signs read "Kaminski Brothers and Kaminski Construction Co. Unfair to Local 542, Operating Engineers." In an attempt to settle the matter, a meet- ing was arranged between Priscopo and Kaminski's attorney at which Priscopo again demanded that Kaminski sign a contract with Local 542. The charge herein was filed on March 24, 1964. On March 25 the picketing was extended to the road construction site. On or about April 15 or 20 the wording on the picket signs was changed to read "Kaminski Refuses to Renew Contract with Operating Engineers and Has Signed Contract with District 50 to Break Engineers' Picket Line. District 50 Is Taking Jobs From Operating Engineers and Working With Employer Against Trade Union Movement." On five occasions drivers for various suppliers or customers refused to deliver materials or otherwise cross the picket line at Kaminski's offices. In addition, drivers for another supplier refused to deliver ready-mix concrete required for the erection of a bridge at the con- struction site. All picketing continued until it was enjoined on May 8. Contentions of the Parties General Counsel asserts that Respondent's contract with Kaminski Construction Co. had expired as a result of Local 542's letter of inten- tion under the renewal clause, and that, in any event, the contract was with Kaminski Construction Co. and not Kaminski Brothers. Gen- eral Counsel urges that the evidence demonstrates that the primary object of the picketing was to force Kaminski Brothers to sign a con- tract with Local 542, and that the picketing therefore violated Section 8 (b) (7) (C). General Counsel argues further that Respondent may not claim the benefits of the publicity proviso of Section 8(b) (7) (C) since the signs failed to "truthfully advise the public" and were dis- played at locations far removed from the public. Finally, General Counsel asserts that the picketing is illegal in any case since its effect was to induce drivers for suppliers not to make deliveries or otherwise perform services relating to Kaminski. Respondent contends that its letter to Kaminski Construction Co. was only an expression of an intention to renew or extend the old con- tract and did not serve to terminate the relationship with the Employer. Respondent argues further that the contract remained in effect because Kaminski Construction failed to comply with the Section 8(d) requirements for its effective termination and that, in this case, even termination of the contract itself would be insufficient to sever the "relationship" which had been built up between the parties during the KAMINSKI BROTHERS, INC. 557 contract term. Although Respondent does not impugn Kaminski's motives in setting up multiple corporations , it nevertheless concludes that Kaminski Construction and Kaminski Brothers are a single employer for the purposes of Section 8(b) (7) (C). Thus, Respond- ent's argument continues, since it was already under an existing con- tract with Kaminski Bros ., it was not picketing for the purposes pro- scribed by Section 8 (b) (7) (C). Respondent alternatively claims that its activity is protected under the publicity proviso of 8 (b) (7) (C). Respondent also accuses Kaminski Brothers of violating Section 8(a) (1), (2), (3), and ( 5) and 8 ( d),2 and of engaging in a conspiracy with District 50 in violation of the Clayton Act. Conclusion Upon the basis of the foregoing evidence, we find that the Respond- cnt carried on picketing for the proscribed object of forcing or requir- ing Kaminski Brothers to recognize or bargain with it as representa- tive of its employees. The picketing commenced the day after Respond- ent's agent demanded a contract from Kaminski Bros.; was suspended only during the period that Kaminski's attorney met with Priscopo, who repeated his demand; and was resumed when Kaminski again refused to sign. In addition, Respondent's placards, which appeared after the middle of April, specifically claimed that the Union's com- plaint was the failure to renew the contract. Respondent's assertion that the picketing was for the purpose of enforcing the contract of April 10, 1962, fails to withstand scrutiny. We are satisfied that Respondent's letter of September 12, 1963, was intended to and, in fact, did serve to foreclose the possibility that the old contract would renew itself. The letter specifically referred to the contract's renewal clause and asked for discussions for the purpose of replacing the expiring contract. A collective-bargaining contract, under these circumstances, is not accorded perpetual life, regardless of action or inaction by the parties. By the same token, the fact that Respondent had enjoyed a contractual relationship with Kaminski Construction for nearly 2 years did not grant it any vested right in the preservation of that relationship beyond its agreed termination date .3 Moreover, even assuming, arguendo, that Respondent's contract with Kaminski Construction survived its termination date, the record offers 2 Charges by Respondent alleging these violations were filed April 24 as Case No. 4-CA- 3325. They were dismissed as without merit by the Regional Director for Region 4 on May 1. and his ruling was sustained by the General Counsel on June 11. Under the circumstances , we will not reconsider the General Counsel's disposition of the merits of these charges . Cf. International Hod Carriers ; Building and Common Laborers' Union of America, Local 840, AFL-CIO ( Charles A. Bhnne, d/b/a C. A. Blinne Construction Company), 135 NLRB 1153. 3 See Local 642, International Union of Operating Engineers, AFL-CIO ( R. S Noonan, Inc ), 142 NLRB 1132, enfd. 331 F. 2d 99 (C.A. 3), 1964 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no evidence to indicate that the contract would- have had any binding effect on Kaminski Bros. As set forth above, Kaminski Brothers was a separate corporation, incorporated several years before Kaminski Construction. Until the present case, Kaminski Brothers was solely occupied in strip mining and had a contract with District 1 of the United Mine Workers covering its employees so engaged. Respondent does not assert, nor does any evidence appear in the record to indicate, that Kaminski Brothers was chosen to bid on the highway construction job for any reasons other than those asserted by John Kaminski.4 Likewise, there is no evidence to support Respondent's contention that the picketing was designed to advise the public truthfully that Kaminski neither employed their members nor had a contract with Local 542. On the contrary, the signs exhibited from the start of the picketing until the middle of April declared nothing other than the fact that Kaminski corporations were "unfair." Those signs which were subsequently carried accused the companies of a conspiracy against Respondents and the trade union movement. In addition, the signs contained an untrue assertion that Kaminski Brothers signed its contract with District 50 for the purposes of breaking the Respond- ent's picket line which had, in fact, been established after the execu- tion of that contract, and that Kaminski Brothers refused to renew its contract with Local 542, although no such contract had ever existed. Notwithstanding the content of the picket signs, it is clear that the picketing was not designed for publicity purposes. The picketing took place at two locations, in front of Kaminski's gate, which was situated down a secondary road some distance from the main highway, and in a sparsely settled area near the construction project itself. Evidence indicated that the road leading to the Kaminski gate passed a small settlement with only a few houses, and the road near the construction site was traveled by few vehicles not directly involved in the work. In neither case is it clear that the general public would be able to observe the signs. In one instance pickets called to an employee to leave the job. Under these circumstances we find that the purpose of the picket- ing was not to advise the public, but, rather to notify Kaminski's employees and those employees of other employers dealing with Ka- minski of the existence of the dispute and to induce them to either leave their work or to avoid performing services on behalf of Kaminski.,' 4 Member Fanning does not agree on the facts of this case that Kaminski Brothers and Kaminski Construction, although separate corporations, are necessarily separate em- ployers under this statute. He therefore does not rely upon the assumption that Re- spondent's contract with Kaminski Construction may have survived its termination date in finding that Respondent violated Section 8(b) (7) (C). 5 Hoisting and Portable Engineers Local Union 101, etc. (Sherwood Construction Com- pany, Inc. ), 140 NLRB 1175. KAMINSKI BROTHERS, INC. - . 559 We find, accordingly, that Respondent's picketing violated' Section 8(b) (7) (C) of the Act. IV. THE REMEDY Having found that Respondent engaged in certain unfair labor prac- tices, we shall order that it cease and desist therefrom and that it take. certain affirmative action of the type conventionally ordered in such- cases, as provided in the Order below, necessary to remedy and remove the effects of the unfair labor practices and to effectuate the purposes of the Act. CONCLUSIONS Or LAW 1. Kaminski Brothers, Inc., is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Respondents are a labor organization within the meaning of See-- tion 2 (5) of the Act. 3. By picketing Kaminski Brothers, Inc., from March 12 to May 8,. 1964, with an object of forcing and requiring Kaminski Brothers, Inc., to bargain with Respondent, without being currently certified as the representative of Kaminski Brothers employees and without a petition under Section 9(c) being filed within a reasonable period of time, Respondent engaged in unfair labor practices within the meaning of Section 8 (b) (7) (C) 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 Respondent, Local Union No. 542-A,-B,-C, International Union of Operating Engineers, AFL-CIO, its officers, agents, and representa- tives, shall : 1. Cease and desist from picketing or causing to be picketed, or- threatening to picket or cause to be picketed, Kaminski Brothers, Inc., where an object thereof is forcing or requiring said Employer to rec- ognize or bargain with it as the representative of its employees in vio- lation of Section 8 (b) (7) (C) of the Act. 2. Take the following affirmative action which the Board finds wilt effectuate the policies of the Act : (a) Post at its business offices and meeting halls in Avola, Pennsyl- vania, copies of the attached notice marked "Appendix." 6 Copies of 8In the event that this Order is enforced by a decree of a United States Court of- Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order " 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said notice, to be furnished by the Regional Director for Region 4, shall, after having been duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspic- uous places, including all places where notices to members are custom- arily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Transmit to the Regional Director for Region 4 signed copies of said notice for posting by Kaminski Brothers, Inc., the Employer willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 4, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL UNION No. 542-A,-B,-C, INTERNA- TIONAL UNION OF OPERATING ENGINEERS, AFL-CIO , AND TO ALL EMPLOYEES OF KAMINSKI BROTHERS, INC. 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 notify you that : WE WILL NOT under conditions prohibited by Section 8 (b) (7) (C) of the Act picket or cause to be picketed or threaten to picket or caused to be picketed Kaminski Brothers, Inc., where an object thereof is to force or require the said Employer to recognize or bargain with us as the representative of its employees. LOCAL UNION No. 542-A,-B,-C, INTERNA- TIONAL UNION OF OPERATING ENGINEERS, 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, 1700 Bankers Security Building, Philadelphia, Pennsylvania, Telephone No. 735-2612, if they have any question concerning this notice or compliance with its provisions.