Local 54, Sheet Metal Workers

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 54, Sheet Metal Workers International Association, AFL-CIO and Sakowitz, Inc. Local Union No. 54, Sheet Metal Workers International Association, AFL-CIO and J. R. Hobbs Co. Cases 23-CC-245 and 23-CC-246 February 7, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA Upon charges duly filed by Sakowitz, Inc., and J. R. Hobbs Co., the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, on November 2, 1967, issued a complaint alleging that Local Union No. 54, Sheet Metal Workers Association, AFL-CIO, had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended. Copies of the charges, complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent Union. On November 13, 1967, the Respondent filed its answer to the complaint. On April 3, 1968, the Respondent, General Counsel, and the Charging Parties entered into a Stipulation of the' Record in which they stipulated to certain facts. The parties waived their rights to a hearing before a Trial Examiner and a Trial Examiner's Decision, and agreed that the charges, complaint and the stipulation shall constitute the entire record in these cases. They further agreed to submit the stipulated record directly to the Board for findings of fact, conclusions of law, and a Decision and Order. By an order dated April 11, 1968, the Board approved the stipulation and transferred the case to itself. Thereafter, the General Counsel filed a brief. Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel. Upon the basis of the stipulation, and the entire record in these cases, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Sakowitz, Inc., is a Texas corporation with its principal office and place of business at Houston, Texas, where it is engaged in the retail sale of clothing and related items. During the past 12 months, a representative period, Sakowitz received gross revenues in excess of $500,000 and, during the same period, purchased goods directly from outside the State of Texas valued in excess of $50,000 which goods were shipped from points outside the State to its places of business in the State of Texas. Oshman's is a Texas corporation with its principal office and place of business at Houston, Texas, where it is engaged in the retail sale of sporting goods and related items. During the past 12 months, a representative period, Oshman's received gross revenues in excess of $500,000 and, during the same period, purchased goods directly from outside the State of Texas valued in excess of $50,000 which goods were shipped from points outside the State to its places of business in the State of Texas. J. R. Hobbs Co is a Texas corporation with its principal office and place of business at Houston, Texas, where it is engaged in the installation of heating and air conditioning equipment. During the past 12 months, a representative period, Hobbs purchased goods directly from outside the State of Texas valued in excess of $50,000 which goods were shipped from points outside the State to its places of business in the State of Texas. Joe A. McDermott, Inc., is a Texas corporation with its principal office and place of business at Houston, Texas, where it is engaged in the business of a general contractor. During the past 12 months, a representative period, McDermott purchased goods directly from outside the State of Texas valued in excess of $50,000 which goods were shipped from points outside the State to its places of business in the State of Texas. The parties stipulated, and we find, that Sakowitz, Oshman's, Hobbs and McDermott are, and have been at all times material herein, persons within the meaning of Section 2(1) of the Act and are employers engaged in commerce, or an industry affecting commerce, within the meaning of Section 2(2) and Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES McDermott is constructing a shopping center for Town and Country Village in a suburban area of the City of Houston at which Sakowitz and Oshman's have leased space and facilities to be used after construction is completed. In the course of its business, McDermott subcontracted the air conditioning and heating facilities of its Town and Country Village project to Hobbs under an arrangement whereby Hobbs and another employer, Town and Country Commercial Park, Ltd., would thereafter own and maintain such facilities under the partnership name of Town and Country Services. Sakowitz and Oshman's, as well as other tenants of Town and Country Village, pay for the air conditioning and heating services and maintenance of the air conditioning facilities provided by Town and Country Services indirectly by reason of the 174 NLRB No. 60 LOCAL 54, SHEET METAL WORKERS fact that such services are included in the monthly rental paid by all tenants to Town and Country Village. At no time material herein has Respondent had any labor dispute with Sakowitz or Oshman's; however, at all times material herein Respondent has had a bona fide labor dispute with Hobbs. Since on or about September 14, 1967, Respondent distributed , and threatened to distribute, the below-quoted handbill at Sakowitz' operating store in the downtown area of the City of Houston: J. R. HOBBS CO. THE AIR CONDITIONING CONTRACTOR On the Town and Country Project pays SUB-STANDARD WAGES to its employees, wages that are far below the prevailing negotiated wage in this area for Sheet Metal Workers. This payment of sub-standard wages by J. R. Hobbs Co. harms and injures economically not only its employees, but also is an attempt to undermine and undercut the established wages in this area. SAKOWITZ apparently sanctions the payment of sub-standard wages by taking space in the Town and Country Project. We ask you to refrain from doing business with SAKOWITZ unless they are willing to charge you sub-standard prices for their merchandise. If SAKOWITZ is unwilling to cut their prices, refuse to buy their merchandise and ask them to do business with companies that do not ask their employees to cut their wages. Cut rate wages is not fair unless merchandise prices are also cut rate. You the public - must voice your protest against cut rate wages. Otherwise, this disease may spread to you - and you -- and you. Sincerely, Louis Krzesienski Business Manager Sheet Metal Worker's Local Union 54 During the same period of time the Respondent threatened to distribute and distributed handbills at Oshman's operating store in the downtown area of the City of Houston. The handbills were identical to those set forth above but referred to Oshman's instead of Sakowitz. Contentions of the Parties 363 The General Counsel contends that the handbilling violated Section 8(b)(4)(ii)(B), and was beyond the scope of the protection of the publicity proviso to Section 8(b)(4) of the Act. The Respondent asserts, by way of its answer to the complaint, that its conduct was lawful by virtue of the publicity proviso. For the reasons noted hereafter, we agree with the Respondent, and conclude that its conduct did not violate the Act. Discussion Section 8(b)(4)(ii)( B)' makes it an unfair labor practice for a labor organization to threaten, coerce or restrain any person where an object is to force or require any person to cease doing business with any other person. The proviso' to Section 8(b)(4) authorizes publicity other than picketing which persuades customers of a secondary employer to stop trading with him except to the extent that such publicity has the effect of cutting off his deliveries or inducing his employees to cease work.3 Although it is acknowledged that the Board has found handbilling in somewhat similar cases to be protected by the publicity proviso,4 the General Counsel claims that the present case is distinguishable and that the Board has never passed on the express issue of whether the publicity proviso protects handbilling at a store of a secondary employer other than the one at which the services of the primary employer have been utilized. Specifically, the General Counsel contends "that a union may only engage in a secondary consumer boycott at the establishment of the secondary employer's contact with the primary employer" (emphasis in the original). Relating this contention to the facts here, the issue is whether the Union's handbilling at downtown store sites of Oshman's and Sakowitz was The relevant portions of Section 8(b)(4)(ii)(B ) provide: It shall be an unfair labor practice for a labor organization or its agents . to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is. forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, or manufacturer, or to cease doing business with any other person .. . The language of the "publicity" proviso states Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity , other than picketing, for the purpose of truthfully advising the public , including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods , or not to perform any services, at the establishment of the employer engaged in such distribution. 'See N L R B. v. Fruit and Vegetable Packers Local 760, 377 U.S 58 at 70, 71. 'Plumbers and Pipefitters Local Union 142, AFL-CIO (Piggly Wiggly), 133 NLRB 307, Milk Drivers and Dairy Employees Local 537 (Lohman Sales Company, 132 NLRB 901. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violative of the Act because the handbilling was not limited to the suburban shopping center where Hobbs was performing construction and services for Oshman's and Sakowitz. Neither the Act nor the legislative history indicate the existence of a geographic limitation on the publicity proviso. To the contrary, the legislative history indicates that it was contemplated that utilization of mass media was protected by the proviso. In that connection, we note that the then Senator John Kennedy explained the proviso in the following manner:' We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but we were able to persuade them to agree that the union shall be free to conduct informational activity short of picketing. In other words, the union can hand out handbills at the shop, can place advertisements in the newspapers, can make announcements over the radio, and can carry on all publicity short of having ambulatory picketing in front of a secondary site. The absence of a geographic limitation to the scope of the proviso is inherent in the fact that radio and newspaper advertising is within the scope of its protection. To restrict the locus of permissible handbilling, while protecting appeals to all prospective consumers who listen to radios or read newspapers would be patently inconsistent. We conclude, therefore, that the Union's handbilling at the downtown stores of Oshman's and Sakowitz was protected by the publicity proviso.' Accordingly, we shall dismiss the complaint. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. '105 Congressional Record 16414 (September 3, 1959) 'Supra, fn. 4.