Local 71, Sheetmetal Workers

856 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD Local 71, Sheetmetal Workers International Associa- tion, AFL-CIO (Wind Heating Co., Inc.) and Niagara County Sheetmetal Contractors & Roofing Association. Case 3-CC-869 May 8, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND KENNEDY On January 28, 1975, Administrative Law Judge Eu- gene E. Dixon issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions to the 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and con- clusions of the Administrative Law Judge and to adopt his recommended Order. 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 Administrative Law Judge and hereby orders that the Respondent, Local 71, Sheetmetal Workers Inter- national Association, AFL-CIO, Cheektowaga, New York, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to over- rule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F 2d 362 (CA. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Administrative Law Judge: This pro- ceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136); herein called the Act, was heard at Buffalo, New York, on December 19, 1974. The complaint, dated November 5, 1974, based upon duly served charges filed October 11, 1974, by Niagara County Sheetmetal Contractors& Roofing Association, was issued by the Regional Director for Region 3 (Buffalo, New York), on behalf of the General Counsel of the National Labor Rela- tions Board, herein called the General Counsel and the Board. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices violating Section 8(b)(4)(ii)(B) of the Act.' In its duly filed answer Respondent denied the commission of any unfair labor practice. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS INVOLVED At all times material Wind Heating Co., Inc., has been a corporation duly organized under and existing by virtue of the laws of the State 'of New York, and has maintained its principal office and place of business in the city of Niagara Falls, where it has been engaged as a heating and ventilation contractor. During the year preceding issuance of the com- plaint Wind in the course and conduct of its business opera- tions purchased, transferred, and delivered to its New York jobsites, goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported to said jobsites directly from States of the United States other than the State of New York. DMC, Building Corporation is a general contractor in New York State en- gaged in the building and construction industry. At all times material Wind and DMC have been employers engaged in commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. II THE LABOR ORGANIZATION At all times material Local 71, Sheetmetal Workers Inter- national Association, AFL-CIO, has been a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES For about 8 years Wind Heating Co., has been a member of the Niagara- County Sheetmetal Contractors & Roofing Association. Prior to August 1974, the Association had a bargaining relationship with Local 69, Sheetmetal Workers International Association, AFL-CIO. In August 1974 a Board election resulted in another union, the Niagara Fron- tier Roofers and Sheetmetal Association' being certified as the bargaining agent of the employees of the Contractors Association's members. A collective-bargaining agreement was entered into between the new union and the Contractors Association effective from October 1974 through October 1977. Since June 1974, DMC Building Corporation has been engaged in the construction-of Niagara Geriatrics Center in i This was an independent union which grew out of a split between members of Local 69. Those members who did not throw in with the new union began working out of Local 71, Sheetmetal Workers International Association, AFL-CIO, Respondent herein, and Local 69 ceased to exist 217 NLRB No. 144 LOCAL 71, SHEETMETAL WORKERS Niagara Falls. Edward Breidenstein, DMC's superintendent in charge of the job testified as follows: In late September during a conversation with Jack Kennedy, a plumbing con- tractor, and Fred Brown, business agent of the Plumber's union, Kennedy asked Breidenstein if anyone was doing the heating and ventilating on the Geriatrics Center job. Breiden- stein said yes, Charles Wind and Argy & Sons were doing or being considered for the work. Brown spoke up, "Neither one of them are union." Breidenstein said that his information was that they were union. Brown said he would contact some- one to get a hold of Breidenstein., The next morning John Williams, business agent for Local 71, called Breidenstein telling him he would drop off a list of signed contractors and added that anybody bidding on the job not on the list were considered nonunion. A short time later Williams arrived at the field office and presented Breidenstein with the list and told Breidenstein "Use anybody that is on the list" Breidenstein asked, "What happens if somebody is not on the list and gets awarded the contract?" Williams replied, "You are inviting trouble." Breidenstein asked what Williams meant by that and Williams answered, "We could picket the job. We are presently picketing Argy & Sons in Lockport." Breidenstein said that -he had to take the contrac- tors word that he was union, that it was not his job to check what union. In any event, Breidenstein said, he would "prob- ably look over the list . . . and . . . might pick somebody f r o m there... . Thereafter Breidenstein called Phillips Sheetmetal in Buf- falo about figuring the job. On the day that Phillips picked up the plans and specifications Breidenstein learned that Wind had definitely been awarded the job. So Breidenstein called his boss in New York to tell him about Phillips just having picked up the plans and specifications for the job Wind had been awarded. Breidenstein's boss said "Let him figure it anyway." About a week later (after Phillips had submitted a bid) Phillips called at the job and asked Breidenstein "How did we do? . . . did we get the job?" Breidenstein told him that Wind had gotten the job. Phillips left and in about 15 minutes Breidenstein got a call from Williams. Williams said he heard that Wind had gotten the job and went on to say, "I told you if you used him what would happen . . . if anybody other than those on that list were used on that job, that you would have trouble and now I'm going to see that you have trouble." Williams was using some foul language and Breidenstein said . . don't talk to me that way" and hung up. According to Williams' testimony his information from Brown of the Plumbers Union was that Breidenstein wanted to talk to him. So he called Breidenstein and "asked if he would like a list of (Local 71's) signatory contractors." Brei- denstein said he would so Williams took one to him. Williams denied that at this time there was any mention or threat of trouble or picketing regarding DMC's choice of a contractor on the heating and ventilating or any mention of Argy & Sons. About 3 weeks later, according to Williams' further testimony, Breidenstein called him and told about having called the International "to check to see if Wind Heating was union or not, and he said that he found out, that Wind Heat- ing was not union, and he said he was going, the job would go to a union contractor." Williams said; "that is good. It is better to have all union people on the job."2 857 Williams denied that the award of the job to Wind was mentioned or that any threat of any kind was made in that connection. On cross-examination Williams denied that the Plumbers' business agent had told him anything about who was bidding on the heating and ventilating on the DMC job or gave any explanation of why he was to call Breidenstein. From Williams' cross-examination it also appeared that Brei- denstein had not indicated that he would like to have a list of the Union's contractors. Williams simply told him that he was going to get one. Williams also denied knowing at the time what Wind or Argy was bidding the DMC job. Contrary to this direct examination Williams also denied,on cross that any discussion took place regarding the type of work involved on the job when he talked to Breidenstein.3 On cross Wil- liams also admitted that his union had been picketing Argy & Sons sometime in 1974 but claimed he could not recall when or where such picketing took place. There is no question in my mind that Breidenstein's tes- timony is more worthy of credence than Williams'. I so find. I also find that Williams' conduct was directed to DMC with an object to force or require DMC to cease doing business with Wind and thus violated Section 8(b)(4)(ii) (B) of the Act. CONCLUSIONS OF LAW 1. Wind Heating Co., Inc,, and DMC Building Corpora- tion are each engaged in commerce within the meaning of Sections 2(6) and (7) and 8(b)(4)(ii)(B) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening to picket the Geriatrics Center construc- tion site in Niagara Falls with an object of forcing or requir- ing DMC to cease doing business with Wind, Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act. THE REMEDY Having found that Local 71 has engaged in unfair labor practices warranting remedial order, I shall recommend that it cease and desist therefrom d take certain affirmative action designed to effectuate thb policies 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: ORDER4 Respondent Local 71, Sheetmetal Workers International Association, AFL-CIO, its officers, agents, and representa- tives, shall: 2 In his direct testimony Breidenstein had revealed that he had indeed called the International to find out if Wind was union 3 On direct he had testified that he had asked Breidenstein "about the ventilation and what type of work he had on the job." 4 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. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from threatening, coercing, or restrain- (c) Notify the Regional Director for Region 3, in writing, ing DMC Building Corporation with an object of forcing or within 20 days from the date of, this Order what steps Re- requiring DMC to cease doing business with Wind Heating spondent has taken to comply herewith. Co., Inc. 2. Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Post at its business office, union hall, or any other place where it customarily posts notices to its members, copies of the attached notice marked "Appendix."5 Copies of said no- tice, on forms provided by the Regional Director for Region 3, after being duly signed by an authorized representative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members 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) Furnish the Regional Director for Region 3, signed copies of such notice for posting, if willing, by DMC Building Corporation at its Niagara Geriatrics Center project and by Wind Heating Co., Inc., at its place of business in Niagara Falls, in places where notices to employees are customarily posted. 5 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." 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 DMC Building Corporation with an object of forcing or requir- ing it to cease doing business with Wind Heating Co., Inc. LOCAL 71, SHEETMETAL WORKERS INTERNATIONAL ASSOCIATION AFL-CIO