Local 252, Sheet Metal Wkrs.

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 252, Sheet Metal Workers' International As- sociation, AFL-CIO (S. L. Miller, Inc.) and Tulare-Kings Employers Council. Case 20-CC-605 June 29, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Upon charges duly filed by Tulare-Kings Em- ployers Council, the General Counsel of the Na- tional Labor Relations Board, by the Regional Director for Region 20, on July 20, 1966, issued a complaint alleging that Local 252, Sheet Metal Workers' International Association, AFL-CIO, among others, had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(4)(B) of the National Labor Relations Act, as amended. Upon amended charges duly filed by Tu- lare-Kings Employers Council, the General Coun- sel, by the Acting Regional Director for Region 20, on August 15, 1966, issued'an amended complaint also alleging that the Respondent Union, among others, had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(4)(B) of the Act.' Copies of the charges, amended charges, complaint, amended complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent Union. The amended complaint alleges, among other things, that the Respondent Union violated Section 8(b)(4)(i) and (ii)(B) of the Act by inducing and en- couraging individuals employed by Comfort Air Conditioning & Supply, Inc., to engage in a strike, and by threatening, coercing, and restraining Com- fort with an object of forcing or requiring Comfort to cease doing business with S. L. Miller, Inc. With respect to specific instances of unlawful conduct, the amended complaint alleges, in substance, that the Respondent Union threatened to and did take disciplinary action against certain of its members who are employed by Comfort for crossing a picket line established by another union in the course of that union's dispute with Miller.2 Answers were filed by the Respondent Union admitting certainju- risdictional and factual allegations of the amended complaint, but denying the commission of unfair labor practices. On December 1, 1966, the Charging Party, the Respondent Union, and the General Counsel filed a motion to transfer proceeding to the Board with a stipulation of facts executed by the parties. The parties agreed that the stipulation of facts and the exhibits attached thereto and made a part thereof should constitute the entire record in the case and that oral testimony is neither necessary nor desired. The parties further stipulated that they have waived their right to a hearing before a Trial Examiner and to the issuance of a Trial Examiner's Decision and that they have submitted the case directly to the Board for findings of fact, conclusions of law, and for decision and order. On December 5, 1966, the Board granted the parties' motion and ordered that the stipulation of facts be approved and made a part of the record herein and further ordered the proceeding trans- ferred to and continued before the Board for the purpose of making findings of fact and conclusions of law, and for the issuance of aDecision and Order. The Board also granted permission to the parties to file briefs. The General Counsel and the Respondent Union filed briefs.3 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion with this case to a three-member panel. Upon the basis of the parties' stipulation of facts, the briefs, and the entire record in this case, the Board makes the following: FINDINGS OF FACT I. COMMERCE S. L. Miller, Inc., a California corporation with an office at Visalia, California, is, and at all times material has been, engaged in the building and con- struction business as a general contractor. Durilig the past 12 months, in the course of its operations, Miller performed services valued in excess of $50,000 for firms located in California, which firms in turn annually ship goods and products valued at more than $50,000 directly to customers located outside the State of California. We find that Miller is now, and at all times material has been, an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effec- tuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated , and we find, that the Respondent, Local 252, Sheet Metal Workers' In- ternational Association, AFL-CIO, is, and at all times material has been , a labor organization within the meaning of Section 2(5) of the Act. i On November 29, 1966, the Regional Director approved Board set- tlement agreements with respect to the allegations in the amended com- plaint insofar as they relate to the other respondents named therein 3 In a Board settlement agreement, approved by the Regional Director on November 29, 1966, the Respondent Union agreed to settle the allega- bons of the amended complaint insofar as they relate to its conduct other than the disciplinary action referred to above. 3 The Respondent Union has requested oral argument As the record, the stipulation of facts, and the briefs adequately set forth the issues and the position of the Respondent Union, its request is hereby denied 166 NLRB No. 63 LOCAL 252, SHEET METAL WKRS. 263 III. THE UNFAIR LABOR PRACTICES A. The Facts Since December 14, 1965, Miller has been the general contractor for the construction of the Town and Country Market at Porterville , California. Miller, in turn, has subcontracted a portion of the work on the Town and Country job to Comfort Air Conditioning & Supply, Inc. Comfort employs in- dividuals who are members of the Respondent Union. On January 14, 1966 , Carpenters Local No. 2126, United Brotherhood of Carpenters and Joiners of America, AFL-CIO , commenced picket- ing Miller at the Town and Country jobsite with signs bearing the legend: STANLEY MILLER EMPLOYEES ARE WORKING BELOW BUILDING TRADES PREVAILING WAGES AND CONDITIONS IN THE AREA PERTAINING TO CARPENTRY WORK. WE HAVE NO DISPUTE WITH ANY OTHER EMPLOYER LOCAL NO. 2126. WE ARE NOT ASKING FOR RECOGNITION OR AGREEMENT The picketing was still in progress when, on March 7, 1966, Comfort's employees appeared at the project and began installing air-conditioning equipment pursuant to the Company's contract with Miller. On March 10, 1966, Howard Jones, business manager of the Respondent Union, notified Jessie Blasingame, Harold Crapson, and Rex Napier, members of the Respondent Union who were em- ployed by Comfort at the project, that he would bring charges against them for crossing and working behind the Carpenters' picket line, assertedly in violation of Article 17, Section 1(e) of the Constitu- tion and Ritual of the Sheet Metal Workers' Inter- national Association4 and Section 1(a) of the General Laws of the Respondent Union.5 On March 28, Jones notified these employees that a Trial Committee would be selected to hold a hear- ing on the aforementioned charges. Thereafter, on April 30, 1966, the Executive Board of the Re- spondent Union, acting as a Trial Committee, held a hearing on the matter in the presence of the three employees. On May 26, the Respondent Union notified Blasingame, Crapson, and Napier that they had been found guilty as charged and fined them $250 each, with $200 suspended for a 1-year proba- tionary period, the remaining $50 to be paid on or before July 1, 1966. The employees paid the fines imposed and were placed on probation.6 B. The Contentions of the Parties The General Counsel contends that the discipli- nary action taken by the Respondent Union against three of its members, as discussed above, con- stitutes inducement or encouragement of neutral employees for an unlawful object and therefore vio- lates Section 8(b)(4)(i)(B) of the Act.' Although admitting that it took disciplinary ac- tion against the three employees for crossing and working behind the Carpenters' picket line, as al- leged, the Respondent Union denies any violation of Section 8(b)(4)(B) of the Act. It contends that as its action was taken pursuant to the rules and regu- lations of the Union, which are lawful on their face, and had no effect upon the employment relation- ships of the three employees involved, such action is only of internal concern and is, therefore, pro- tected by the proviso contained in Section 8(b)(1)(A) of the Act." The Respondent Union bases its contention upon the premise that only con- duct which induces or encourages employees in an unlawful manner is proscribed by Section 8(b)(4)(B) of the Act. C. Concluding Findings We do not accept the premise urged upon us by the Respondent Union, for it is well settled that em- ployee inducement need not be independently un- lawful if it is aimed at an objective proscribed by Section 8(b)(4)(B) of the Act.9 Moreover, we find in this case that the disciplinary action taken by the Respondent Union involved more than a matter of purely internal concern. Such action was taken to 4 Article 17 authorizes the imposition of penalties for violating, among other things, the rules and regulations of any local union affiliate relating to rates of pay, rules, and working conditions. 5 Section 1(a) makes it a violation of the rules and bylaws of the Respondent Union for a member "to cross, or fail to observe any recog- nized and lawful picket line, or to perform work on any job being lawfully picketed by an AFL-CIO affiliated union." 6 Pursuant to 10(1 ) of the Act, an injunction against the Respondent Union, among others, was issued by the United States District Court for the Southern District of California, on August 31, 1966. The court found reasonable cause to believe that the disciplinary action taken by the Respondent Union against the three employees , discussed above , violated Section 8 (b)(4)(B) of the Act and ordered the Respondent Union to refund the $50 fine paid by each employee and to rescind the 1-year probation penalty, pending the Board's decision herein (Hoffman v. Local 252, Sheet Metal Workers ' International Association, et al, Civil No. 2815-ND). ' The amended complaint alleges violations of Section 8(b)(4)(i) and (ii)(B) of the Act. However, in his brief, the General Counsel does not contend that the Respondent's action constitutes threats , restraints, and coercion within the meaning of Section 8 (b)(4)(u)(B). Accordingly, we shall not pass upon the question. 8 Section 8(b)(1)(A) makes it an unfair labor practice for a labor or- ganization to "restrain or coerce" employees in the exercise of their right to join or refrain from joining in concerted activities, with the proviso: "That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of mem- bership therein " ' N.L.R.B. v. International Rice Milling Co., 341 U.S. 665, 672 (1951) 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD penalize members for working for a neutral em- ployer at a construction project where another em- ployer was being picketed by an AFL-CIO af- filiate. In these circumstances, we find that the disciplinary action taken against Blasingame, Crap- son, and Napier by the Respondent Union violated Section 8(b)(4)(i)(B) of the Act. 10 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Union has en- gaged in certain unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirmative action designed to effectu- ate the policies of the Act. We shall, among other things, order that the Respondent Union rescind all disciplinary action taken against its members named herein and that it refund to them any moneys held on account of fines assessed.11 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. S. L. Miller, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct described in section III, above, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(i)(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 Respond- ent, Local 252, Sheet Metal Workers' Interna- tional Association, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from inducing or encourag- ing any individual employed by Comfort Air Condi- tioning & Supply, Inc., by threatening to take or by taking disciplinary action against him, to engage in a strike or a refusal in the course of his employment to handle or work on any goods or commodities, or to perform any services where an object thereof is to force or require Comfort Air Conditioning & Supply, Inc., to cease doing business with S. L. Miller, Inc. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Rescind all disciplinary action taken against Jessie Blasingame, Harold Crapson, and Rex Napi- er and refund to them any moneys held on account of fines assessed. (b) Post in its business offices and meeting halls copies of the attached notice marked "Appen- dix." 12 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative of the Respondent Union, shall be posted immediately upon receipt thereof, and be maintained by the Respondent Union for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Sign and mail sufficient copies of said notice to the aforesaid Regional Director for forwarding to Comfort Air Conditioning & Supply, Inc., for infor- mation and, if it is willing, for posting by it at all lo- cations where notices to its employees are customarily posted. (d) Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. Member Fanning, dissenting: I dissent from the conclusion of the majority that the Respondent Union, by taking disciplinary ac- tion against those of its members who were em- ployed by Comfort at the construction site here in- volved, violated Section 8(b)(4)(B) of the Act. I find, for the reasons set forth in the dissenting opinion in Markwell & Hartz, Inc.,13 that the work performed by Comfort is, by reason of that Com- pany's subcontractual relationship with Miller, a general contractor, related to Miller's normal busi- ness operation and, accordingly, that the Carpen- 10 Kon Lee Building Co., 162 NLRB 605. 11 Weidman Metal Masters, 166 NLRB 117. 12 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order " 13 155 NLRB 319, 330 LOCAL 252, SHEET METAL WKRS. 265 ters had the right to appeal to the employees of Comfort to honor its picket line around the Miller operation. This being so, the Respondent Union's threats to employ, and its employment of, discipli- nary action against its members employed by Com- fort in furtherance of its appeal to honor the picket line do not constitute unlawful inducement within the meaning of Section 8(b)(4)(i)(B) of the Act. Accordingly, I would find that the Respondent Union did not violate Section 8(b)(4)(B) of the Act by its conduct here in question and I would dismiss the complaint. APPENDIX NOTICE TO ALL MEMBERS employment to handle or work on any goods or commodities, or to perform any services, where an object thereof is to force or require Comfort Air Conditioning & Supply, Inc., to cease doing business with S. L. Miller, Inc. WE WILL rescind all disciplinary action taken against Jessie Blasingame, Harold Crap- son, and Rex Napier, and refund to them any moneys held on account of fines assessed. Dated By Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT induce or encourage any in- dividual employed by Comfort Air Condition- ing & Supply, Inc., by threatening to take or by taking disciplinary action against him, to en- gage in a strike or a refusal in the course of his LOCAL 252, SHEET METAL WORKERS' IN- TERNATIONAL ASSOCIA- TION, AFL-CIO (Labor Organization) (Representative) (Title) This notice must remain posted for 60 consecu- tive 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 the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 556-0335.