Carpenters, Local 533

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Falls Cities Carpenters District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO and its Local No. 533 and Cox and Craw- ley, Inc. Case 9-CC-562 May 6, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 21, 1971, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions 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 Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondents, Falls Cities Carpenters District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and its Local No. 533, their offic- ers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE J. BoTT, Trial Examiner: Upon a charge of unfair labor practices filed on July 22, 1970, by Cox and Crawley, Inc., herein called Charging Party, against Falls Cities Car- penters District Council of the United Brotherhood Carpen- ters and Joiners of America, AFL-CIO, and its Local No. 533, herein collectively called Respondents, the General Counsel of the National Labor Relations Board issued a com- plaint and notice of hearing on Septen}ber 23, 1970, alleging that Respondents violated Section 8(b)(4)(ii)(B) of the Na- tional Labor Relations Act, as amended, herein called the Act. Respondents filed an answer admitting certain allega- 190 NLRB No. 53 tions of the complaint but denying the commission of any unfair labor practices, and a hearing was held before me in Louisville, Kentucky, on December 1, 1970, at which all parties were represented. Subsequent to the hearing, General Counsel and the Charging Party filed briefs which have been carefully considered. Upon the entire record in the case, and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION OF THE BOARD The Charging Party is engaged in the business of a general contractor in the building and construction industry, with its principal office in Louisville, Kentucky. During the year prior to the issuance of the complaint, the Charging Party had operations which meet the Board's jurisdictional standards, with an inflow and outflow in excess of $50,000. The Charging Party is an employer engaged in "com- merce" and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATIONS INVOLVED It is admitted, and I find, that each of the Respondents is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The principal issue in the case is whether the Respondents violated Section 8(b)(4)(ii)(B) of the Act by threatening to picket and shut down the Jeffersonville, Indiana, jobsite of the Charging Party with an object of forcing or requiring the Charging Party to cease doing business with Mason McDon- ald and Sons which was engaged in the installation of drywall on the jobsite under a subcontract with the Charging Party. A. The Facts For several years Cox and Crawley, the Charging Party, has been signatory to a collective-bargaining contract with Falls Cities Carpenters District Council which is composed of a number of local unions, including Locals 533 and 64. Local 533 has territorial jurisdiction in Jeffersonville, In- diana, where the Charging Party has begun work on a public housing project as general contractor in February 1970. The Charging Party subcontracted the drywall work on the project to Mason McDonald and Sons sometime in March 1970 and that firm began work on the project sometime in May. Mason McDonald does not have a contract with Car- penters District Council, but is party to a contract with Inter- national Union of District 50 Allied and Technical Workers. The Charging Party's contract with Carpenters District Council contains a provision whereby all employers bound by it agree that they will not subcontract any work within the jurisdiction of the Carpenters Union to any firm unless it agrees to be bound by all the terms of the master agreement. In May 1970 Fogle, business agent of Carpenters Local Un- ion 64, and Pitts, secretary-treasurer and chief executive officer of Carpenters District Council learned that McDonald and Sons was doing drywall work and initiated efforts to remove it from the project. Pitts testified that after he learned from a job steward that "there was a non-union dry wall contractor" working on the Jeffersonville project, he assigned Fogle, business agent of Local 64, to assist the business agent of Local 533, who was also supervised by Pitts, to investigate the matter. Fogle later reported back to Pitts that McDonald had an agreement with District 50 and was not interested in using carpenters, who Pitts described as "our people," on the job. He was not sure that he knew that Fogle had telephoned Crawley, as appears CARPENTERS, LOCAL 533 285 below, but he conceded that he intended that Fogle speak with McDonald in order to "get things straightened up," meaning to "use our people on the job." This was the extent of his instructions, however, he said and the only actions he took thereafter were to file a grievance with the Louisville Contractors Association, of which Cox and Crawley is a member, claiming a violation of contract. This grievance, it appears, became deadlocked before the joint board of em- ployer and union members and has not gone to arbitration, although the Respondents have demanded it. Frank Crawley, vice president of the Charging Party, re- ceived a telephone call from Business Agent Fogle about the middle of May 1970. He testified, that Fogle opened the conversation by asking him what he "was doing to him" on the Jeffersonville project, and then went on to complain that Crawley had subcontracted the drywall work on the job to a company which was under contract with another union and was not utilizing "his carpenters." Crawley told Fogle that this information was news to him and that he was surprised that McDonald had not been in touch with him to make arrangements to use carpenters because he had made it clear to McDonald before he made his contract with him that the job was a "union" job. Sometime during this conversation, according to Crawley, and this is the only basis for General Counsel's complaint in this case, Fogle told Crawley that he could not permit McDonald to work on the project and that if he continued to use McDonald, he would have to "shut the job down." In addition, but Crawley did not appear too cer- tain of this in his testimony, Fogle mentioned "pickets" in connection with his threat to "shut the job down." Near the end of the conversation, after Crawley had de- scribed McDonald's experience in this field and Fogle had indicated that the company was unknown to him, Crawley gave Fogle McDonald's telephone number and Fogle said he would call him. Robert McDonald testified that he received a telephone call from an agent of the Carpenters Union, whose name he could not recall (Fogle agreed that he was the caller) after he commenced work on the project. Fogle asked him if he was still working on the job. McDonald asked Fogle what he meant by "still working," and Fogle replied that McDonald was "not permitted to work on that job" and he intended to get him removed from it. Fogle's version of his conversation with McDonald is not basically different from McDonald's. He said he told McDon- ald that the union with which he had a contract was "not recognized" by the Carpenters Union and asked him to affili- ate with the Carpenters. When McDonald indicated disinter- est in Fogle's proposal, Fogle told him that he "would use every means that he knew of to get him off the job." Later in his testimony Fogle explained that only "legal procedures" were included in the means he intended to use to "stop ... members of District 50 doing the work ... " on the project that members of the Carpenters Union were supposed to do. Fogle's account of his conversation with Crawley is sub- stantially different from Crawley's version. Although he agreed that he asked Crawley "what he was trying to do to him" on the project and also told him that, "You have got a non-union contractor over there and we can't permit that," he said he added that such conduct was "a violation of our contract." He denied that pickets or picketing were men- tioned at all or that he threatened to shut down the job. Neither Crawley, McDonald nor Fogle appeared to signifi- cantly exaggerate the substance of what was said in each conversation set out above, and although in Crawley's and Fogle's cases some slight shading of the legal aspects of the situation to justify their own positions may have been evident, neither claimed to have perfect recall and McDonald very candidly admitted that he did not. Based upon my very care- ful observation of the witnesses, their testimony and the whole context, I find that, except in one particular, Crawley's and McDonald's accounts of what was said are more reliable than Fogle's. Crawley was very sure and convincing about Fogle's threat to "shut the job down," and I find that it was made. On the other hand, Crawley was not too clear or certain about a reference to "pickets" or "picketing," but Fogle's denial was positive and impressive, and I find, there- fore, that he did not threaten to picket the job. I also find that the clear meaning of Fogle's statements to both Crawley and McDonald was that the Respondents would not allow Mc- Donald to do the drywall work on the job because he was "non-union," meaning that he did not employ members of the Carpenters Union. B. Analysis and Conclusions I have found that in May 1970 Fogle, business agent of Local 64, acting under the instructions of Pitts, secretary- treasurer of Carpenters District Council, and on behalf of Respondent Council and Repondent Local 533, threatened the Charging Party with a job shut down if the Charging Party continued to permit subcontractor McDonald to do the drywall work on the Jeffersonville project. This was a clear threat within the meaning of Section 8(b)(4)(ii)(B) of the Act having an object of forcing or requiring the Charging Party to cease doing business with McDonald and, as such, it con- stituted a violation of the Act. Fogle testified that Crawley violated its contract with the Carpenters Union when it subcontracted to McDonald be- cause McDonald did not agree to be bound by all of the terms and conditions of the contract between the Carpenters Union and the Charging Party as provided in article I, section 1.11 of that agreement. Respondents' answer, although denying any threats, affirmatively sets forth that Respondents had a labor dispute with the Charging Party because of a violation of its collective-bargaining agreement with Respondents in subcontracting with Mason McDonald and Sons. It is a fact that the Charging Party and Respondents are parties to an agreement which restricts the Charging Party's right to subcontract work and the Charging Party may very well have been in violation of that contract when it subcon- tracted the drywall work to Mason McDonald, but despite this, Respondents' attempt to obtain compliance with its agreement by threatening to shut down the job would still violate the Act.' The evidence shows that sometime after Fogle's threat to Crawley, Respondent Carpenters District Council filed a grievance under its contract with the General Contractors Association of Louisville claiming a violation in the Charging Party's subcontracting to Mason McDonald and that al- though the grievance was not resolved, Respondents' demand for arbitration has been refused. Notwithstanding this evi- dence, I have found that Respondents threatened the Charg- ing Party with a job shutdown with an object of getting Mason McDonald removed from the job, but even if the contract has been violated and Respondents were also at- tempting to secure arbitration of their claims this would not excuse a resort to threats with an object of interrupting the ' Northeastern Indiana Building and Construction Trades Council, (Centlivre Village Apartments), 148 NLRB 854; Construction & General Laborers' Union Loca1270 (Howard J. White. Inc.), 161 NLRB 1313, 1323, enfd. 398 F.2d 86 (C.A. 9); Local 513, International Union of Operating Engineers (Zeni-McKinney- Williams Corporation), 163 NLRB 400; Inter- national Union of Operating Engineers (Wesley Forsythe), 180 NLRB No. 53. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business relationship between Cox and Crawley and Mason McDonald.' I find and conclude that Falls Cities Carpenters District Council of the United Brotherhood Carpenters and Joiners of America, AFL-CIO, and its Local 533 have engaged in un- fair labor practices in violation of Section 8(b)(4)(ii)(B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the business operations of Cox and Crawley, Inc., 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 obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, it will be recommended that the Board issue the Recommended Order set forth below requiring Re- spondents to cease and desist from said unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Respondents are each labor organizations within the meaning of the Act. 2. The Charging Party is an "employer" as defined in the Act, engaged in "commerce" and in operations "affecting commerce" as defined in the Act. 3. By threatening the Charging Party with a job shutdown with an object of forcing or requiring the Charging Party to cease doing business with Mason McDonald and Sons, Re- spondents threatened, restrained, and coerced the Charging Party in violation of Section 8(b)(4)(ii)(B) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:' commerce with an object of forcing or requiring such persons to cease doing business with Mason McDonald and Sons. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Post at their offices and meeting halls, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 9, shall, after being signed by Respondents' representatives, be posted by Respondents immediately upon receipt thereof and maintained 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 by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail copies of said notice to the Regional Director for posting by Cox and Crawley, Inc., it being will- ing, at all locations where notices to its employees are cus- tomarily posted. (c) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondents have taken to comply herewith.' 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 National 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, after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten, coerce or restrain Cox and Crawley, Inc., or any other person engaged in commerce or in an industry affecting commerce where an object thereof is to force or require such person to cease and desist from doing business with Mason McDonald' and Sons. ORDER Respondents, their officers, agents, successors, and assigns, shall: 1. Cease and desist from threatening, restraining, or coerc- ing persons engaged in commerce or an industry affecting ' Sequoia District Council of Carpenters (Wm. M. Lyles Company), 186 NLRB No. 61; Orange Belt District Council of Painters No. 48 [Calhoun Dry Wall Co.] v. N.L.R.B., 328 F.2d 534 (C.A.D.C.). See also cases cited in fn. 1, supra. In Los Angeles Building & Construction Trades Council (Couch Electric Company), 151 NLRB 413, which was mentioned at the hearing by Respondents, the Board held that a union could picket in order to obtain a hot cargo agreement, but the evidence did not show, the Board noted, that the union's picketing had the further object of forcing a cessation of business with a particular subcontractor. Here the evidence does show such an object, as I have found. See Los Angeles Building & Construction Trades Council (Gasket Manufacturing Company), 175 NLRB No. 43. ' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. FALLS CITIES CARPENTERS DISTRICT COUNCIL OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO (Labor Organization) Dated By Dated By (Representative) (Title) LOCAL 533 (Labor Organization) (Representative) (Title) This is an offical notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not altered, defaced, or covered by any other material CARPENTERS, LOCAL 533 287 Any questions concerning this notice or compliance with 2407, Federal Building, 550 Main Street, Cincinnati, Ohio its provisions may be directed to the Board's Office, Room 45202, Telephone 513-684-3663.