Hoisting Engineers Local Union 101

HOISTING ENGINEERS LOCAL UNION 101 59 Hoisting Engineers Local Union 101 (Herrman's Excavating, Inc.) and Laborers International Un- ion of North America, Laborers Local 142 (Herr- man's Excavating, Inc.) and R. D. Andersen Construction Co., Inc. Hoisting Engineers Local Union 101 (Herrman's Excavating, Inc.) and R. D. Andersen Construction Co., Inc. Cases 17-CC-533, 17-CC-534, and 17-CB-1216 February 14, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon charges' duly filed by R. D. Andersen Construction Co., Inc., herein called Andersen against Hoisting Engineers Local Union 101, herein called Respondent Hoisting Engineers, and Laborers International Union of North America, Laborers Local 142, herein called Respondent Laborers, the General Counsel of the National Labor Relations Board, by its Regional Director for Region 17 on September 26, 1973,2 issued and served on the parties complaints, which were subsequently consolidated, alleging violations of the National Labor Relations Act, as amended. In substance the complaints in Cases 17-CC-533 and 534 allege that each Respondent violated Section 8(b)(4)(i) and (ii)(B) by threatening with reprisals Herrman's Excavating, Inc., herein called Herrman's, a subcontractor (with whom Respondent Laborers admittedly had no dispute), and inducing Herrman's employees at the Shawnee County Farm Bureau Building (herein called Farm Bureau Building) jobsite in Topeka, Kansas, to cease work with an object of forcing Herrman's to cease doing business with Andersen, the general contractor, with whom admittedly Respondent Laborers had a dispute. Respondent Laborers admits that since on or about July 26, 1973, and continuing to date, and in furtherance of its labor dispute with Andersen, it has picketed Andersen at the above jobsite. However, both Respondents deny a commission of any unfair labor practices. The complaint in Case 17-CB-1216 alleges in substance that Respondent Hoisting Engineers vio- lated Section 8(b)(1)(A) by threatening an employee of Herrman's with physical harm and/or other reprisals because he worked on the above jobsite behind the Respondent Laborers picket line. On October 29, the parties entered into a stipula- tion to transfer this consolidated proceeding to the Board wherein they agreed that certain documents would constitute the entire record herein,3 waived all intermediate proceedings before an Administrative Law Judge, and submitted this case directly to the Board for its Decision and Order, reserving to themselves only the right to file briefs. By order dated November 7, the Board approved the stipula- tion, transferred the consolidated proceeding to itself, and set a date for filing of briefs. Thereafter, briefs were filed by Respondent Laborers and the General Counsel. 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 entire record herein as stipulated by the parties, as well as the briefs filed by Respondent Laborers and General Counsel, and makes the following findings and conclusions: FACTS 1. THE BUSINESS OF THE EMPLOYERS R. D. Andersen Construction Co., Inc., and Herrman's Excavating, Inc., are Kansas corporations engaged as a general contractor and as an excavation contractor. respectively, with their principal offices at Topeka. Kansas. Each Company annually purchases goods and supplies in excess of $50,000, Andersen directly, and Herrman's indirectly and directly, from outside Kansas. The parties stipulated, and we find, that each Company is an employer and a person engaged in commerce or in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4)(B) of the Act. If. THE LABOR ORGANIZATIONS INVOLVED The Respondents admitted, and we find, that at all material times they have been labor organizations within the meaning of Section 2(5) of the Act. 111. TIIE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The ultimate questions presented in this case are whether the facts herein establish that either or both I The charge in Case 17-CC-533 was filed and served on Respondent hoisting Engineers on September 7, 1973. An amended charge in that case was filed on September 12. 1973, and served the next day The charges in Cases 17-CC-534 and l7-CB-1216 were filed on September 12 and were served on September 13 on the respectise Respondents 2 All events herein cccurred in 1973 3 The stipulated record consists of the charges. complaints related orders and notices, and answers in the instant consolidated unfair labor practice proceeding, as well as the transcript of an injunction proceeding under Sec 10(1) of the Act before the United States District Court for the District of Kansas in Civil No. T-5446 209 NLRB No. 12 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents have engaged in 8(b)(4)(i) and (ii)(B) conduct and whether Respondent Hoisting Engi- neers has engaged in conduct violative of Section 8(b)(1)(A) of the Act. B. The Stipulated Facts At all times material herein, Andersen has been engaged as its own general contractor for the construction of the Farm Bureau Building in Topeka, Kansas. As general contractor, Andersen subcon- tracted the excavation work to Herrman's, whose employees are represented by Respondent Hoisting Engineers. Actual construction work began July 26, 1973. Beginning on or about the above date, Respondent Laborers picketed the construction site at an en- trance reserved for Andersen's employees in further- ance of its labor dispute with Andersen. While the picketing was continuing on September 5, at about 2 p.m., Roy Gooden, business agent of Respondent Hoisting Engineers, telephoned Mary G . Herrman, Herrman's secretary-treasurer, asking for her hus- band, the company president. When advised that her husband was not there and could not be reached, Gooden stated that he wanted to talk to him about his working behind the Respondent Laborers picket line, that Gooden "was getting a lot of static out there," and that Gooden had to do something about it in the next 30 minutes. Mrs. Herrman replied that she was sorry, but she could not help him. Gooden concluded the conversation by saying, "Well, if he wants it the hard way that is the way he will get it." Within the next 30 minutes Good, another business agent of Respondent Hoisting Engineers, Gooden, and Alan Dollen, Respondent Laborers business agent, left the building, where they all had offices, in Good's car which Good drove to the Farm Bureau Building jobsite. Gooden walked up to Morris Bennett, an employee of Herrman's, who was the only employee at work, and elicited from Bennett the fact that he was working for Herrman's. Gooden then told Bennett to get his "God-damned ass down off the machine" on which he was working and asked Bennett "what in the Goddamned hell"' he thought he was doing "working behind that picket line" and stated: `Son of a bitch. You know better than that." When Gooden elicited a response from Bennett that he was not "completely" a member of Gooden's Union, Gooden told Bennett to get his "Goddamned ass off the job," and added: "I want your F-ass outside the fence" (surrounding the Jobsite). Gooden warned Bennett that he would see Bennett that night at Bennett's home. Gooden then joined the Respon- dent Laborers picket line. Bennett left the machine and went to a telephone, where he called Mrs. Herrman, who relayed word from her husband to go to another job. As Bennett was driving his machine to the other Jobsite, he was followed by Good. Gooden, and Dollen in Good's car. When Bennett arrived at the second jobsite, at which other employees of Herrman's were employed, Gooden and Good got out of the car and walked over to where Bennett was working . Gooden again remonstrated with Bennett for working at the Farm Bureau Building jobsite . Bennett explained that Pat Herrman had sent him to that Job. Gooden stated, "Oh f- Herrman." Gooden then turned to another employee of Herrman working there and asked him if he had a card. When the employee responded in the affirmative, Gooden asked the employee if he "wanted in this." The employee responded in the negative. Good then turned on Bennett, saying "If it wasn't for the Union, you wouldn't be making the money you are making now." Good told Bennett, "This Union was not made of c- like you." Gooden then said to Bennett , "You son of a bitch, I want your Goddamned ass out on the street right now." When Bennett replied that he wasn 't so foolish as to believe he could whip Gooden and Good, the latter person replied that if that was what Bennett wanted he would leave. Good then walked a short distance away . But Bennett told Gooden that he still "wasn't that stupid" and asked Gooden what Gooden would do it Bennett uttered obscenities to Gooden. Gooden responded "try it." About 3:30 p.m., Gooden called Mrs. Herrman and asked her for Bennett's name and address, but Mrs. Herrman refused. C. Contentions of the Parties The General Counsel contends that Respondent Hoisting Engineers violated Section 8(b)(4)(i) and (ii)(B), as well as Section 8(b)(l)(A), by the above conduct of Gooden , its admitted agent : that, further, Gooden was also acting as an agent of Respondent Laborers in furtherance of the picketing objectives of that Union during the course of such conduct, thereby enmeshing Herrman 's, a neutral employer, in Respondent Laborers dispute with Andersen in violation of Section 8(b)(4)(i ) and (ii)(B), and tainting the legality of the picketing of the Respondent Laborers at the Farm Bureau Building jobsite. The Respondent Laborers, on the other hand, contends that it is not responsible for any violations which may be found to have been committed by Respondent Hoisting Engineers. Discussion and Conclusions 1. In support of his contentions that Respondent Hoisting Engineers committed 8(b)(1)(A) violations, HOISTING ENGINEERS LOCAL UNION 101 General Counsel argues that Gooden threatened employee Bennett with physical violence in order to induce a work stoppage. Respondent Hoisting Engineers has filed no briefs or presented any witnesses so that we must, without benefit of any opposing views, consider whether Gooden's conduct in relation to Bennett at the two jobsites amounted to restraint or coercion under Section 8(b)(1)(A). We conclude that it did. We note that Gooden voiced extreme displeasure toward Bennett because Bennett was working behind the Respondent Laborers picket line at the Farm Bureau Building jobsite and in a belligerent mariner asked Bennett if he was a union member and ordered him to leave work and go outside the jobsite. When Bennett made no immedi- ate response to leave, Gooden warned Bennett that he would see Bennett that night at Bennett's home. When Bennett finally left the jobsite and proceeded to another jobsite, Gooden immediately followed him there and again confronted Bennett. in much the same manner, about working at the Farm Bureau Building jobsite. Gooden ended this confrontation by challenging Bennett to go out on the street, thereby posing a threat of physical harm. When Bennett replied that he wasn't so foolish as to believe he could whip Gooden and Good, who was also present, Good said he would leave if that was what Bennett wanted and did so. However, Bennett still replied that he "wasn't that stupid." Gooden and Good then left, but Gooden later attempted unsuc- cessfully to obtain Bennett's home address. Under all the above circumstances, we find that Respondent Hoisting Engineers through its agent, Gooden, violated Section 8(b)(l)(A) in that it restrained and coerced Bennett from exercising his Section 7 right to refrain from honoring the Respon- dent Laborers picket line. See Metal Polishers, Buffers, Platers and Helpers International Union, Local No. 67 (Alco-Cad Nickel Plating Corporation), 200 NLRB No. 51. 2. We also find that the contention of the General Counsel that the Respondent Hoisting Engineers coerced and restrained Herrman's and induced an individual employed by Herrman's to cease work in furtherance of Respondent Laborers dispute with Andersen is supported by the evidence. We find that Gooden's statement to Mrs. Herrman, a high management official of Herrman's, that if her husband wanted it the "hard way" he would get it, in the context of Gooden's other statement that he "was getting a lot of static out there" because her husband was working behind the Respondent Laborers picket line, constituted a veiled threat to take reprisals against Herrman's unless that Company ceased 4 The General Counsel concedes in its brief that, if the picketing by Respondent Lzhorers were viewed alone, it would conform to Moore Dry 61 doing business with Andersen. As Respondent Laborers admits that its picket line was established in furtherance of its dispute with Andersen, and that it had no dispute with Herrman's, it is apparent that Gooden was acting as an agent of Respondent Hoisting Engineers in such a way as to further Respondent Laborers objectives by enmeshing Herr- man's, a neutral, in Respondent Laborers dispute with Andersen for an object proscribed by Section 8(b)(4)(B) of the Act. Accordingly, we find that Respondent Hoisting Engineers violated Section 8(b)(4)(ii)(B) by the above conduct of Gooden. Under the above circumstances, and because Gooden ordered Bennett off the job and thus induced an employee of Herrman's to quit work at the jobsite picketed by Respondent Laborers, Res- pondent Hoisting Engineers also violated Section 8(b)(4)(i)(B). Furthermore, because such inducement was successful, it had the effect of restraining and coercing Herrman's in violation of Section 8(b)(4)(ii)(B). General Teamsters, Warehouse and Dairy Employees Union Local No. 126 affiliated with the International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America (Ready Mixed Concrete, Inc.), 200 NLRB No. 41, at fn. 6. 3. The third question which we must resolve is whether Respondent Laborers was responsible for Gooden's conduct and thus also violated Section 8(b)(4)(i) and (ii)(B) of the Act.4 This question is more difficult to resolve. The Board has held that where ( 1) agents of three building trades unions proceeded together in a car to a jobsite of a neutral subcontractor, (2) the three were aware prior to such visit that a member of one of the unions was working there and had been told by one of the three representatives whose union had a dispute with the contractor, that he should quit work there , and (3 ) two of the union agents remained silent when the other in their presence told an officer of the neutral on two occasions at the jobsite that "they" were going to shut down the job unless the neutral stopped doing business with the primary contractor, these facts established that all three unions were acting in concert and thus all committed an 8(b)(4)(ii)(B) violation . Local /50, International Union of Operating Engineers, AFL-CIO and its Agent A. J. Meagher (Frisch Contracting Service Company, Inc ), 149 NLRB 29. The instant case is distinguishable . Here, Dollen testified that he had no advance or subsequent knowledge of the purpose of Gooden's visitation at the two jobsites. He testified that he rode to several jobsites with Good and Gooden solely for the purpose of making a routine check of those Jobsites Dock standards (92 NLRB 547) 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in accordance with a customary practice. He testified further that he had not overheard what transpired between Respondent's officials and Bennett, since he did not get out of the car at the first jobsite and since he had been some distance away from the second jobsite talking with one of his members when the second conversation with Bennett occurred. Dollen testified that he was not aware of the purpose of Gooden's following of Bennett to the second jobsite. Dollen also testified that Respondent Laborers had never asked Respondent Hoisting Engineers to support its picketing. Dollen's testimony stands uncontradicted on the record. Thus the only evidence to connect the Respondent Laborers with Gooden's conduct is Dollen's accompanying Good and Gooden in Good's car, which is explainable by Dollen's uncon- tradicted testimony that Dollen was making a customary and routine visit to several jobsites at which laborers, with whom Dollen wanted to converse, were present. While the circumstances are suspicious, we cannot properly infer, as the General Counsel urges us to do, in the face of Dollen's uncontradicted testimony to the contrary, that Dollen was aware of the purpose and contents of Gooden's conversations with Bennett, nor, therefore, that he condoned such conduct by his silence. As we find that General Counsel has failed to establish on this record that Gooden was acting as Respondent Laborers agent, or that Respondent Laborers agent, Dollen, committed any improper acts himself, we cannot find that the record will support a finding of an 8(b)(4)(B) violation by Laborers. Accordingly, we shall dismiss the 8(b)(4)(B) complaint against the Respondent Laborers. IV. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Hoisting Engineers set forth in section III, above, occurring in connec- tion with the operations of Andersen and Herrman's described 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent Hoisting Engineers has engaged and is engaging in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, we make the following: CONCLUSIONS OF LAW 1. Respondents are, and have been at all times material, labor organizations within the meaning of Sections 2(5) and 8(b) of the Act. 2. Andersen and Herrman's are employers within the meaning of Section 2(2) and are engaged in commerce or an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. 3. By inducing and encouraging individuals employed by Herrman's, a neutral subcontractor, at a construction project to refuse to work or to perform services in the course of their employment with an object of forcing Herrman's, a person engaged in commerce or in an industry affecting commerce, to cease doing business with Andersen, a person engaged in commerce or in an industry affecting commerce, Respondent Hoisting Engineers has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i)(B) of the Act. 4. By threatening, coercing, and restraining Herr- man's, a person engaged in commerce or in an industry affecting commerce, by conduct found above, with an object of forcing Herrman's to cease doing business with Andersen, a person engaged in commerce or in an industry affecting commerce, Respondent Hoisting Engineers engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the Act. 5. By threatening employee Bennett with physical violence and other reprisals, Respondent Hoisting Engineers restrained and coerced an employee in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(b)(1)(A). 6. The foregoing unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 7. Respondent Laborers have committed no violations of the Act, as alleged. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Hoisting Engineers Local Union 101, Topeka, Kansas, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Inducing and encouraging any individual employed by Herrman's Excavating, Inc., or by any other person engaged in commerce or in an industry affecting commerce, to refuse to work or render HOISTING ENGINEERS LOCAL UNION 101 63 services in the course of his employment, and from threatening, coercing, and restraining Herrman's or any other person engaged in commerce or in an industry affecting commerce where, in either case, an object thereof is to force or require Herrman's or such other person to cease doing business with R. D. Andersen Construction Co., Inc. (b) Threatening any employee of Herrman's Excavating. Inc.. with physical violence or other reprisals because he chooses to work behind a picket line. (c) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix. Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by an authorized representative of Respondent Hoisting Engineers Local Union 101, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall he taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish said Regional Director signed copies of the aforesaid notice for posting by Herrman's Excavating Co.. Inc., and R. D. Andersen Construc- tion Co., Inc., if they are willing, at places where they customarily post notices to their employees. (c) Notify said Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint that Respondent Laborers violated Sec- tion 8(b)(4)(B) of the Act be, and they hereby are, dismissed. 5 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 No1Ic'i. To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BO&RD An Agency of the United States Government We hereby notify our members and all employees that: WE WILL NOT induce or encourage any individ- ual employed by Herrman's Excavating, Inc., or by any other person, to refuse to work or render services in the course of his employment, nor will we threaten, coerce, or restrain Herrman's Exca- vating, Inc., or any other person, where, in either case, an object thereof is to force or require Herrman's or such other person to cease doing business with R. D. Andersen Construction Co., Inc. WE WILL NOT threaten any employee with physical violence or other reprisals because he chooses to work behind a picket line. WE WILL NOC in any like or related manner restrain or coerce employees in the exercise of their rights under the National Labor Relations Act. HOISTING ENGINEERS LOCAL UNION 101 (Labor Organization) 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 compli- ance with its provisions may be directed to the Board's Office, 616-Two Gateway Center, Fourth at State, Kansas City, Kansas 64101, Telephone 816-374-4518.