Teamsters Local 456 (Construction City Corp.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 456, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Construction City Corporation. Case 2-CP- 577 November 11, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On July 15, 1977, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting 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 brief 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 Respondent, Local 456, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE MAX ROSENBERG, Administrative Law Judge: This proceeding came to hearing before me in New York City, New York, on June 13, 1977, upon a complaint filed by the General Counsel of the National Labor Relations Board and an answer filed in opposition thereto by Local 456, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Respondent.' At issue is whether Respondent violated Section 8(b)(7)(C) of the National Labor Relations Act, as amended, by engaging in picketing at the premises of Construction City Corporation, herein called CCC, under circumstances to be detailed hereinafter. Briefs have been received from the General Counsel and Respondent which have been duly considered. i The complaint, which issued on May 12, 1977, is based upon a charge which was filed on April 26, 1977, and served on April 27. 1977. 2 The parties stipulated to the facts recorded in an injunction suit brought by the General Counsel under Sec. 10(1) of the Act before the Honorable John M. Cannella. U.S. District Judge for the Southern District 233 NLRB No. 75 Upon the entire record made in this proceeding,2 including my observation of the demeanor of the only witness summoned, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Construction City Corporation is a New York corpora- tion which maintains an office and place of business in Mamaroneck, New York, where it is engaged in the wholesale and retail sale and distribution of building and construction supplies. During the annual period material to this proceeding, CCC, in the course and conduct of its business operations, derived gross revenues therefrom in excess of $500,000. During the same period, CCC pur- chased and caused to be transported and delivered to its place of business building and construction supplies and other goods and materials valued in excess of $500,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business in interstate commerce directly from States of the United States other than the State of New York. The complaint alleges, the answer admits, and I find that CCC is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. II1. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that, at all times since October 26, 1976, and continuing to date, Respondent has violated Section 8(b)(7)(C) of the Act by picketing the premises of CCC in Mamaroneck, New York, with an object of forcing and requiring CCC to recognize and bargain with it as the exclusive collective-bargaining representative of CCC's employees, and with the further object of forcing and requiring the employees of CCC to accept and select Respondent as their bargaining agent, during times when it was not currently certified as the representative of any of the employees of CCC, and without having filed a valid petition under Section 9(c) of the Act within a reasonable time from the commencement of such picketing seeking a Board election among CCC's employees. For its part, Respondent denies that its picketing harbored any of the objects banned by the Act. The facts which control this litigation are not in essential dispute and I find them to be as follows. Commencing on or about October 26, 1976, Respondent established a picket line at CCC's premises. The pickets carried signs bearing the legends "Construction City pays sub-standard wages" and "We don't wish to stop any deliveries or stop people from working." Jerome Zaccaria, CCC's vice president and general manager, testified in the of New York, on May 13. 1977, upon which I have also drawn in reaching my decision herein. On May 26, 1977, Judge Cannella issued a temporary restraining order against Respondent in that proceeding after finding reasonable cause to believe that its picketing was violative of Sec. 8(bX7)(C) of the Act. 418 LOCAL 456, TEAMSTERS injunction proceeding and I find that, when the picketing commenced, he had received no prior notice of such intended action from Respondent, nor had he been initially informed by Respondent that the object of the picketing was to force CCC to meet the prevailing area wage standards Upon observing the picket lines, Zaccaria telephoned his counsel, Peter Tomback, and together they ventured to engage in a three-way conversation with Respondent's counsel, John Harold, concerning the matter. In the course of the discussion, Harold advised Zaccaria and Tomback that "they [Respondent] were picketing us because of area standard." Zaccaria replied that "if we were not paying wages we would like to do something about it. I wanted to get the picketing out of there," to which Harold rejoined, "If you meet wages, we will take one sign down and put another sign up." Sometime after the conference call ended, Tomback visited the Board's Regional Office where, on November 17, 1976, he filed charges in Case 2-CC-1470 alleging that Respondent was engaging in recognitory picketing at CCC's premises in violation of Section 8(b)(4)(i) and (iiXB) of the Act. Simultaneously, Tomback lodged charges against Respon- dent asserting that the picketing was recognitional in character and violative of Section 8(bX7)(C). By letters dated December 27, 1976, these charges were dismissed for lack of merit by the Acting Regional Director for Region 2. Thereafter, on January 5, 1977, CCC once more brought charges against Respondent in Case 2-CC-1477 asserting that the latter had again engaged in activities proscribed under Section 8(bX4)(i) and (ii)(B), which charges were also dismissed by the Regional Office. CCC appealed these dismissals to the General Counsel, but the appeals were denied on March 4, 1977. Meanwhile, on February 28, 1977, CCC's board of directors met to evaluate the terms of a current collective- bargaining contract which Respondent had executed with other unionized employers in the area. At the meeting, the group decided to increase CCC's wage scale which thereupon exceeded the prevailing wage rates contained in Respondent's existing agreement, and these increases were made effective the first week in March 1977. A further decision was reached to create an employees' supplemental compensation plan, the cash fund of which exceeded Respondent's contractual plan by $7 per week, and this plan was made effective the first week in April 1977. In addition, the board of directors effected a number of other improvements in the terms and conditions of employment for its employees which brought them up to, or above, the area standards as set forth in Respondent's collective- bargaining contract. On April 20 and 22, 1977, CCC sent telegrams to Respondent informing that labor organization that it had met the prevailing area wage standards and inviting Respondent's officers to meet with management to verify its representations. This session was held on May 4, 1977. Attorney Harold and Secretary-Treasurer Arthur Revellese represented the Respondent, while Fritz Payne, CCC's bookkeeper, and Thomas McDonough, CCC's labor 3 See, e.g.. Houston Building and Construction Trades Council (Claude Everett Construction Company), 136 NLRB 321 (1962). 4 See Retail Clerks International A1sociarion. Local Union No. 899, AFL- counsel, appeared on behalf of the Company. McDonough opened the discussion by inviting Harold and Revellese to compare the wages which CCC paid with those provided under Respondent's collective-bargaining agreement. McDonough then launched into a description of CCC's newly instituted pension plan and its vacation benefits. At this juncture, both Harold and Revellese stated that they "weren't looking for recognition." As the dialogue contin- ued, Harold pounded the table and exclaimed that "unless you meet this [Respondent's] contract term for term then you are not meeting area standards." Following a recess, Harold announced that Respondent's representatives "were still not satisfied we were meeting area standards. They said you have to meet this contract point by point." Revellese interjected with the comment that "You don't have any seniority. You don't have job security. You don't have layoff programs." After explaining to Revellese that the Company did not lay off employees, McDonough asked Harold, "What is the area standards; what do you see to be the area standards?" Without saying a word, Harold responded simply by pointing to Respondent's contract in its totality. The conference thereupon ended. In defense of this proceeding, Respondent claims that the sole object throughout the course of its picketing at CCC's premises was to force the latter to meet the area wage standards set forth in its contract with unionized employers in the vicinity. To support this claim, Respon- dent points to the General Counsel's dismissal on March 4, 1977, of a series of charges filed by CCC alleging that its picketing possessed a recognitional objective, as well as its testimonial insistence regarding the May 4, 1977, meeting with CCC's representatives that it did not seek recognition by maintaining the picket line. I find no merit in Respondent's claim. Although the Board has long held that a labor organiza- tion may lawfully picket the premises of an employer where the object thereof is solely to cause him to meet prevailing wage standards in the area,3 that tribunal has also declared that, in gauging the actual purport of picketing, it would "scrutinize the conduct of a union in any given case to determine if its efforts were limited to seeking compliance with area standards, or if it appeared that the union was using such announced objective as a pretext to disguise an object of obtaining recognition and an agreement." 4 In striking a balance, the Board has observed that: [P]icketing does not fall within [the statutory proscrip- tion of Section 8(bX7XC)l if its only purpose is to publicize that the employer's wages and fringe benefits are below those established in the union's area contracts.... the Board has acknowledged a union's legitimate interest to protect its negotiated standards from being undermined by an employer operating under inferior conditions and therefore to picket such employer to induce him to conform with its standards. However, it is clear . . . that the area standards thus protected are only those related to labor costs which, if not observed, give the nonobserving employer an unfair CIO. Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 556, AFL-CIO; e al. (Slate-Mart, Inc., d/b a Giant Food), 166 NLRB 818,. 822 (1967), affd. 404 F.2d 855 (C.A. 9, 1968). 419 DECISIONS OF NATIONAL LABOR RELATIONS BOARD competitive advantage over those who pay the prevail- ing wage scales and fringe benefits. If, on the other hand, the purpose of the picketing also encompasses the acceptance by the picketed employer of noneco- nomic working conditions, such as seniority or a grievance procedure, or even the method of allocation of benefits, this might well betray the recognitional objective of the picketing ... .5 [Footnotes omitted.] Finally, the Board has noted that, while "it would appear reasonable that a union might picket for equal wages or for equivalent costs," nevertheless, when "it undertakes to go beyond this and to dictate what benefits are to be granted, it is attempting to engage in pro tanto bargaining to gain benefits for employees which it does not claim to represent." 6 In its answer to Respondent's picketing demand for comparability regarding area wage standards, CCC's board of directors met on February 28, 1977, and escalated its wage rates and pension benefits, and made improvements in other terms and conditions of employment for its employees, which brought them up to, or exceeded, the area standards contained in Respondent's collective-bar- gaining agreement. At a meeting held on May 4, 1977, between the parties, CCC's representatives provided Respondent with a list of the changes which had been made and invited their comparison with the existing labor contract. Although Respondent's Attorney Harold and Secretary-Treasurer Revellese insisted at this session that they "weren't looking for recognition," Revellese steadfast- ly maintained that "You (CCC] don't have any seniority. You don't have job security. You don't have layoff programs," and Harold proclaimed that "unless you meet this [Respondent's ] contract term for term then you are not meeting area standards." Harold further announced that he and Revellese "were still not satisfied we [CCC] were meeting area standards. They said you have to meet this contract point by point." When CCC's Attorney McDo- nough inquired at the conclusion of the meeting, "What is the area standards," Harold simply pointed to a copy of Respondent's existing collective-bargaining agreement. In sum, I find that Respondent's insistence at the May 4, 1977, meeting that the terms of its contract be met "point by point" by CCC went beyond the ambit of the privileged demand of payment of prevailing area wage standards and entered the statutorily proscribed realm of collective bargaining. I therefore conclude that, despite Respondent's protestations to the contrary and the legends on its picket signs, an object of the picketing was to force CCC to recognize and bargain with Respondent as the representa- tive of CCC's employees. As the Respondent was not the certified representative of those employees and failed to file a timely petition for an election under Section 9(c) of the Act, I conclude that it thereby violated Section 8(b)(7)(C) of that legislation.7 5 See Local Union No. 492, United Brotherhood of Carpenters and Joiners of America (Richard H. Lawrence), 215 N LR B 263. 267 (1974). 6 See Retail Clerks International Association, Local Union No 899 (State- Mart, Inc., d/b/a Giant Food), supra at 823-824. 7 Local Union No. 492, United Brotherhood of Carpenters and Joiners of America (Richard H. Laowrence). 215 NLRB 263 (1974). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close and intimate 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 thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in this case, I hereby make the following: CONCLUSIONS OF LAW 1. Construction City Corporation is an employer engaged in 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. By picketing the premises of Construction City Corporation, with an object of forcing or requiring that employer to recognize or bargain collectively with Respon- dent as the representative of its employees, without at any time possessing a certification as the representative of such employees, and without having filed a petition under Section 9(c) of the Act within 30 days from the commence- ment of said picketing, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER 8 The Respondent, Local 456, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from picketing or causing to be picketed, or threatening to picket or to cause to be picketed, the premises of Construction City Corporation in Mamaroneck, New York, under conditions prohibited by Section 8(b)(7)(C) of the Act, where an object thereof is to I 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 Reguilations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 420 LOCAL 456, TEAMSTERS force or require that Employer to recognize or bargain with Respondent as the representative of its employees. 2. Take the following affirmative action which I deem is necessary to effectuate the policies of the Act: (a) Post at its business and meeting halls copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and 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 ensure that said notices are not altered, defaced, or covered by any other material. (b) Forthwith mail to the Regional Director for Region 2 signed copies of the aforementioned notice for posting at Construction City Corporation's premises in places where notices to employees are customarily posted, if the Employer is willing to do so. (c) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 9 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 MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket or cause to be picketed, or threaten to picket or cause to be picketed, the premises of Construction City Corporation at Mamaroneck, New York, under conditions prohibited by Section 8(b)(7XC) of the National Labor Relations Act, as amended, where an object thereof is forcing or requiring Construction City Corporation to recognize or bargain with our Union as the representative of the Employer's employees. LOCAL 456, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA 421