Loc. 1937, Glaziers District Council 51

LOC. 1937, GLAZIERS DISTRICT COUNCIL 51 37 Local Union 1937 , Painters and Glaziers District Council No. 51 , AFL-CIO and Prince George's Center, Inc. Case 5-CE-21 June 5, 1970 DECISION AND ORDER By MEMBERS FANNING, MCCULLOCH, AND JENKINS On March 4, 1970, Trial Examiner William W. Kapell issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in the unfair labor practice al- leged in the complaint and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, Respondent filed ex- ceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 sup- porting brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. called the Act, was heard in Washington, D.C., on January 7, 1970, with all parties participating pur- suant to due notice upon a complaint' issued by the General Counsel on November 17, 1969.2 The complaint, in substance, alleges that on or about October 14, the Company and Local Union 1937, Painters and Glaziers District Council No. 51, AFL-CIO, hereafter referred to as Respondent or the Union, executed a collective-bargaining con- tract with the Company containing, inter alia, the following: "The Company claims the right to sub- contract such painting as it deems necessary from time to time provided that all such subcontracting shall be with persons or entities having a contract with Painters and Glaziers District Council No. 51 or its affiliates," that said contract has since been maintained and continued in effect, that pursuant to the aforesaid provision the Company has agreed to cease and refrain from handling, using, selling, transporting, or otherwise dealing in the products of other employers, and has agreed to cease doing business with other persons, and that by reason thereof Respondent has engaged in conduct viola- tive of Section 8(e) of the Act. In its duly filed answer Respondent denies the al- legations of commerce, admits the execution of the contract containing the aforedescribed provision but claims that it was agreed to on or about August 1, and denies the commission of any unfair labor practice. All parties were represented and were afforded an opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs were received from Respondent and the General Counsel and have been carefully considered. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent, Local Union 1937, Paint- ers and Glaziers District Council No. 51, AFL- CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Ex- aminer's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM W. KAPELL, Trial Examiner: This matter, a proceeding under Section 10(b) of the National Labor Relations Act, as amended, herein FINDINGS OF FACT 1. COMMERCE The Company, at all times material herein a cor- poration duly organized under and existing by vir- tue of the laws of the State of Maryland, has been engaged in the management of four properties con- sisting of two office buildings called the Federal Building and the Center Building, and two apart- ment houses known as Plaza Towers East and Plaza Towers West, located in Prince Georges County, Maryland. The Company receives annual manage- ment fees of $20,000 for the Federal Building, $30,000 for the Center Building, $20,000 for Plaza Towers East, and $12,000 for Plaza Towers West. It also receives $96,000 a year for the cleaning operation of each of the two office buildings. The Company takes care of the leasing, cleaning, purchasing of materials, reviewing and paying bills, ' Based upon the charge filed on October 16, 1969, by Prince George's Center, Inc , hereafter referred to as the Company 2 All dates hereafter refer to they ear 1969 unless others ise noted 183 NLRB No. 6 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hiring and firing employees, and otherwise represents the owners in all respects. In 1969 the gross rental receipts for the Center Building occu- pied solely by the United States Navy amounted to approximately $585,000, and about $1,000,000 for the Federal Office Building , which is occupied in part by the United States Department of Agricul- ture. Other tenants of the Federal Building include the C & P Telephone Company of Maryland whose rental amounts to about $36,000 a year and Inter- national Telegraph and Telephone Company. Rental receipts from the apartment houses amount to approximately $950,000 annually. In the management of the aforesaid properties, the Com- pany during 1969 also purchased supplies and ser- vices from sources outside the State of Maryland amounting to approximately $75,000.3 Based on the foregoing, I find that at all times material herein the Company was engaged in commerce within the meaning of Section 2(6) and (7) of the Act. See Mistletoe Operating Company, 122 NLRB 15334, for Board jurisdiction over office buildings; Canal Marais Improvement Corporation, 129 NLRB 1332, for Board jurisdictional criteria involving U.S. Government operations; and Parkview Gardens, 166 NLRB 697, for jurisdictional requirements in- volving apartment house rentals. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, at all times material herein that Respondent has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED VIOLATION A. The Facts The facts are essentially not in conflict. As part of its management operations, the Company en- tered into a collective-bargaining contract with Respondent covering a unit of its painting em- ployees. The contract containing the subcontract- ing clause" was not disputed and was admitted in evidence. Respondent also admitted in its answer that the contract since its execution (October 14, 1969) has been maintained and continued in effect. B. The Issue Involved, Contentions of the Parties, and Discussion The only issue involved is whether the subcon- tracting clause violates Section 8(e) of the Act. The General Counsel asserts that the clause neither suggests unit work preservation nor other economic considerations in its limitations, and is, therefore, violative of the Act. The Respondent raises several contentions which assertedly preclude a finding of violation. Thus, it claims that the unit work falls within the exemption of the construction proviso 5 to Section 8(e) and that, therefore, the section is inapplicable. In sup- port, Respondent asserts that the unit work not only involves repainting but could, on occasion, require the moving of an office wall to accom- modate a tenant. Even assuming such an office al- teration to be made, I find that the contention is an unsuccessful attempt to legalize the subcontracting clause by bringing it under the construction indus- try provision. Obviously, the Company is not an employer in the construction industry nor was the work involved to be done for the construction in- dustry. The proviso is, therefore, inapplicable. See Columbus Building and Construction Trades Council, AFL-CIO (The Kroger Co.), 164 NLRB 516, fn. 1. Respondent also contends that the invalidation of the subcontracting clause herein would cause it to suffer substantial or total loss of bargaining unit work. Even if true, I find no merit in this argument. The Union could have protected itself against any such loss by negotiating a contract to bar any sub- contracting. It may not now seek relief from any prospective loss by relying upon an unlawful clause. Respondent claims further that Section 8(e) prohibits only agreements to "cease" doing busi- ness , thereby connoting an interrupution of a con- tinuous course of business, whereas the term "refrain" from doing business indicates a refusal to enter into, or renew, a relationship which either never previously existed or was terminated by its own terms. Respondent concludes from this in- terpretation of the section that the agreement by the Company to refrain from establishing a business relationship in the future is not an agreement to cease doing business ( interrupting a continuous course of business) and is, therefore, not covered by Section 8(e). I find no reasonable basis upon which to construe the section as applicable only to existing contractual relationships. Nor was any Board decision cited to support such a distinction. The purpose of the section was to inhibit both exist- ing and future "hot cargo " arrangements. Lastly, Respondent contends that a service unre- lated to handling or transporting a "product" is not covered by Section 8(e) because the phrase "or to perform any services" which is included in Section 8(b)(4) of the Act does not appear in Section 8(e). 1 Pursuant to arrangements made during the hearing , the General Coun- sel was permitted to amend the commerce provisions of the complaint to include the above findings subject to Respondent 's inspection of the Com- pany's books to verify the figures elicited in testimony adduced by the General Counsel and to move within a specified time to reopen the hear- ing for the purpose of contesting said testimony No timely motion has been made by Respondent for that purpose, and consequently the testimony concerning commerce remains unrefuted Article I I-subcontracting- § I I I (quoted above) The proviso reads as follows That nothing in this subsection (e) shall apply to an agreement between a labor organization and an eniploier in the conrrrucuon in- dustrt relating to the contracting or subcontracting of work to be done at the site of the construction , alteration , painting , or repair of a build- ing structure , or other work [Emphasis supplied l LOC. 1937, GLAZIERS DISTRICT COUNCIL 51 39 Respondent then concludes that inasmuch as the Council No. 51 or its affiliates. It would, therefore, phrase "to perform any services" does not appear appear, and I conclude, that the subcontracting in Section 8(e) the only services covered by that clause violates Section 8(e). section would be handling or transporting a "prod- uct," and that therefore painting is, not covered by Section 8(e). I also find this contention to be without merit. Significantly, the aforesaid phrase appears only in a proviso to Section 8(b)(4) and excludes its application in a specified situation. Moreover, Section 8(b)(4) has been construed by both the Board and the courts to be applicable to services unrelated to handling or transporting a "product" such as janitorial services.6 C. Conclusions In pertinent part, Section 8(e) provides: It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement , express or im- plied, whereby such employer ceases or refrains or agrees to cease or refrain from ... dealing in any of the products of any other em- ployer, or to cease doing business with any other person and any ... agreement entered into . . . shall be to such extent unenforceable and void:... . In Milk Drivers' Union, Local 753 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Sidney Wanzer & Sons, Inc.), 141 NLRB 1237, 1240, the Board stated: The Board has held, with court approval, that a contract clause that prohibits or restricts the absolute subcontracting of work performed by employees in a bargaining unit covered by a contract may be lawful, but that a clause which allows subcontracting only to certain qualified employers is violative of Section 8(e) of the Act.3 S District No 9, International Association of Machinists, AFL-CIO (Greater St Louis Automotive Trimmers and Up- holsterers Association , Inc ), 134 NLRB 1354, enfd 315 F 2d 33 (C A D C ), Retail Clerks Union , Local 770, et al (The Frito Co, Western Division), 138 NLRB 244 By maintaining and giving effect to the subcon- tracting clause herein, it is clear that the Company was prohibited from doing business with employers who did not qualify thereunder. Furthermore, the restriction neither preserved nor expanded the work of the unit covered by the contract herein.' It clearly was intended to inure to the benefit of fel- low union employees of contractors who were under contract with Painters and Glaziers District 8 See Building Service Employees Local No 29 (Columbus Services of Pittsburgh, Inc), 163 NLRB 965, Local 254 Building Service Em- ployees International Union (University Cleaning Co) 151 NLRB 341, enfd 359 F 2d 289 (C A. 1), N L R.B v Building Service Employees International Union, Local No 105 [Industrial Janitorial Service], 367 F 2d 277 (C A 10), enfg 151 NLRB 1424. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Com- pany's operations described in section I, above, have a close, intimate, and substantial relationship 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. Upon the above findings of fact and upon the en- tire record in the case, I make the following: CONCLUSIONS OF LAW 1. At all times material herein Respondent has been a labor organization within the meaning of Section 2(5) of the Act. 2. At all times material herein the Company has been engaged in commerce as an employer within the meaning of Section 2(6) and (7) of the Act. 3. By maintaining, enforcing, and giving effect to the subcontracting clause contained in the collec- tive-bargaining agreement between Respondent and the Company, the Respondent entered into an agreement in violation of Section 8(e) of the Act. 4. The aforesaid unfair labor practice is an un- fair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices , I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in the case , I recommend that Local Union 1937, Painters and Glaziers District Council No. 51, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Maintaining , enforcing, and giving effect to the collective-bargaining contract entered into with ' See Loral Union No 28, Sheet Metal Workers' International Association, AFL--CIO (Johnson Service Conipan' ), 156 NLRB 804, 8 10-811, where "hot cargo" clauses designed to preserve the job and job rights of em- ployees in the bargaining unit were upheld in contrast to clauses inuring to the benefit of nonhargaining unit members r 40 DECISIONS OF NATIONAL LABOR Prince George's Center, Inc., on October 14, 1969, insofar as said contract provides that: The Company claims the right to subcon- tract painting as it deems necessary from time to time provided that all such subcontracting shall be with persons or entities having a con- tract with Painters and Glaziers District Coun- cil No. 51 or its affiliates. (b) Executing, maintaining, enforcing, or giving effect to any other contract or agreement, express or implied, whereby Prince George's Center, Inc., ceases or refrains, or agrees to cease or refrain, from doing business with any other employer or person, in violation of Section 8(e) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at the business offices and meeting halls of the aforesaid Union copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by its representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 5 signed copies of said notice for posting by Prince George's Center, Inc., if willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT execute, maintain , give effect to, or enforce any contract or agreement, ex- press or implied, with Prince George's Center, Inc., whereby such employer ceases or refrains, or agrees to cease or refrain, from doing busi- ness with any other employer or person, in violation of Section 8(e) of the Act. WE WILL NOT enforce or maintain in effect the collective-bargaining contract signed by the aforenamed Employer and the undersigned Union on October 14, 1969, insofar as said contract provides that. The Company claims the right to sub- contract such painting as it deems neces- sary from time to time provided that all such subcontracting shall be with persons or entities having a contract with Painters and Glaziers District Council No. 51 or its affiliates. LOCAL UNION 1937, PAINTERS AND GLAZIERS DISTRICT COUNCIL No. 51, AFL-CIO (Labor Organization) herewith.' Dated By (Representative ) (Title) " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 5, in writing , w ithin 10 days from the date of this Order , what steps Respondent has taken to comply herewith - This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or com- pliance with its provisions may be, directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Telephone 301-962-2822.