Carpenters District Council of Houston

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters District Council of Houston and Vicinity and Astrodomain Corporation. Case 23-CC-464 March 26, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On December 11, 1972, Administrative Law Judge Samuel M. Singer issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and hereby is, dismissed in its entirety. The General Counsel excepted to the Administrative Law Judge's omission of two statements made by the Respondent's executive secretary We have considered these statements in reaching our decision and they do not alter our decision In view of our conclusion herein that the complaint should be dismissed, we find it unnecessary to consider or pass upon the Administrative Law Judge's discussion concerning the propriety of the Board's deferring to arbitration under Collyer Insulated Wire, 192 NLRB No 150, in this case Member Fanning would not, in any event, defer to arbitration in this case for reasons expressed in his dissenting opinion in Collyer and subsequent cases DECISION SAMUEL M. SINGER, Administrative Law Judge: This proceeding, tried before me in Houston, Texas, on October 26, pursuant to charges filed on September 25 and 27 and complaint issued on October 3, 1972,1 concerns allegations that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act by engaging in certain secondary boycott activities. In essence, the complaint alleges that Respondent threatened, coerced, and re- strained the Charging Party (Astrodomain) and other ' Hereafter, all dates are 1972 unless otherwise indicated 2 Transcript corrected by my order on notice dated November 28, 1972 persons engaged in commerce, including General Exhibits and Displays, Inc. (General), with objects of (a) forcing or requiring Astrodomain and General and other secondary or neutral employers to cease doing business with Concept Planners and Designers, Inc. (Concept); (b) forcing or requiring Astrodomain and other persons to induce General to cease doing business with Concept; and (c) forcing or requiring Concept to recognize and bargain with Respondent as representative of Concept's employees although Respondent has not been certified as representa- tive of such employees under Section 9 of the Act. All parties were represented by counsel and were afforded full opportunity to present such proof and arguments as they desired. Briefs were received from General Counsel and Respondent on October 27. Upon the entire record,2 and the briefs, I make the following- FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYERS INVOLVED Astrodomain, with its principal office and place of business in Houston, Texas, operates a convention and exhibit hall known as Astrohall. It annually purchases goods and materials originating in other States valued in excess of $50,000 and receives revenues from space rental and services in excess of $500,000. General, an Illinois corporation with its principal office and place of business in Chicago, Illinois, is engaged in the business of providing exhibits and displays, including fabrication, erection and dismantling thereof to exhibitors at conventions, shows, and fairs. During the year preceding issuance of the complaint, it provided customers at Houston goods and services valued in excess of $50,000. Concept, a Texas corporation with its principal office and place of business in Houston, Texas, is similarly engaged in the business of fabricating, refurbishing, erecting, or installing and dismantling exhibits and displays at conventions, shows and fairs. It annually provides services valued in excess of $50,000 for employers within the State of Texas, each of which annually has a direct outflow into interstate commerce of goods and services valued in excess of $50,000. I find that Astrodomain, General, and Concept at all material times have been persons engaged in commerce or industries affecting commerce within the meaning of the Act, and that assertion of jurisdiction here is proper. II. THE LABOR ORGANIZATION INVOLVED Respondent (District Council) is a labor organization within the meaning of Section 2(5) of the Act. 202 NLRB No. 109 CARPENTERS DISTRICT COUNCIL OF HOUSTON 745 III THE UNFAIR LABOR PRACTICES A. The Facts The findings herein are based on stipulations entered into and documentary evidence produced at the hearing. There was no testimony. During the period September 19-27, shoe companies held their National Shoe Fair in Houston's Astrohall, operated by Astrodomain. Two companies (Brown Shoe and Wohl Shoe) had contracted with General to install their exhibits and displays . General, based in Chicago and with no facilities and employees in Houston, in turn subcontracted the installation (and dismantling) to Con- cept, a Houston firm. Stan Hascher, General's production service manager, was dispatched from Chicago "to oversee" the display operations at Houston. As a member of the Builders Association of Chicago, General is bound by a collective agreement between that Association and Respondent District Council .3 The agree- ment provides that employers "shall not contract or subcontract any work coming within the jurisdictional claims of the Union to any person, firm or corporation not covered by a collective bargaining agreement with the Union ...." (Art. III, sec. 3.2.) Concept, on the other hand, employs members of Sign and Pictorial Painters Local 550 of the International Brotherhood of Painters and Allied Trades, AFL-CIO (with whom it has had contractu- al relations) to do its display work. On September 18 (the day before the Shoe Fair opened), Respondent's executive secretary , Fountain, attempted to speak to Astrodomam 's Convention Manager Vaugn by telephone. In Vaugn's absence, Fountain talked to Astro- domain's office employee, Elizabeth Thwaites. Fountain, who had not yet identified himself, asked Thwaites "what [Thwaites] would do if the roof blew off the Astrohall." Thwaites remarked that "it depended on why [Fountain] wanted to blow the roof off." Fountain ultimately disclosed the nature of his "problem ," stating it "con- cerned Concept Displays" and Thwaites said that "per- haps" Bo Altman (Astrohall's operations manager) or Don Freeman (the decorator for the Shoe Fair acting as labor contractor) "would be able to help." Fountain then said' "if the problem wasn't solved there might be a problem with Shoe Fair off the ground ." Thwaites "assured" Fountain that one' of the two men she mentioned could help. The next morning (September 19), Fountain visited Astrohall and talked to Altman. In response to Fountain's inquiry, Altman told Fountain where General 's Operations Manager Hascher could be located. Fountain then saw Hascher and said, "You are Stanley L. Hascher, your social security number is such and such, you are a member of Local 1784 of the District Council of Chicago." Hascher denied being a member , asserting he had not been one for 5 years Fountain said that General "was to abide by their contract with Local 1784 by only doing business with contractors who were members of appropriate local unions"; that if Hascher "was determined to use Concept .. . to install the displays, that he would apply sanctions against the company and against Hascher personally"; and that he was "to hire carpenters from Freeman ... and ... could only use Concept men to supervise." Hascher remonstrated that "this was ridiculous since Concept knew how their materials were to be assembled and this would make installation more difficult." He also said he would have "to discuss the matter" with Concept with whom General had contracted "for some" of the installation Fountain later assured Astrohall Operations Manager Altman that he had settled the situation with Hascher; said that while Concept could "bring supervisors into the hall ... under no circumstances can Concept employees do any work on the exhibits"; and mentioned that when Hascher "gets ready to set his exhibits, he is to get carpenters . . . from Freeman Decorating Company " Hascher thereafter "did order" six carpenters from Freeman to install the Brown Shoe and Wohl Shoe exhibits on the following morning (September 20) and cancelled General's contract with Concept. B Conclusions 1. Section 8(b)(4)(i) and (u)(B), so far as here relevant, prohibits a union or its agents from inducing or encourag- ing employees of a secondary or neutral employer "to engage in a strike" or not "to perform any services," and from threatening, restraining, or coercing secondary employers where "an object" of such conduct is to force or require a secondary employer to cease doing business with a primary or disputing employer. Under General Counsel's theory of the case the primary or disputing employer here was Concept, a nonunion employer, i.e., one who did not employ carpenters to install and dismantle the two shoe company displays in the Astrohall; and the secondary or "neutral" • employers were Astrodomain (Charging Party which operated Astrohall) and General (the employer with whom Respondent had a collective agreement and who had subcontracted the work to Concept). As noted at the outset of this Decision, the complaint alleges that Respon- dent had employed unlawful pressures against these two "secondary" employers in order to bring about a cessation of business between General and Concept.4 Respondent denies the unfair labor practices charged and contends that it was only seeking to implement or enforce the subcon- tracting clause in its collective agreement with General Additionally, it urges most vigorously (br. pp. 5-7) that since the dispute "centered around a particular contract [i.e., subcontracting] clause" involving "nothing more .. . than a dispute over the interpretation and meaning of a contract clause agreed to [by the parties] . . . the dispute should be deferred by the National Labor Relations Board to the arbitration process in accordance with the Collyer doctrine." 5 S The agreement was entered into between the Association "for and on behalf of" member-employers and by District Council "for and on behalf" of constituent locals in several Illinois counties 4 Another objective named in the complaint-to force Concept to recognize and bargain with Respondent (although not certified as representative of Concept 's employees)-is without support in the record Apparently this allegation has been abandoned by General Counsel, whose brief does not address itself to this point 5 Collver Insulated Wire, 192 NLRB No 150 Under Respondent's collective agreement with General, "Any dispute as to the proper (Continued) 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. There is no question, and I find, that an object of Respondent's conduct was to require and force General to cease doing business with Concept. To this end Respon- dent Executive Secretary Fountain on September 18 telephoned Astrodomain to secure assistance in resolving the "problem" of Concept' s installation of the shoe exhibits at the convention hall. On the next day (September 19), Fountain demanded that General's Operations Manager Hascher "abide by their contract ... by only doing business with contractors" employing carpenters; and that Concept, which employed members of another union, be confined to using supervisors. Respondent readily achieved its objective since General on the next day (September 20) canceled its subcontract with Concept and arranged to use carpenters for installing the two shoe company displays. 3. In order to establish a violation of Section 8(b)(4), however, General Counsel must establish not only a proscribed objective, but also inducements of secondary employees to cease work and/or threats or coercion of secondary employers to achieve the prohibited objective. While it is permissible for a union by proper means to seek to persuade a secondary employer to cooperate in achieving even a proscribed objective, it is unlawful for it to seek to accomplish this by illegal methods. See N.L.R.B. v. Servette, Inc, 377 U.S. 46, 53-54. General Drivers, Chauffeurs, etc., Local Union No. 886 (The Stephens Company), 133 NLRB 1343. The complaint alleges that Respondent sought to attain its objective (cessation of work between General and Concept) by (a) threatening Astrodomain on September 18 "with physical damage to the Astrohall" and "with strikes, work stoppages and other retaliatory measures"; and (b) by threatening General on September 19 "with strikes, work stoppages and other retaliatory measures." As to the September 18 incident involving Astrodomain, it will be recalled that Respondent's executive secretary, Fountain, spoke only by telephone with Astrodomain's office employee, Thwaites. Before identifying himself, Fountain asked "what [Thwaites] would do if the roof blew off the Astrohall." Unaware of Fountain's concern, Thwaites answered "it depended on why [Fountain] wanted to blow the roof off." When Fountain disclosed that he had a "problem" involving Concept, Thwaites referred him to two officials who, she felt, "would be able to help." When Fountain commented that "if the problem wasn't solved there might be a problem with Shoe Fair off the ground," Thwaites "assured" him that either of the two men to whom she directed Fountain could help him. In my view, Fountain's remarks constituted neither inducement of an employee to strike or to withhold her services within the purview of Section 8(b)(4)(i); nor, if Thwaites can be construed as a mere conduit for conveying Fountain's remarks to management,6 a threat of "physical damage to the Astrohall" and of a work stoppage violative of Section 8(b)(4)(ii), as alleged in the complaint. Fountain's remarks, evidently uttered in exasperation, were too vague and ambiguous to justify a finding that they were threatening interpretation of this Agreement" must be processed under the grievance- arbitration clause, and "the decision of the Board of Arbitrators shall be final and binding upon both parties " 6 Whether Thwaites was an employee or managerial official is not and coercive. Nor does it appear that Thwaites took them as threats of physical damage or work stoppage. I find and conclude that General Counsel failed to meet the burden of showing, which is his, that Fountain's remarks fall within the proscription of Section 8(b)(4)(i) and (ii) of the Act. Cf. Mill and Smeltermen Union, Local 16A, etc. (Charles J. Naeseth), 170 NLRB 578; International Union of Operating Engineers, Local 150 (Builders Association of Chicago), 165 NLRB 159, 160-161. See also Electrical Workers Union Local 28, L B. E. W. (Hoertz Electric Mainte- nance Co.), 138 NLRB 160, 161-162. 4. As to the September 19 incidents involving General, the record shows that Respondent Executive Secretary Fountain demanded that General's Operations Manager Hascher "abide by" the collective agreement between Respondent and General providing that employers "shall not contract or subcontract any work coming within the jurisdictional claims of the Union to any person, firm or corporation not covered by a collective-bargaining agree- ment with the Union." Fountain also demanded that General cease using employees of Concept, a nonsignatory who did not employ carpenters to handle the shoe company displays (although he had no objection to the use of Concept supervisors); and that General obtain carpen- ters from another employer in the area. Finally, Fountain stated that if Hascher "was determined to use Concept .. . to install the displays, that he would apply sanctions against [General] and against Hascher personally." Ac- cording to General Counsel, Respondent's invoking of the collective agreement to justify its insistence that General cease dealing with Concept is totally unjustified because: (a) the agreement was intended to cover only "typical building and construction industry work" of a permanent nature and not installation and dismantling of displays of "temporary" duration (tr. pp. 43-44); and (b) the agree- ment "does not purport to pertain to any work being performed outside the [Union's] territonaljunsdiction" in the Chicago area or Illinois. (G.C. br., p. 5.) Respondent, on the other hand, construes the collective agreement to comprehend the display work contracted to Concept, contending "why would [General and Respondent ] have a contract if they were not in the business contemplated .. . if it wasn't for the work General did?" (tr. p. 44); and claims, contrary to General Counsel, that as an employer with facilities only in Chicago and on whose behalf the Association had executed the collective agreement, the contract necessarily covered all work performed by or for General in any geographical area. In short, while General Counsel contends that General was a secondary or neutral employer insofar as the work in Houston was concerned, Respondent contends that General was a primary and disputing employer-a question which can and should be resolved by an "interpretation" of the collective agreement in a grievance-arbitration proceeding to which the Board should defer the instant case under the Collyer doctrine. (See supra, fn. 5.) In my view, it is unnecessary to resolve the issue whether disclosed in the stipulated record Although the complaint alleges that the pressures employed by Respondent came within both subparagraphs (i) and (n), General Counsel in his brief now only claims that they came within subparagraph (n) CARPENTERS DISTRICT COUNCIL OF HOUSTON 747 General was a primary or secondary employer as to the installation and dismantling of the shoe display exhibits in Houston Irrespective of whether General came within the Congressional intent of "shielding unoffendmg employers and others from pressures in controversies not their own" (N.L.R.B. v. DenverBuilding & Construction Trades Council, 341 U.S. 675, 692),7 I find that, as in the case of the September 18 incident involving Astrodomain, Fountain's September 19 statements to Hascher in order to bring about a cessation of business between General and Concept were too vague and ambiguous to warrant a finding that they were threatening and coercive within the meaning of Section 8(b)(4)(n). To begin with, Fountain's demands that Hascher abide by the collective agreement, that he cease using Concept employees, and that he employ carpenters constitute noncoercive appeals unless his further statement that he "would apply sanctions" against General and Hascher if they persisted in dealing with Concept can reasonably be constiued as a threatening or coercive remark. It is clear, however, that the remark regarding use of "sanctions" could encompass lawful as well as unlawful pressures. Such lawful pressures could include a lawsuit for breach of contract, an injunction suit, or even invoking the contractual grievance-arbitration procedure. See Orange Belt District Council of Painters, No. 48 v. N.L.R.B, 328 F.2d 534, 537-538 (C.A.D.C.); Local Union No. 48 of Sheet Metal Workers v. Hardy Corp., 332 F.2d 682, 686-688 (C.A. 5); Mill and Smeltermen Union, Local 16A, etc. (Charles J. Naeseth), 170 NLRB 578.8 It is well settled that where a statement is subject to both an r If it was a primary employer involved in a labor dispute with Respondent, General was subject to various pressures (including a work stoppage or threats of such stoppage) to require Respondent to live up to a proper and lawful collective agreement providing employees with disputed work, irrespective of the adverse impact of such pressures on neutrals See National Woodwork Mfg Assn v N L.R B, 386 U S 612, 627, Painters District Council No 20 (Uni-Coat Spray Painting, Inc), 185 NLRB 930 9 "Of course, it cannot be successfully urged that a court order or decree is not coercive , or that the mere filing of a suit and its prosecution is not likewise coercive in nature , but such an expansive interpretation of the term proves too much " Local Union No 48 of Sheet Metal Workers, supra, 332 F 2d at 686 9 It was stipulated that, if called to testify, Hascher would have testified, under objection, that he took Fountain's "sanctions" remark to mean that innocent and noninnocent interpretation or meaning, it is incumbent upon General Counsel to establish that it is not innocent . United States Gypsum Co., 93 NLRB 966, 968-969 ; Electrical Workers Union 38, IBEW (Hoerz Electric Maintenance Co.), 138 NLRB 160, 161-162. This he has failed to do .9 I find and conclude that Fountain 's September 19 statements to General's official, Hascher, as well as his September 18 remarks to Astrodomain 's employee, Thwaites, did not constitute threats, coercion , or restraint within the meaning of Section 8(b)(4)(ii). Although an object of those statements was to require and force General to cease doing business with Concept, General Counsel failed to meet his burden of establishing that Respondent resorted to unlawful inducements of employees or restraint and coercion of secondary employers to achieve that objective. It follows that Respondent did not engage in unfair labor practices within the meaning of Section 8(b)(4)(i) and (n)(B). CONCLUSIONS OF LAW Respondent Union has not violated Section 8(b)(4)(i) and (ii)(B) of the Act, as alleged in the complaint. RECOMMENDED ORDERio Upon the basis of the foregoing findings and conclu- sions, and upon the entire record in the case, it is ordered that the complaint be and hereby is dismissed in its entirety. Fountain "would have pickets at [General's] Chicago location" and at Astrohall I agree with Respondent that any such attempted testimony would be subjective and conclusory supposition by Hascher of what he allegedly thought Fountain may have had in mind, as distinguished from what Fountain actually said Accordingly, I give no weight thereto (It is noteworthy that General Counsel's brief places no reliance on the stipulation ) 10 In the event that 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