Grunau Sprinkler Corp.

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grunau Company, Inc. a/k/a Grunau Sprinkler Corporation and Sprinkler Fitters Local Union 669, affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada. Case 30-CA-2299 December 6, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On August 2, 1973, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, the Charging Party adopted the General Counsel's exceptions, and the Respondent filed cross-exceptions and a support- ing brief. 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 Respondent, Grunau Company, Inc. a/k/a Grunau Sprinkler Corporation, Milwau- kee, Wisconsin, its officers, agents, successors, and assigns, take the action set forth in said recommend- ed Order. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: Upon a charge filed by the above-named Union on April 9, 1973, a complaint, dated May 25, 1973, was issued alleging that Grunau Company, Inc. a/k/a Grunau Sprinkler Corpora- tion, herein called the Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In substance, the complaint alleges that on March 30, 1973, the Company discriminatorily trans- ferred five employees, which caused them loss of employ- ment during the week of April 1 through 8, 1973, because of their membership in, sympathies for, and activities on behalf of, the Charging Party; and by reason thereof and by reason of a threat made by the Company that if the Charging Party engaged in a strike certain members would be deprived of employment and attempts by the Company to transfer employees who are members of the Charging Party because the Charging Party had engaged in a strike, the Company also has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent's answer to the complaint denies that it has engaged in the alleged unfair labor practices. A hearing in this proceeding was held in Milwaukee, Wisconsin, on June I1 and 12, 1973. General Counsel and Respondent have filed briefs with the Administrative Law Judge. Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Company, a Wisconsin corporation, which main- tains its principal office in Milwaukee, Wisconsin, is engaged in, among other activities, the business of installing fire protection and fire control equipment. During the most recent calendar year, which period is representative of Respondent's operations, the Company purchased and received through channels of interstate commerce directly from points located outside the State of Wisconsin goods valued in excess of $50,000. Respondent admits, and I find, that the Company is an employer, as defined in Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Sprinkler Fitters Local Union 669, affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, herein called Local 669, and Sprinkler Fitters and Apprentices Local Union No. 183, affiliated with the same International organization, herein called Local 183, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Company is a plumbing contractor which does business principally in the midwest. Its fire protection division sells, designs, installs, and services sprinkler and other fire protection systems. This proceeding is concerned with the transfers and attempted transfers of journeymen and apprentices who had been employed by the Compa- ny's fire protection division to install sprinkling systems at various projects in the Milwaukee, Wisconsin, area. All journeymen and apprentice sprinkler fitters em- ployed by Respondent are members of either Local 183 or Local 669, with whom the Company has had continuous contractual relations for many years. The contract with Local 183 covers the Company's sprinkler fitters who work within the Union's territorial jurisdiction which encompas- ses the counties of Washington, Milwaukee, Waukesha, and Ozaukee in Wisconsin. For the purposes of this case the jurisdiction of Local 183 may be referred to as being limited to the Milwaukee area. The installation work which 207 NLRB No. 107 GRUNAU SPRINKLER CORPORATION the Company performs outside the Milwaukee area is subject to the jurisdiction of Local 669 and the collective- bargaining agreement with that union. The most recent contract between the Company and Local 183 is for the period from July 1, 1972, to June 30, 1974. The contract with Local 669, which extended from April 1, 1970, to March 31, 1973, expired at midnight of that day, as of which time the parties had not reached agreement on a new contract.' Agreement was finally reached on April 7, 1973. During the hiatus between the two contracts, that is from midnight on March 31 until April 7, Local 669 was on strike against the members of the Association, including Respondent. However, the strike notices which were mailed to the members of Local 669 on Sunday, April 1, 1973, did not reach the members before Tuesday, April 3, or Wednesday, April 4. Therefore, despite the official declaration of a strike, some members of Local 669 worked on Monday and Tuesday, April 2 and 3. During the times material to this proceeding there was a shortage of journeymen and apprentice sprinkler fitters in the Milwaukee area. Therefore, in March 1973, with the concurrence of Local 183 and Local 669, several members of Local 669 were employed by the Company to work in the Milwaukee area. While so employed their terms and conditions of work were governed by the contract between the Company and Local 183. Although prior union approval was required before the Company could hire Local 669 members to work in the Milwaukee area, which is within the jurisdiction of Local 183, no clearance from Local 183 or Local 669 was required before the Company could transfer any Local 669 member who was working in the Milwaukee area to a job outside that area and within the jurisdiction of Local 669. At any one time the Company may have contracts to provide as many as 50 sprinkling installations. The time and the number of employees required to complete the various installations differ greatly. Also, the number of employees assigned to a particular job may fluctuate substantially during the progress of the job. According to Raymond J. Malek, vice president and manager of the Company's fire protection division, it is a characteristic of the business that with respect to almost every job there is pressure to obtain and to assign the appropriate numbers of employees to the job at the proper times in order to complete the work economically and on schedule. There- fore, there are constant transfers of employees from job to job. Transfers take place not only when a job has been completed but frequently when the Company is being pressed to speed the progress of its work on a particular job. In such case it will transfer to that job employees who had been working at projects where there is less urgency. On the evening of March 29, Oscar Kornblum, who is the Company's installation manager and who is primarily concerned with scheduling Respondent's work and insur- ' The Company does not negotiate its agreements directly with Local 183 and Local 669, but as a member of the National Automatic Sprinkler and Fire Control Association, Inc., herem called the Association , it is bound by the agreements negotiated by the Association on behalf of its members. 2 I credit Dnebel's version of his conversation with Kornblum. Komblum did not contradict Driebel. Two other witnesses, Jerome Czechorski and Florian Peter Garski, also testified as to what was said by 733 ing_that the jobs are properly staffed, had a meeting with Dennis Driebel, business representative and financial secretary of Local 183. The meeting was informal and took place at the bar of the VFW hall following the conclusion of an executive board meeting of Local 183. Present during the conversation were five other members of Local 183, including several employees of the Company. The princi- pal subject of discussion was a request of the Company to indenture more apprentices to work for it within the territorial jurisdiction of Local 183. This was a subject which the Company had taken up with the Union from time to time in the past. During their conversation, Driebel asked Kornblum what he was going to do if Local 669 should go on strike. The Company's contract with Local 669 was due to expire at midnight on March 31, and it was understood that if the agreement was not renewed before that time Local 669 would call a strike. Dnebel testified that Kornblum stated, "[I ]f 669 went on strike, no members [of Local 669] would be working for the Grunau Company in the Milwaukee area," and that he would obtain replacements elsewhere and, if necessary, "get them off the street." 2 The complaint alleges, and I find, that the foregoing remark by Kornblum constituted a threat to engage in reprisals against those members of Local 669 who were working for the Company in the Milwaukee area should Local 669 engage in a strike against the Company.3 Such a threat to retaliate against members of Local 669 because the Union calls a lawful strike, which is a form of concerted action protected by the Act, constitutes interfer- ence with, restraint, and coercion of employees in the exercise of rights guaranteed by Section 7 of the Act and, therefore, violates Section 8(a)(1). The next afternoon, Friday, March 30, 1973, five sprinkler fitters, all of whom were members of Local 669, but who were then working for the Company in the Milwaukee area at a project which is referred to in the record as the "First Wisconsin" job, were notified that they were being transferred to other jobs. The five employees are: Daniel Kranski, Ralph Mlodik, John Rell, Joseph Rell, and John Schmidt. John Schmidt was transferred to the Quaker Industries job in Antioch, Illinois, and the other four were transferred to the K-Mart job in Stevens Point, Wisconsin. Both jobs are within the territorial jurisdiction of Local 669. Of the transferees, Joseph Rell is a journeyman sprinkler fitter and the other four are apprentices. The five employees reported to their new assignments and worked at their, new assignments on Monday and Tuesday, April 2 and 3. None worked on April 4, 5, and 6. Although the five men did not appear as witnesses at the hearing a reasonable inference that can be drawn from the evidence is that they did not work on April 4, 5, and 6 because they joined the Local 669 strike which officially began on April 1 and ended on April 7. Driebel further testified without contradiction that in the evening of April 2 he had another conversation with Driebel and Kornblum on the night of March 29. While their testimony differs in minor details from Dnebel's testimony , the general tenor of their testimony serves to corroborate Driebel. 3 Members of Local 669 who were then working in the Milwaukee area for the Company were subject to the junsdiction of Local 183. There was no obligation on their part to join a Local 669 strike against projects situated outside the Milwaukee area. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kornblum who, among other things, said that he had transferred the four Local 669 apprentices from the First Wisconsin project because they had voted for the strike. Kornblum testified that on March 30, he left instructions with subordinates that Phillip Janoska, a journeyman sprinkler fitter and a member of Local 669, who was working for the Company in the Milwaukee area at the First Federal Plaza job, and Randell Burkette, also a journeyman sprinkler fitter and a member of Local 669 who was working in the Milwaukee area at the General Electric job, were to be transferred to the Quaker Industries job in Antioch, Illinois, which is within Local 669's jurisdiction. Janoska and Burkette were not informed of their transfers until April 2. Both protested the transfers because, among other reasons, they wanted to obtain 12 consecutive months of employment in the Milwaukee area in order that they might qualify for membership in Local 183. Both were permitted to remain at their respective jobs in the Milwaukee area and their notices of transfer were effectively rescinded. The attempts to transfer Janoska and Burkette are alleged to be violations of Section 8(a)(1). Respondent's defense with respect to the transfers and attempted transfers is that there was severe pressure on it to speed its work on the Quaker Industries and K-Mart projects and because of these pressures it required additional personnel on those projects and that is why it transferred the five men from the First Wisconsin job and sought to transfer Janoska and Burkette. There is no basis for doubting Respondent's evidence that as of the first week in April it required more men on the Quaker Industries and K-Mart projects. Although Respondent's witnesses testified in effect that the seven men involved in this case could be spared from the projects to which they were assigned in the Milwaukee area, Respondent offered no evidence whatsoever as to whether there was personnel working for it outside the Milwaukee area who could as readily have been transferred. As, on March 29, Kornblum threatened that he would not permit any Local 669 members to work in the Milwaukee area should Local 669 call a strike and as on the next day, Friday, March 30, the negotiations with Local 669 still had produced no agreement so that there existed a strong probability that a strike would be called at midnight on March 31, a reasonable inference from the circumstances, and I so find, is that the transfers and attempted transfers out of the Milwaukee area of seven members of Local 669 were made in effectuation of the foregoing threat. In view of the Company's declared policy to deny employment in the Milwaukee area to Local 669 members should that union call a strike, the burden was upon the Respondent to establish that the transfers were for reasons entirely unrelated to the anticipated strike by Local 669. This Respondent has not done. Respondent's evidence merely shows that there was a need for additional employees at the Quaker Industries and K-Mart projects. The evidence does not show why employees could not have been obtained elsewhere than from projects within the Milwau- kee area. Accordingly, I find that the transfers of the five men from the First Wisconsin project on March 30 were 4 A different question would be presented had the Employer discrimina- torily sought to transfer the five men and then discharged them because discriminations against these employees because of their membership in Local 669 and therefore constituted violations of Section 8(a)(3). I further find that such transfers, as well as the attempts to transfer Janoska and Burkette, tended to interfere with, restrain, and coerce employees in the exercise of the rights guaranteed in Section 7 and constituted violations of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with its operations de- scribed 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. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Although I have found that the transfers of the five men from the First Wisconsin project were discriminatory, these men accepted their new assignments and worked at their new assignments on April 2 and 3. The five men did not work on April 4, 5, and 6. None of the five appeared as witnesses at the hearing and, therefore, we do not have any direct testimony as to why they failed to work. However, in the circumstances of the case, I find that they joined the Local 669 strike which was then in progress. As participa- tion in the strike was a voluntary act on their part they are not entitled to any backpay for earnings lost while on strike. General Counsel's position is that when the men were transferred Respondent anticipated that Local 669 might call a strike, that the men might join such strike and, therefore, that the transfers might result in loss of earnings for the, transferees. While this may be true it does not entitle them to backpay. Employees who voluntarily leave their employment, whether for economic reasons or in protest of their employer's unfair labor practices, are not entitled to backpay during the period of time that they are on strike.4 Accordingly, I shall direct no payment of backpay to the five transferees named in the complaint. General Counsel does not seek an order restoring the transferees to the First Wisconsin project. Therefore, although I find that the transfers were discriminatory and in violation of Section 8(a)(3), I shall not direct that the five men be reinstated to the positions from which they were transferred. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By discriminatorily transferring Daniel Kranski, they refused to accept the discriminatory transfers. GRUNAU SPRINKLER CORPORATION Ralph Mlodik, John Rell, Joseph Rell, and John Schmidt on March 30, 1973, thereby discouraging membership in Local 669, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. By reason of the foregoing conduct, and by reason of the Company's attempt on April 2 to transfer Phillip Janoska and Randell Burkette from jobs in the Milwaukee, Wisconsin, area to jobs outside said area because of their membership in Local 669 and by reason of Respondent's threats on March 29 to transfer out of the Milwaukee area employees who are members of Local 669 should Local 669 call a strike against Respondent, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act: 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Grunau Company, Inc. a/k/a Grunau Sprinkler Corporation, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Transferring or threatening to transfer employees because of their membership in Local 669, or any other labor organization, or because the labor organization in which they are members threatens to call a strike or does call a strike against the Company. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action which is' deemed necessary to effectuate the policies of the Act: (a) Post at its place of business in Milwaukee, Wisconsin, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent, to insure that said notices are not altered, defaced, or covered by any other material. 735 (b) Notify the Regional Director for Region 30 in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. 5 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. 6 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT transfer or threaten to transfer any employee because of his membership in Sprinkler Fitters Local Union 669, affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, or in any other labor organization, or because any labor organization in which any employee is a member has called a strike or has threatened to call a strike against us. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed to them in Section 7 of the Act. GRUNAU COMPANY, INC. A/K/A GRUNAU SPRINKLER CORPORATION (Employer) Dated By (Representative) (Title) This is an official 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 be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3861.