Local 1516, Electrical Workers

LOCAL 1516, ELECTRICAL WORKERS 617 Local 1516, International Brotherhood of Electrical Workers, AFL-CIO and Mercantile Bank, Charg- ing Party and W. A. Stewart d/b/a Stewart Elec- tric Company, Party to the Contract. Case 26-CE-1 The Board has considered the stipulation of facts, the briefs, and the entire record in the case, and hereby makes the following: FINDINGS OF FACT June 27, 1968 DECISION AND ORDER By Members Fanning , Jenkins, and Zagoria Upon charges duly filed, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 26, issued a complaint and notice of hearing dated March 8, 1968 , against Local 1516 International Brotherhood of Electrical Workers, AFL-CIO, herein called Local 1516 or Respondent. The complaint alleged that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(e) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing were duly served upon the parties. On March 19, 1968, Respondent filed its answer to the complaint denying the commission of an unfair labor practice and requesting that the complaint be dismissed. Thereafter, the parties entered into a stipulation of facts and jointly moved to transfer this proceed- ing directly to the Board for findings of facts, con- clusions of law, and order. The motion states that the parties have waived their rights to a hearing be- fore a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of a Trial Examiner's Decision. The parties also agreed that the charge, complaint and notice of hearing, answer, order indefinitely postponing hearing, and stipulation of facts con- stitute the entire record in this case. On April 11, 1968, the Board issued its order granting motion , approving stipulation and transfer- ring the case to the Board. Thereafter, the General Counsel and Respondent filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel. 1. THE BUSINESS OF THE EMPLOYER W. A. Stewart d/b/a Stewart Electric Company, hereafter called Stewart, is a sole proprietorship en- gaged in the construction industry in Jonesboro, Arkansas, as an electrical contractor. During the 12 months preceding issuance of the complaint Stewart purchased and received materials and sup- plies directly from points outside the State of Ar- kansas valued in excess of $50,000. Respondent ad- mits, and we find, that Steward is an employer en- gaged in commerce or in an industry affecting com- merce within the meaning of Section 2(6) and (7) of the Act, and we find that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local 1516 , International Brotherhood of Elec- trical Workers, AFL-CIO, is a labor organization within the meaning of Section 2 (5)of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Stewart is a member of the Jonesboro Division of the National Electrical Contractors Association (NECA), which the parties have stipulated has the right to negotiate collective-bargaining agreements with Respondent on behalf of Stewart. On May 19, 1967, Stewart, through the NECA, entered into a contract with the Respondent running rom April 25, 1967, to April 25, 1969. The parties have also stipulated that Respondent and Stewart have main- tained and given effect to, and are continuing to maintain and give effect to, all provisions of this contract. In November 1967, while employed on a job for the Mercantile Bank, Stewart was advised by letter dated November 22, 1967, from Respondent's busi- ness manager, Cecil Metzgar, that Local 1516 was exercising its right under article III, section 6, of the contract and instructing its members not to work on the Mercantile job because of a strike by Local 167 of the Ironworkers against Cooper Construc- 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion Company. On January 19, 1968, Mercantile Bank filed unfair labor practice charges against Local 1516 alleging violations of Section 8(e) of the Act.' On March 2, 1968, Local 1516, by Metz- gar, advised Stewart by letter that it was rescinding its letter of November 22, 1967, was notifying its members of the rescission , and was instructing them to report for work, and that in view of the fact that Respondent's members as individuals had refused to work on the job no instructions for them not to work had been issued . It was suggested that Stewart show the letter to his employees. Since March 2, 1968, Stewart's employees have worked on the Mercantile job. B. The Contract Provisions The contract contains two clauses which are al- leged to violate Section 8(e) of the Act: Article III, Section 6: This Agreement does not deny the right of the Union or its representatives to render assistance to other labor organizations by removal of its members from jobs when neces- sary and when the Union or its proper representatives decide to do so; but no removal shall take place until notice is first given to the Employer involved. Article III, Section 8: Local Union 1516 is a part of the International Brotherhood of Electrical Workers and any violation or annulment of working rules or Agreement of any other Local Union of the IBEW, or the sub-letting, assigning or transfer of any work in connection with the electrical work to any person, firm or corporation not complying with the terms of this Agreement by the Employer, will be sufficient cause for the cancellation of this Agreement after the facts have been determined by the International Of- fice of the Union. Section 8(c) provides in pertinent part that It shall be unfair labor practice for any labor organvation and any employer to enter into any contract or agreement , express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using , selling , transporting or otherwise dealing in any of the products of any other employer , or to cease doing business with any other person, and any contract or agreement entered into hereto- fore or hereafter containing such an agreement shall be to such extent unenforceable and void Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organisation and an em- ployer in the construction industry relating to the contracting or sub- contracting of work to be done at the site of the construction, altera- tion, painting , or repair of a building, structure, or other work Respondent contends2 that sections 6 and 8 of ar- ticle III are construction-industry provisions of the type exempted from the proscriptions of Section 8(e) of the Act. The construction-industry proviso removes the contracting and subcontracting of work to be performed at the construction site from the general strictures of Section 8(e). While the exact scope of Stewart 's work is not entirely clear from the facts before us , article III, section 3, of the contract defines "Employer," as used therein, as ... any individual or form of organization whose business is the erecting, installing, alter- ing, repairing , servicing, or maintaining of elec- trical wiring, devices, appliances, or equip- ment, including the purchasing from suppliers and the selling of manufactured parts and products. Nowhere in the contract do we find language pur- porting to limit its application to construction jobsites. Indeed , article IV, section 8, provides in pertinent part that: No Employee shall be allowed to report at the Employer's shop or on the job to perform work before the start of the work day without receiv- ing overtime pay.... And even more to the point article IV, section 14, provides that: The representative of the Union shall be al- lowed access to any shop or job at any reasonable time where workmen are employed under the terms of this Agreement. It is thus apparent that the contract has a greater reach than the construction industry , and, in any event , is not limited to work to be performed at the jobsite . Consequently, if the clauses in dispute per- mit illegal secondary activity they are not saved by the construction -industry proviso to Section 8(e). Article III, section 6, on its face permits Local 1516 to remove its members from a job to assist other labor organizations "when necessary" when- ever it chooses to do so , following notification to the Employer. The Board has held clauses of a similar nature , permitting a union to refuse to cross a picket line, violative of Section 8 (e) where they ' Respondent also contends that two recent Supreme Court decisions, National Woodwork Manufacturers Astoctation v N L R B , 386 U S 612, and Houston Insulation Contractors v N L R B, 386 U S 664, have altered the effect of previous Board decisions , that both sections are legal as work preservation clauses, and that in such cases self-help provisions are legal The cases cited by Respondent deal with the distinction between lawful pri- mary and illegal secondary activity Since, as we find infra , these clauses are not lawful work-preservation clauses, and are not directed solely to pri- mary disputes , we find no merit in this argument Local 437, International Brotherhood of Electrical Workers, AFL-CIO (Duneo Construction Co ), 171 NLRB 53. [This Decision was withdrawn in Board's motion and new decision issued , 180 NLRB 420.] LOCAL 1516, ELECTRICAL WORKERS 619 have been too broadly worded . Such clauses, which are not limited to covering protected activities en- gaged in by employees against their own employer, or to activities against another employer who has been struck by his own employees in a strike called by a representative which such employer is required to recognize , are tantamount to agree- ments to cease doing business with another em- ployer whose "production or services are under the union 's ban."3 Nor are we persuaded by Respon- dent 's argument that the section is not a grant of power but simply protects the Union from a breach of contract suit. Mere negative phrasing cannot serve to insulate an otherwise unlawful contract clause from the proscription of the Act where the practical effect of such phrasing comprehends the prohibited objective. Were there any doubt of this, Metzgar 's letter of November 22, 1967, wherein he refers to ". . . the rights granted to this Local Union in Section 6 of Article III of the Agreement. . . " would remove it. Accordingly , we find that article III, section 6 , violates Section 8(e) of the Act. Article III, section 8, has three separate purposes: (1) to prevent subcontracting of electrical work ex- cept to a contractor agreeing to abide by the terms of the agreement between the Employer and Local 1516; (2) to allow Local 1516 to terminate its con- tract if the Employer violates the clause ; and (3) to allow Local 1516 to terminate the contract if the Employer violates its agreement with any other IBEW local (sympathetic action). The contract restricts subcontracting to persons complying with the terms of Respondent's contract with the Employer on penalty of cancellation of the agreement and thus is an implicit agreement not to do business with persons not so complying. Since article III, section 2, of the contract is a union recognition clause, subcontracting is restricted to contractors who recognize the IBEW. Con- sequently, we are faced not with a primary work- preservation or "union standards " clause, but an unlawful union signatory agreement , which we find violates Section 8(e).4 Similarly, the sympathetic aspect of the clause is unlawful in that it purports to allow Local 1516 to assist a sister union which itself seeks to obtain an objective prohibited by Section 8(b)(4)(B ). Moreover, were the construction-in- dustry proviso of Section 8(e) applicable in the in- stant case, the clause would be unlawful because of the provision permitting termination of the agree- ment in the event it is breached by the Employer, thus sanctioning economic pressure against the Em- ployer in violation of Section 8(b)(4)(B).5 In a recent case, Dimeo Construction Co., supra, the Board found an identical clause violative of Section 8(e) on this basis. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of Respondent set forth 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. V. THE REMEDY Having found that the Respondent herein has en- gaged in certain unfair labor practices violative of Section 8(e) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Also, because the contract here is between the Respondent and the National Electrical Contrac- tors Association, Jonesboro Division, and is ap- parently divisionwide in scope, we shall order Respondent to cease and desist from entering into, maintaining, giving effect to or enforcing article III, sections 6 and 8, or any like or related clauses, whereby any employer agrees, in substance, to cease doing business with any other person in viola- tion of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case, we make the following: Conclusions of Law 1. W. A. Stewart d/b/a Stewart Electric Com- pany is an employer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. The Jonesboro Division of the National Elec- 9 Truck Drivers Union Local No 413 ( Patton Warehouse, Inc ) v. N.L R B., 334 F.2d 539 (C A.D.C ), Brotherhood of Painters, Decorators and Paperhangers of America, Local Union No. 823, AFL-CIO, et al (James L Maloned/b/a Malone Paint Service ), 161 NLRB 620. ' Building and Construction Trades Council of San Bernardino ( Gordon Fields) v N.L R B , 328 F.2d 540 (C.A.D C ), Truckdrivers Loca1413 (Pat- ton Warehouse. Inc.) v N.L.R B, 334 F.2d 539 (C.A D C ), Brotherhood of Pointers, Decorators and Paperhangers of America, Local Union No. 823, AFL-CIO, et a! (Jannes L Malone dlb/a Malone Paint Service), 161 NLRB 620 ' Local 437, International Brotherhood of Electrical Workers, AFL-CIO, et. al. (Dimeo Construction Co), Supra, fn. 2; Ets Hokin Corporation, 154 NLRB 839. In agreeing that Respondent's contract is not within the protection of the construction-industry proviso to Section 8(e), Member Fanning does not rely on the theory that the so-called "self-enforcement provisions" in an otherwise valid contract create an unlawful obligation under Section 8(e) of the Act See his dissenting opinion in Greater Muskegon General Contractors Association, 152 NLRB 360 at 369. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trical Contractors Association is an employer as- sociation authorized to negotiate collective-bar- gaining agreements with Respondent on behalf of W. A. Stewart d/b/a Stewart Electric Company. 4. The collective-bargaining agreement between Respondent and W. A. Stewart d/b/a Stewart Elec- tric Company contains provisions violative of Sec- tion 8(e) of the Act. 5. 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 Respon- dent, Local 1516 , International Brotherhood of Electrical Workers, AFL-CIO, Jonesboro, Arkan- sas, its officers, agents, and representatives, shall take the following action: 1. Cease and desist from entering into, maintain- ing, giving effect to, or enforcing article III, sections 6 and 8 , of the collective-bargaining agreement between W. A. Stewart d/b/a Stewart Electric Com- pany through the Jonesboro Division of the Na- tional Electrical Contractors Association and the Respondent, or any like or related clauses, whereby any employer agrees , in substance , to cease doing business with any other person in violation of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post in conspicous places at Respondent's business offices and meeting hall , including all places where notices to its members are customari- ly posted, copies of the attached notice marked "Appendix."' Copies of said notice, on forms pro- vided by the Regional Director for Region 26, shall, after being duly signed by the Union's representa- tive, be posted immediately upon receipt thereof and be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to in- sure that said notices are not altered, defaced, or covered by any other material. " 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 Enforc- ing an Order " (b) Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 1516 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS , AFL-CIO 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 enter into, maintain, give ef- fect to, or enforce unlawfully the assistance clause (article III, section 6), or the union signatory, termination, and sympathetic action aspects of the subcontracting clause (article III, section 8), which are in our collective-bar- gaining contract with W. A. Stewart d/b/a Stewart Electric Company, or any other em- ployer, whereby such employer ceases or refrains from , or agrees to cease or refrain from, handling, using , selling, transporting, or otherwise dealing in the products of any other employer, or to cease doing business with any other person. LOCAL 1516, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO (Labor Organization) Dated By (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, 746 Federal Office Building, 167 North Main Street , Memphis, Telephone 534-3161. Tennessee 38103,