Glaziers Local Union 1184, Painters

116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glaziers Local Union 1184 , Brotherhood of Painters , Decorators and Paperhangers of America, AFL-CIO and Tennessee Glass Company, Incorporated . Cases 26-CC-97 and 26-CC-99. April 25, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On September 28, 1966 , Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter , Respondent' and the General Counsel2 filed exceptions to the Trial Examiner's Decision and supporting briefs. The Brotherhood of Painters , Decorators and Paperhangers of America , AFL-CIO, filed an amicus curiae brief in support of Respondent, and the Charging Party filed an answering brief to the Respondent's brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision , the exceptions and briefs, and the entire record in this proceeding , and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner , as modified below. We agree with the Trial Examiner's finding of a violation herein. The wording of the letter of September 12, 1965, demonstrates that it was aimed specifically at those of its members who were independent contractors with the design and intent of restraining and coercing them through threat of disciplinary action. Indeed , Respondent by its answer to the complaint admits that an object of the letter was to force or require Wells, Weeks, Green, and White and Williams to cease doing business with Tennessee Glass. As the target of the coercion was to achieve, through such members in their capacity as independent contractors , an objective interdicted by Section 8(b)(4)(B ) of the Act, we find, contrary to Respondent's contention that it was not immunized from illegality by the proviso to Section 8(b)(1)(A) of the Act. Accordingly, we adopt the Trial Examiner's findings, conclusions , and recommenda- tions to the extent that he finds that, by sending its letter of September 12, 1965 , with the aforesaid design , to Wells, Weeks, Green, and White and Williams, threatening such persons with disci- plinary action for doing business with Tennessee Glass, and by imposing disciplinary action on Wells for doing business with Tennessee Glass, Respond- ent had violated Section 8(b)(4)(ii)(B) of the Act.3 However, we do not find that Respondent has violated Section 8(b)(4)(ii)(B) of the Act by sending the letter to its members who are not independent contractors.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Glaziers Local Union 1184, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. i Respondent's request for oral argument s hereby denied as the record, including the exceptions and briefs , adequately presents the issues and positions of the parties 2 The General Counsel excepted to the failure of the Trial Examiner to find that the action of Respondent in bringing charges against Wells under procedures set up within Respondent's organization , because Wells had aided and abetted Tennessee Glass in the processing of the unfair labor practice charges in Case 26-CC-97, constituted action violative of Sec 8(b)(4)(u)(B) To find such action violative of Sec 8(b)(4)(u)(B), it would be necessary to find that , by bringing the above charges, Respondent threatened , coerced , or restiamed Wells with the object of forcing him to cease doing business with Tennessee Glass . We do not pass on this issue , for, even if the aforesaid action of Respondent were found to be a violation of Sec 8(b)(4)(u)(B), it would in no way expand the scope of our Order Accord: Local 150 International Union of Operating Engineers, AFL-CIO, et at. (Frisch Contracting Service Company, Inc.), 149 NLRB 29, 36 9 Accord American Guild of Musical Artists, AFL-CIO and Washington Branch, American Guild of Musical Artists, AFL-CIO (National Symphony Orchestra Association), 157 NLRB 735 4 Nor do we find it necessary to express any view in this case-since we do not deem that specific issue to be now before us-as to whether absent a specific design such as herein found, a union's issuance of a "do-not-patronize " notice might run afoul of Sec 8(b)(4)(B) simply because some of the union's members may also be businessmen having actual or potential business contacts with the struck employer TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN FUNKE, Trial Examiner: Upon a charge filed in Case 26-CC-97, on September 23, 1965, by Philip M. Carden, an individual, against Glaziers Local Union 1184, Brotherhood of Painters, Decorators and Paperhangers, AFL-CIO, herein Local 1184, or the Respondent, and upon another charge filed on March 26, 1966, by Tennessee Glass Company, Incorporated, herein Tennessee, the General Counsel issued a consolidated complaint alleging Respondent violated Section 8(b)(4)(ii)(B) of the Act. 164 NLRB No. 19 GLAZIERS LOCAL UNION 1184, PAINTERS 117 Respondent denied the commission of unfair labor practices and asserted affirmative defenses.' This proceeding, with all parties represented, was heard by me at Nashville, Tennessee, on May 25, 1966. At the conclusion of the hearing the parties were given leave to file briefs. Briefs were received from the General Counsel, the Respondent, and Tennessee on July 13. Upon the entire record in this case, and from my observation of the witnesses, I make the following: I. THE BUSINESS OF THE COMPANIES INVOLVED Tennessee has its office and place of business at Nashville, Tennessee, where it is engaged in the sale, distribution, and manufacture of installation glass and related products. During a representative 12-month period Tennessee received gross revenues in excess of $500,000. During the same period it purchased goods and materials valued in excess of $50,000 directly from points outside the State of Tennessee. Gyndel E. Wells, d/b/a Pete Wells Glazing Contractor, herein Wells, is a sole proprietorship engaged in the installation of glass and related products at Nashville. Tennessee, and during a representative 12-month period purchased goods and materials in the approximate value of $30,000 from Tennessee, of which it is estimated 80 percent originated outside the State of Tennessee. Charles Weeks, d/b/a Woodbine Glass Co., herein Weeks, Doyle Green, d/b/a G.E. Glass Co., herein Green, James White and Jimmy Williams, d/b/a W & W Glass Co., herein White and Williams, are single proprietorships and a partnership engaged in the installation and glazing of glass and related products. Tennessee, Wells, Weeks, Green, and White and Williams are engaged in the building and construction industry. Respondent admits or does not deny that Tennessee, Weeks, Green, and White and Williams are engaged in commerce or an industry affecting commerce. I so find. It does not admit that Wells is engaged in commerce within the meaning of the Act. Despite the fact that the jurisdictional issue was raised with respect to Wells, little testimony was taken on the issue. From the record, however, I think it can be established that Wells was engaged in the installation of glass, as were the other proprietorships, on construction projects and I would therefore find that he was engaged in commerce within the meaning of the Act.2 It is also the policy of the Board in so- called secondary boycott situations to assert jurisdiction over secondary employers if the primary employer meets the Board's standards.3 III. THE UNFAIR LABOR PRACTICES A. The Facts 1. The September 14 letter Tennessee, together with Pittsburgh Plate Glass Co., herein Pittsburgh, and Bingswanger Glass Co., herein Bingswanger, had had contractual bargaining relationships as a multiemployer bargaining unit at Nashville with Local 1184 for a period of some years prior to October 1, 1964. On that date, which was the contract termination date, Local 1184 struck Tennessee and Bingswanger over economic issues. Local f184 had identical contracts with two smaller glazing companies, Weeks and Green, which were also struck. In March 1965,4 Local 1184 settled its strike with Bingswanger, Weeks, and Green and entered into new contracts with them.5 The dispute with Tennessee and the strike at that plant was continuing at the time of the hearing. During all times material herein and up to and including the time of hearing Charles Weeks. Doyle Green . James White, Jimmy Williams, and Gyndel Wells were members of Local 1184. On September 14, Local 1184 sent to all its members copies of a letter (G. C. Exh. 6) which read: The Executive Board meeting was held September 12th 1965. It was decided that a non-union condition has existed at Tennessee Glass Company since October 1 1964 up until now , and as we have been informed will be non-union from now on. We, the membership and Executive Board of Local Union No. 1184 except this position of Tennessee Glass Co., and are instructing our members who are in any way, form or fashion doing business with Tennessee Glass Co. or any of their Associates to stop immediately. We are saying that beginning Monday September 20th, 1965, Local Union No. 1184 will bring charges against any member found guilty of having any connection with this situation with Tennessee Glass Co. or their Associates. We are also instructing members of Local Union No. 1184 that beginning September 20th 1965 that no one will work for anyone who does not have a signed Contract. We refer this to Article 2 of our present agreement which expires March 21st 1967. Signed EXECUTIVE BOARD C. W. Russell Evert Steele Frank McMurty Jim D. Dier, Jr. 2. The case of Wells II. LABOR ORGANIZATION INVOLVED Local 1184 is a labor organization within the meaning of the Act. I At the hearing Respondent moved to amend its answer by striking from paragraph 3 the admission as to paragraph 3(d) of the complaint and by striking from paragraph 8 of its answer the words "as to Tennessee Glass Company and its allies." Both motions were granted. As to any motions by any party on which decision was reserved they are disposed of by the terms of this Decision. 2 Sheet Metal Workers International Association, Local Union Gyndel Wells testified that he entered the glazing business at Nashville on or about July 15. His home was his office and at the time of the hearing he had one employee, employed 4 or 5 months prior to the hearing. He No. 299, AFL-CIO, et al. (S.M. Kisner and Sons), 131 NLRB 1196, 1198-99 ; Chauffeurs, Teamsters & Helpers Local No. 364, et al. (The Light Co., Inc .), 121 NLRB 221. 3 Id. 4 Unless otherwise stated all dates hereinafter refer to 1965. 5 About this time White and Williams entered this business as small contractors. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had entered into a collective-bargaining contract with Local 1184 about 1 week prior to November 16 and the contract had been approved by the membership of Local 1184. When Wells started business he borrowed $200 from Tennessee, which he repaid (he also invested some $600 of his own money), at least in substantial part. While counsel for Respondent attempted to show that Tennessee paid for his tools the evidence establishes that the saw and the repairs to it were paid for by Wells. (G. C. Exh. 8-a and 8-b.) He bought his truck from Tennessee and received estimates on the cost of materials, plans, and specifications from Tennessee. Tennessee did not, however, do any fabricating or glazing work for Wells. While the General Counsel introduced no evidence on direct examination to establish that disciplinary action was taken by Local 1184 against Wells because he did business with Tennessee, counsel for Respondent on cross-examination elicited testimony which established that Wells had been tried three or four times by Local 1184 for doing business with Tennessee. In the first case he paid the fine, in the second the charges were dismissed, and on December 21 other charges were brought against him for the same offense. He was fined on this charge and his appeal to the executive board of the International was pending at the time of hearing. This summarizes the testimony which I consider relevant. B. Conclusions The only issues in the case have been summarized in the brief of the Charging Party as: 1. Where an individual is both a union member and an employing contractor, is the union generally privileged to threaten, coerce and restrain the union member by means of intra-union disciplinary procedures where an object thereof is admittedly to prevent the individual from buying his contracting materials from a struck primary employer? 2. If there is no such general privilege, has the respondent union shown a special privilege in this case by establishing, as an affirmative defense, that one of the member-contractors involved (Gyndel E. Wells, d/b/a Pete Wells Glazing Contractor) was an ally of the struck primary employer and performing struck work for such primary employer? I believe the first question must be answered in the negative and since I believe the district court judge has fully provided the reasons for this conclusion in his decision in John J. A. Reynolds, Jr., Reg. Dir. v. Glaziers Local Union 1184, Painters, etc. (Tennessee Glass Co., Inc.), an injunction proceeding brought in the U.S. District Court of Tennessee, Civil No. 4401, issued May 23, 1966, I shall quote from so much of the decision as relates to this issue. The court stated: Defendant further asserts that an injunction is not authorized for the reason that the Regional Director is seeking to interfere with the internal affairs of a labor organization. The claim here is that Wells, Weeks, Green, White and Williams are members of the defendant union, and that they are disciplined only as members. For the purpose of analyzing this claim, let us call Tennessee Glass employer "E" with Wells Glazing Contractor being employer "A", Woodbine 6 Cf Local 138, International Union of Operating Engineers AFL-CIO (Charles S Skura), 148 NLRB 679, Tawas Tube Products, Inc , 151 NLRB 46 'This defense is not asserted in Respondent 's brief His Glass Company being employer "B", C. E. Glass Company being employer "C", and W. W. Glass Company being employer "D". In the ordinary secondary boycott situation, the union orders its members not to work for employers A, B, C, or D if employers A, B, C, or D do business with employer E. The union objective is to compel employer E to resolve a dispute between the union and employer E. This type of union activity is illegal because it brings pressure to bear against employers A, B, C, and D, with whom (as in this case) the union has no dispute. It is illegal even though the union disciplines only union members, because the necessary effect of such discipline is to disrupt the business of employers A, B, C and D. Genuine Parts, 119 NLRB 1806 [3991, enforced sub nom . Truck Drivers and Helpers Local Union No. 728 v. N.L.R.B., 265 F.2d 439 (5th Cir.), cert. denied, 361 U.S. 917 (1959). In the present case, if the union were to order its members to refuse to work for employers A, B, C, or D, the order would clearly be illegal. In fact, however, the union members do not work for employers A, B, C, and D, they are employers A, B, C, and D. Thus, although this is not the typical secondary boycott case, it is arguable that the union's order is even more illegal in that it brings pressure to bear directly against employers A, B, C and D, rather than through their employees. The union contends that it is ordering the members as members, and the fact that some of the members are also contractors and employers is an irrelevant coincidence. In fact, however, the members, as members, do not do business with Tennessee Glass. They are certainly not employed by Tennessee Glass. Any business they may do with Tennessee Glass is done by them as contractors. Consequently, a union order which directs them not to do business with Tennessee Glass must be directed to their activities as contractors. It is not the fact that they are contractors which is a coincidence, but the fact that they are union members. The union is attempting to justify an otherwise illegal secondary boycott solely because the secondary employer is also a union member. The question is certainly unique, but it must be said that the petitioner has established at least reasonable cause to believe that such boycott is prohibited by the Act. Certainly, the union, by threatening Wells, Weeks, Green, and White and Williams, is threatening Pete Wells Glazing Contractor, Woodbine Glass Company, C. E. Glass Company, and W. W. Glass Company. I am in complete agreement with the court.6 As to the defense that certain contractors were not in fact coerced by this letter,' I find such a defense to be without merit. The issue is not the fact of coercion but whether the letter reasonably tended to coerce the contractors. A reading of the letter demonstrates conclusively that it was intended to coerce the independent contractors into a cessation of business with Tennessee by threatening the contractors herein with disciplinary action. Respondent has raised a special defense with respect to Wells, claiming that he was an "ally" of Tennessee to perform work for union contractors which Tennessee, by reason of the labor dispute, could not perform. The interrogation of the General Counsel's witness was directed in part to the fact of coercion so I think the issue had best be determined GLAZIERS LOCAL UNION 1184, PAINTERS 119 Board's ally doctrine applies to two sets of circumstances. In one the primary employer and the secondary employer, although separate legal entities , are commonly owned and controlled so that they may be considered a single employer. Although Respondent sought to show that Tennessee had established and assisted Wells in his glazing business the proof fell far short of the contention. The evidence in this case does not establish the "common ownership and control" and an "actual integration of operations and management policies" sufficient to make Wells an ally of Tennessee under this criteria.8 I likewise find an insufficiency of evidence to bring the case within the purview of the second set of circumstances . The leading case on this issue, as counsel for Respondent points out in his brief, is N.L.R.B. v. Business Machine and Office Appliance Mechanics Conference Board, Local 459, etc. (Royal Typewriter Co.), 228 F.2d 553 (C.A. 2). In the Royal case , Royal was struck by its service employees who customarily repaired Royal typewriters either at Royal's branch offices or at its customers ' places of business . Royal was under contract with certain customers to repair its typewriters under its warranty. When the strike began Royal 's contract customers were advised to have their typewriters repaired by independent repair companies and to send Royal the bill. The union then picketed those employers whom it suspected of using the service of independent contractors and those firms which it suspected of performing the repair work . The court, reversing the Board ,9 held that the picketing of the repair companies was not unlawful under Section 8(b)(4)(B) of the Act. The court stated: Thus the picketing of the independent typewriter companies was not the kind of secondary activity which §8(b)(4)(A) of the Taft-Hartley Act was designed to outlaw. Where an employer is attempting to avoid the economic impact of a strike by securing the services of others to do his work, the striking union obviously has a great interest , and we think a proper interest, in preventing those services from being rendered . This interest is more fundamental than the interest in bringing pressure on customers of the primary employer. Nor are those who render such services completely uninvolved in the primary strike. By doing the work of the primary employer they secure benefits themselves at the same time that they aid the primary employer. The ally employer may easily extricate himself from the dispute and insulate himself from picketing by refusing to do that work. I find a significant distinction between the facts of this case and Royal Typewrtter. With the exception of the DX contract , 1° I cannot find that Wells performed any work which had been under contract to Tennessee. On the record herein he sought and got his own contracts and, while he used Tennessee materials , at least for the most part , he was free to do so. The use of a struck employer's materials does not constitute engaging in "struck work." As to whether Tennessee would have obtained the ,contracts which Wells obtained but for the strike the answer must be purely speculative . Unlike the independent repair contractors in the Royal Typewriter case, Wells received his remuneration from the contractors , not from Tennessee , and the remuneration was fixed by negotiations between Wells and his customers. Having found that the action taken by Local 1184 against the contractors who dealt with Tennessee was taken against them as employers and not as union members, I do not reach the so-called preemption issue raised by Respondent in its brief. IV. THE REMEDY Having found Respondent has engaged in and is engaging in certain unfair labor practices , it shall be recommended that it cease and desist therefrom , and take certain affirmative action necessary to effectuate the policies of the Act. Upon the foregoing findings and conclusions and upon the entire record I make the following: CONCLUSIONS OF LAW 1. By its letter of September 12, 1965, to all its members, including Wells, Green , Weeks, and White and Williams, and by imposing disciplinary action upon Wells for doing business with Tennessee with the object in the first instance of forcing Wells, Green, Weeks, and White and Williams to cease doing business with Tennessee, and in the second of forcing Wells to cease doing business with Tennessee, Respondent has violated Section 8(b)(4)(ii)(B) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in this case , it is recommended that Glaziers Local Union 1184, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, its officers , agents, and representatives, shall: 1. Cease and desist from threatening, restraining, and coercing Gyndel E. Wells, d/b/a Pete Wells Glazing Contractor, Charles Weeks, d/b/a Woodbine Glass Co., Doyle Green, d/b/a G. E. Glass Co., and James White and Jimmy Williams, d/b/a W & W Glass Co., or any other employer engaged in the construction industry who is a member of Local 1184 with the object of forcing Wells, Weeks, Green, and White and Williams or any other employer engaged in the construction industry who is a member of Local 1184 to cease doing business with Tennessee Glass Company, Incorporated. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its offices and meeting halls, copies of the attached notice marked "Appendix."" Copies of said notices, to be furnished by the Regional Director for 8 See Miami Newspaper Printing Pressmen's Local No 46 (Knight Newspapers , inc.) v N L R .B , 322 F 2d 405 , 408, 409 (C A 5) 0 The Board's decision is reported in 111 NLRB 317 10 The General Counsel concedes in his brief that Wells was performing struck work when it assumed the DX contract from Tennessee Counsel for Tennessee also concedes in his brief that the DX job was a subcontracting job performed for Tennessee but contends that this lone performance cannot serve to make him an ally I agree N L R B v Dallas General Drivers, etc , Local No 745, 264 F 2d 642 , 647 (C A 5) 11 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's 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 " 120 DECISIONS OF NATIONAL Region 26, shall, after having been duly signed by an authorized representative of Respondent , be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered , defaced , or covered by other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for Region 26, for posting by Wells, Green , Weeks, and White and Williams , and Tennessee, if willing, at all locations on their premises where notices to employees are customarily posted. (c) Notify said Regional Director within 20 days from the receipt of this Decision and Order , what steps have been taken to comply herewith.12 12 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify said Regional Director , in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF GLAZIERS LOCAL UNION 1184 , BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in LABOR RELATIONS BOARD order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT threaten , restrain , or coerce Gyndel E. Wells, d/b/a Pete Wells Glazing Contractor, Charles Weeks, d/b/a Woodbine Glass Co., Doyle Green , d/b/a G. E. Glass Co., James White and Jimmy Williams, d/b/a W & W Glass Co., or another employer engaged in the construction industry who is a member of Local 1184 , with the object of forcing Wells, Green , Weeks, and White and Williams , or'any other employer who is engaged in the construction business who is a member of Local 1184 to cease doing business with Tennessee Glass Company, Incorporated. GLAZIERS LOCAL UNION 1184, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS 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. If members have any question concerning this notice or compliance with its provisions , they may communicate directly with Board's Regional Office, 746 Federal Office Building, 167 North Main Street , Memphis, Tennessee 38103, Telephone 534-3161.