Sheet Metal Workers' Local 80

1 George Respondent W. Sise & br~ef CHAIRMAN PENELLO 3(b) l q c ) ' Admin~s- w~th credib~lity WaN Producrs. Inc., (1950). F.2d 1951). exam~ned ALMIRA consolidat- Ing & jobsite Westland jobsite $50,000 & 2(2), (6), 11. 2(5) 111. agree- 4 SHEET METAL WORKERS LOCAL 80 Sheet Metal Workers Local 80, Sheet Metal Workers' International Association, AFL-CIO and d/b/a Sise Heating Cooling Company. Cases 7-CC-9 18 and 7-CC-967 May 15, 1978 DECISION A N D ORDER BY FANNING AND MEMBERS AND TRUESDALE On February 8, 1978, Administrative Law Judge Almira A. Stevenson issued the attached Decision in this proceeding. Thereafter. Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 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 conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Sheet Metal Workers Local 80, Sheet Metal Workers' International Associ- ation, AFL-CIO, its officers, agents, and representa- tives, shall take the action set forth in the said recom- mended Order. Respondent excepts to certain credibility findings made by the trative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions respect to unless the clear preponderance of all the relevant evidence convinces us that the reso- lutions are incorrect. Standard Dry 91 NLRB 544 enfd. 188 362 (C.A. 3, We have carefully the record and find no basis for reversing her findings. DECISION ABBOT STEVENSON. Administrative Law Judge: These consolidated cases were heard in Detroit, Michigan, December 5, 1977. The charge in Case 7-CC-918 was filed July 22, 1976, and served on the Respondent Union July 23, 1976; the charge in Case 7-CC-967 was filed October 3, 1977, and served October 4, 1977. An order cases, consolidated complaint, and notice of hearing was issued October 11, 1977, and was duly answered by the Union. Upon the entire record, including my observation of the demeanor of witnesses, and after due consideration of the arguments of counsel and the filed by the Respondent Union, I make the following: I. JURISDICTION Charles R. Otto is an individual proprietor doing busi- ness as Charles Otto Builder, with an office and principal place of business in Mt. Clemens, Michigan. He is a gener- al contractor engaged in the Detroit Metropolitan area in the construction of homes, apartment buildings, and com- mercial structures. George W. Sise doing business as Sise Heating Cool- ing Company, the Charging Party, is an individual propri- etor engaged in the installation and servicing of heating and cooling units in commercial and residential buildings. His office and principal place of business is in East Detroit, Michigan. Charles Otto Builder has been engaged as the general contractor in the construction of an apartment house proj- ect in Harrison Township, Michigan, and a shopping cen- ter in Westland, Michigan. The Charging Party, and other contractors, performed subcontract work at the Harrison Township in 1976 and the in 1977. The parties stipulated that in each of the years ending July 15, 1976, and December 31, 1976, the Charging Party engaged in interstate commerce on the basis of inflow. The record shows that the Charging Party em- ployed at least three employees during the periods material herein. Accordingly, I find that the Charging Party, George W. Sise d/b/a Sise Heating Cooling Company is an employer and a person engaged in commerce or in an in- dustry affecting commerce within the meaning of Section and (7) of the National Labor Relations Act, as amended. LABOR ORGANIZATION The Respondent Union is a labor organization within the meaning of Section of the Act. UNFAIR LABOR PRACTICES A. Settlement Agreement Case 7-CC-918 was the subject of a settlement agree- ment, containing a nonadmissions clause, entered into by the Respondent Union and the Charging Party Sise Heat- ing & Cooling Company and approved by the Regional Director November 8, 1976. That case was subsequently closed on compliance by the Regional Director, and the United States District Court for the Eastern District of Michigan, on February 10, 1977, issued an order dismiss- ing proceeding for temporary injunction. On October 1 I, 1977, the Regional Director, in the complaint and notice of hearing herein, vacated and set aside the settlement litigable wlth 7-CC-967; com- mittin$ di~turbed,~ jobsite jobsite 8(b)(4)(i) (ii)(B) Westland 8(b)(4)(i) (ii)(B) (1944). Utrad Corporalion, (1970). ' Calihrnia Cauncil oj Hodcarrierr of AFL-CIO, el a/. Sr.. Indi~~rduul, d / b / a Joreph's Landscaping 154 F.2d 721 (Laurens 172 2019. & Westland 4:30 & left.' July 80." follow^:^ good 1 & ! credlted of conversation Otto aff~rmed vaned wlthin until Slse testifled. corroborat~on of 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. The Respondent Union contends that that case (I) is not because the Union has complied its terms, as attested to by the Regional Director's action clos- ing the case on compliance and the court's dismissal of the temporary restraining order, and because over a year elapsed between the alleged presettlement violation and the alleged post settlement violation covered by the charge in Case and (2) in the alternative, evidence re- garding the old alleged violation is not relevant in de- termining the Respondent Union's object in the course of the new alleged violation because of the passage of time and changed circumstances. I find no merit in these con- tentions. The Regional Director's authority to set aside a settle- ment agreement upon a party's violation thereof by lished. subsequent unfair labor practices is well estab- Although the Board has indicated there may be some time limit beyond which settlement agreements will not be I do not believe the Board has ever held that the mere closing of a case on compliance, the dismissal of a temporary injunction, or the passage of about 14 months holds a party harmless from its commitments as- sumed in its settlement agreement. I therefore find that the Regional Director's action in vacating and setting aside the agreement was reasonable, and within the scope of his au- thority. As for the Respondent's second contention, it is clear that evidence regarding presettlement conduct is admissi- ble and relevant, although not determinative, to show the Respondent's motive or object in connection with its post- settlement conduct alleged to be an unfair labor practice? B. Issues I. Did the Respondent Union picket the Harrison Township on and after July 20, 1976, and threaten Charles Otto Builder on July 22, 1976, thereby inducing employees of Charles Otto Builder and other subcontrac- tors on the to cease work, with an object of forcing Charles Otto Builder and other subcontractors on the job- site to cease doing business with Sise Heating & Cooling Company in violation of Section and of the Act? 2. Did the Respondent Union picket the job- site on and after September 30, 1977 with the same result and with the same object, in violation of Section and of the Act? As indicated, Charles Otto Builder was the general con- tractor of an apartment house project at Harrison Town- ' The Wallace Corporation v. N.L.R.B.. 323 U.S. 248 'See 185 NLRB 434, 441 where a 5-year-old settlement agreement was found too remote in the circumstances. Norrhern District and Common Laborers America, (Joseph Mohamed, an Service), NLRB 1384 (1965). enfd. 389 (C.A. 9. 1968); Mohasco Industries, Inc. Park Mill). NLRB 1968. Except where specifically discussed, the facts are undisputed. ship, Michigan, from about June until early November 1976, and of a shopping center project at Westland, Michi- gan, from May or June until November 1977. Charles Otto Builder subcontracted such work as bricklaying, plumbing, electric, cement, glass, and carpentry. Heating and cooling system work on both sites was subcontracted to the Charg- ing Party Sise Heating Cooling Company. The Respon- dent Union had no dispute with Charles Otto Builder nor, as far as the record shows, did it have any dispute with any of the subcontractors except the Charging Party, Sise. Sise is a nonunion employer, employing sheet metal workers. It began work at the Harrison Township site about July 12, 1976, and at the site around September 21 or 22. 1977. The Harrison Township site had two entrances, one on Shoreline Drive and one on South River Road. All employ- ees worked at the site from about 8 a.m. until p.m. About a week after Charging Party Sise began work, Mar- tin Tibbs, business representative of the Respondent Union, appeared at the site and inquired of Lonny Sise; son of the owner and employee of Sise Heating Cooling Company, whether he was affiliated with the Sheet Metal Workers Union. Sise said he was not. Tibbs asked the name of the Company and, when Sise gave him the name, Tibbs handed a business card to Sise and About 19, 1976, pickets appeared at both entrances with signs reading, "Notice to the Public, Sise Heating and Cooling does not pay the prevailing wages or fringes established for this area, Sheet Metal Workers International Association, Local The day after the pickets appeared, a conversation took place between Charles Otto and Martin Tibbs at the front entrance on South River Road. I credit Otto's version of the conversation, as I asked Tibbs how I could resolve this, is there anyway Sise could finish this job, or did I have to get a union contractor. Tibbs said the Heating and Cooling Bu- reau could recommend a lot of contractors. asked if it would be one who wouldn't rip me off and he said that they would probably give me a better price than Sise. I said, could Sise do it, and I would promise to use a union contractor next time, but Tibbs didn't answer. I said, I would talk it over with Sise and left. Charging Party Sise posted signs at the entrances, the sign on the side entrance at Shoreline Drive reading, "This gate reserved for Sise Heating Cooling employees and all other ones use front entrance"; and the sign at the front entrance on the South River Road reading, "Everyone but Sise Heating is to use this entrance." Based on the testimony of Tibbs who appeared to have a more precise recollecuon the than Sise. Charles his pretrial affidavit, made shortly after the con- versation took place. to this effect. The accounts given by Tibbs and by Otto Foreman Donald Houghton somewhat, but Tibbs' memory seemed to have dimmed, and Houghton conceded he was not present during the enure conversation. Although I believe Lonny Sise was earshot for at least part of the conversation. I do not believe Tibbs made a direct threat to picket until Sise got off the job or Otto got a union subcontractor. as In the absence of by the representauves the general contractor. I cannot credit Sise in this respect, although. in my opinion. as explained below, the effect was the same. WO IRKERS & 7-2&76 SlSE 430PM & 3:30 & Westland jobsite, & THIS SITE WESTLAND W I N G IN. STALLATION SAM IN WITH SlSE 7:30 7:45 2:30 3:30 ' corrobora!ive test~mony Lonny S ~ s e Don- rlJ polnt hr ~ncons~stent w~th Martln T~bbs' hc work budding ccnfined IIU) picketing T~bhs hlrur~ce Roth that del~vered. mater~als. i.e.. & Westland situs situs situs." Although h n n y Westland in-his-van, ~ i b b s Westland Sise's coverup S~se tlmes 13. dajtlrne LOCAL 80 SHEET METAL 43 On July 21, 1976, Sise Heating Cooling Company sent the following mailgram to the Respondent Union: YOU HEREBY NOTIFIED AS OF THE OBJECT OF YOUR PICK- ETING AT THE APARTMENT COMPLEX ON SOUTH RIVER ROAD IN HARRISON TOWNSHIP NAMELY THE HEATING AND COOLING COMPANY HAS BEEN ASSIGNED BY THE BUILDER TO WORKING AFTER EVENINGS AND ON WEEKENDS IF NECESSARY UNTIL FURTHER NOTICE IN ADDITION WE WlLL BE USING THE RESERVE GATE FOR ALL INSTANCES AND EXITS. From then until it completed work on the project in Sep- tember 1976, Sise Heating Cooling Company worked only during the periods specified in its mailgram. The pick- eting nevertheless continued for about 3 weeks, during the same hours as before, 8 a.m. until p.m. weekdays only, at both gates, and no one else worked on the project while the picketing continued. Sise Heating Cooling Company left no supplies, materials, tools, or equipment on the site while it was not present. The Respondent Union has not inquired of Sise concerning the wages, hours, or fringe ben- efits of its employees. At the a year or so later, Tibbs ap- peared shortly after Charging Party Sise began working there, asked Foreman Houghton who was doing the heat- ing and cooling, and Houghton told him Sise was doing it. A day or two afterwards, on September 30, 1977, pickets began picketing on the sidewalk in front of the building with signs reading, Notice to Public, Sise Heating Cooling does not have a labor agreement with Sheet Metal Workers Lo- cal 80. SMWIA. Local 80. On the same day, Charging Party Sise sent a mailgram to the Respondent to the following effect: NOTIFICATION IS IN REFERENCE TO THE CHARLES AUTO JOB LOCATED AT 7060 WAYNE ROAD MICHIGAN. THE SlSE HEATING AND COOLING COMPANY WHO IS THE OF THE HEATING AND COOLING SYSTEM WlLL ONLY BE WORKING THE FOLLOWING HOURS SATURDAY AND SUNDAY STARTING AT AND WEEK DAYS STARTING FROM 5PM AC- CORDANCE THE NATIONAL LABOR RELATIONS BOARD REG- ULATION. YOU WlLL BE EXPECTED TO CONFINE YOUR ACTIVITIES TO THOSE TIMES WHEN THE HEATING AND COOLING COMPA- NY IS ON THE JOB No reserve gate notices were posted at this site. The job shut down for about a week. Then Sise began working evenings and Saturdays only, as stated in the mail- gram. but the picketing continued from or a.m. until or p.m., as before. Pickets were present Sat- urdays, either walking or sitting in cars nearby, but not during weekday evenings. Charging Party Sise left no tools. supplies, materials. or equipment on the site after sending the mailgram excep! for some scrap metal.' Rased on substantially of and Houghton. I do not construe Charles Otto's testimony on tnis to overall theirs. testimony that saw duct on the floor in the ready to be installed was to the the began. September 30. Testimony of and picket Sise or took away, sheet metal and Lonny Sise visited the job on several occasions during daytime weekday hours and took pictures or sat in his van. Employees of other subcontractors subsequently began returning to work during regular daytime weekday hours, and about October 13, at Otto's request, Sise also resumed working regular hours. The pickets were withdrawn a week or so later. D. Conclusions The Respondent Union contends that the picketing which occurred at both sites conformed with the require- ment of Sailors' Union ojthe Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 (1950). was primary in nature, and therefore lawful. The record shows, however, that the picketing met only one of the Moore Dry Dock standards at both sites; the picket signs disclosed clearly that the Respondent's dispute was with the primary employer, Sise Heating Cooling Company. At the picketing also met another of the standards, which requires that it be limited to places reasonably close to the location of the of dispute. Thus, no reserve gate was set up for Sise employees at Westland, and the front of the building, where the pickets walked, was reasonably close to Sise. I find, however, that the standards were not met in any other respect. Thus, the picketing continued at the front entrance to the Harrison Township site despite the signs reserving that gate for non-Sise employees and reserving the side entrance for Sise employees only. Moreover. the picketing was not "strictly limited to times when the of dispute [was] located on the second- ary employer's premises," or at time when "the primary employer [was] engaged in its normal business at the Despite the mailgrams setting forth the times Sise employ- ees would be engaged at the site, the picketing continued at other times when, the facts establish, Sise employees were not working. one such employee, Sise, ap- peared at or near the site on several occasions during regular hours on weekdays, he only took pictures or sat and business representative conceded that no work was performed. 1 have also found that no Sise supplies, materials, tools, or equipment were left on the Harrison Township site, and that none were left on the site. other than scrap, after the day picketing be- gan. during periods when Sise employees were not work- ing. The above evidence of failure to meet most of the Board's standards is sufficient in my opinion to compel the conclusion that the Respondent Union was not pursuing a lawful objective. There is further support for the General Counsel's contention in this respect with regard to the Har- rison Township site in the signs which the pickets carried there proclaiming the Union's purported concern for failure to pay prevailing wages or fringe benefits. That the Union never asked what wages and fringe benefits Sise was paying indicates that the Union was not concerned about these matters but that they were merely a to dis- guise a different, unlawful, objective. that Roth observed a employee working I day. clearly referred lo after October when Sise resumed weekday work. Westland Westland jobsite jobsites & 8(b)(4)(i) (ii)(B) c~mplaint.~ meanlng 8(b)(4)(i) (ii)(B) 1qc) AFL- 6 Los Angeles & Construclion (1975), F.2d Lafoyerre Comlruction Counctl, (Texa- co, Inc.), (1969). enfd. F.2d Local ofJourneymen of'the Pipefitting ofthe & Inc.), 17 1 1 (1968); Amerrca, et the eiceptlons Sec. Natlonal Relat~ons f~ndings. hereln prov~ded In Sec. notice.I0 11s f~ndings. conclu~ions, that th~s 1s Un~ted Relat~ons Un~ted Nauonal Lahor Relat~ons & 44 DECISIONS OF NATIONAL Although the signs were changed for the pick- eting, and the pickets did appear at that site on Saturdays when only the Sise employees were working, these changes were not enough in my opinion to support the Union's contention of lawful primary picketing there in view of the preponderance of evidence to the contrary. Viewing the remarks Tibbs made to Charles Otto on July 20, 1976, in the entire context detailed above, I find that his responses to Otto's inquiries constituted an implied threat to continue picketing until Sise was removed from the job and replaced by a union subcontractor. On the basis of the foregoing evidence and the record as a whole, I conclude that the Respondent Union picketed the Harrison Township on and after July 20, 1976, threat- ened Charles Otto Builder July 20, 1976, and picketed the on and after September 30, 1977. thereby inducing employees of Charles Otto Builder and other sub- contractors on those to cease work, with an object of forcing Charles Otto Builder and other subcontractors to cease doing business with Sise Heating Cooling Com- pany, in violation of Section and of the Act, as alleged in the Having found that the Respondent Union has engaged in unfair labor practices within the of Section and of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative ac- tion including the posting of notices. Upon the basis of the foregoing findings of fact and con- clusions of law and upon the entire record, and pursuant to Section of the Act, I issue the following recom- mended: ORDER The Respondent Union, Sheet Metal Workers Local 80, Sheet Metal Workers' International Association, CIO, its officers, agents. and representatives, shall: 1. Cease and desist from engaging in, or inducing any individual employed by Charles Otto Builder or any other person engaged in commerce or in a business affecting Building Trades Council, AFL- CIO (Silver View Associates), 216 NLRB 307 affd. 530 1093 (C.A.D.C., 1976); Building and Trades AFL- CIO 176 NLRB 979 445 495 (C.A. 5, 1971); Plumbers Union No. 519, United Association and Apprentices Plumbing and Industry United States and Canada, AFL- CIO (H. L. Robertson Associates, NLRB 25 Northern Cali- fornia District Council of Hodcarriers and Common Laborers of AFL- CIO, al. (Joseph's Landscaping Service), supra. The cases to which the Respondent has called my attention are. in my opinion, quite different from facts in this case. In the event no are filed as provided by 102.46 of the Rules and Regulations of the Labor Board, the conclusions, and recommended Order shall, as LABOR RELATIONS BOARD commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials. or commodities, or to perform any services, or threatening, coercing, or restraining Charles Otto Builder or any other person engaged in commerce or in a business affecting commerce, with the object of forcing Charles Otto Builder or any other person to cease doing business with Sise Heat- ing & Cooling Company. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Post at its business office and meeting halls copies of the attached Copies of said notice, on forms pro- vided by the Regional Director for Region 7, after being duly signed by the Respondent Union's representative. shall be posted by the Respondent Union immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily post- ed. Reasonable steps shall be taken by the Respondent Union to insure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. 102.48 of the Rules and Regulations. be adopted by the Board and become and Order, and all objections thereto shall he deemed waived for all purposes. "'In the event Order enforced by a Judgment of a States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Board" shall read "Posted Pursuant to a Judgment of the States Court of Appeals Enforcing an Order of the Board." APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE W ILL NOT engage in, or induce any individual employed by Charles Otto builder or any other person engaged in commerce or in a business affecting com- merce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, trans- port. or otherwise handle or work on any goods, arti- cles, materials, or commodities, or to perform any ser- vices, or threaten, coerce, or restrain Charles Otto Builder or any other person engaged in commerce or in a business affecting commerce with the object of forcing Charles Otto Builder or any other person to cease doing business with Sise Heating Cooling Company.