Carpenters Local No. 2133

National Labor Relations Board - Board DecisionsApr 1, 1965

151 N.L.R.B. 1378 (N.L.R.B. 1965)

1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In sum , it is the position of the union that the employer has bargained in bad faith in violation of its duties under the Labor Management Relations Act as amended. You erroneously characterize the union position at the conclusion of the meeting of the 17th . The union inquired of the employer if it desired to set another date for a meeting, to which the employer replied that it was not interested in setting a future meeting, but would meet upon request . The union indicated that it would like time to consider the company position before setting a new meeting. I hope this will refresh your recollection regarding our last bargaining session. We request again that the employer rescind its unlawful changes in wages and conditions of employment and meet and discuss in good faith the terms of a new collective bar- gaining contract. Sincerely, C. M. Roseborough, DALLAS GENERAL DRIVERS, WAREHOUSEMEN & HELPERS LOCAL UNION 745 Carpenters Local No. 2133, United Brotherhood of Carpenters and Joiners of America , AFL-CIO; and Salem Building and Construction Trades Council , AFL-CIO and Cascade Em- ployers Association , Inc., For and On Behalf of Its Employer- Member , Leonard Ryan , Builder. Case No. 36-CP-21. April 1, 1965 DECISION AND ORDER On December 24, 1964, Trial Examiner David Karasick issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter the Respondents filed exceptions to the Trial Examiner's Decision 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 powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board adopts as its Order the Order recommended by 1 Respondent ' s motion to reopen the hearing to permit additional testimony on the question of jurisdiction Is hereby denied We base assertion of our jurisdiction in this case on the amount of interstate purchases made for the 34 units of the motel under con- struction at the time of the picketing, without relying on the purchases which will be made for the projected additional construction. 151 NLRB No. 133. CARPENTERS LOCAL NO. 2133 1379 the Trial Examiner and orders that Carpenters Local No. 2133, United Brotherhood of Carpenters and Joiners of America, AFL- CIO; and Salem Building and Construction Trades Council, AFL- CIO, their officers, representatives, and agents, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was heard before Trial Examiner David Karasick in Portland, Oregon, on May 27, 1964, upon a complaint alleging that Carpenters Local No. 2133, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, herein called the Respondent Carpenters, and Salem Building & Construction Trades Council, AFL- CIO, herein called the Respondent Council,' had engaged in unfair labor practices in violation of Section 8(b) (7) (C) of the National Labor Relations Act, as amended, herein called the Act .2 Upon the entire record, including consideration of briefs filed by each of the parties, and upon my observation of the demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF THE EMPLOYER Leonard V. Ryan, herein called Ryan, an individual, doing business under the name of Leonard Ryan, Builder, is, and has been for the past 9 years, engaged in residential and home construction in Salem, Oregon. Ryan also owns all of the stock of Swept Wing Motel, Inc., an Oregon corporation, herein called Swept Wing, and is in sole charge of its day-to-day operations, including labor relations. In view of Ryan's sole ownership and control over Swept Wing, I find that both constitute a single employer within the meaning of the Act. In the name of Swept Wing, Ryan owns 10 acres of land in Albany, Oregon. In January 1964 3 he began construction of a motel consisting of 34 units. This was his first commercial construction venture. From the time construction began in January until the time of the hearing on May 27, Ryan had purchased goods, supplies, and materials, for use in the construc- tion and furnishing of the motel, valued at $54,788 91, all of which were shipped from places located outside the State of Oregon directly to Ryan or to local suppliers within the State of Oregon from whom he in turn received them. The General Counsel contends that Ryan's operations are nonretail in character. The Respondent asserts, however, that, since Ryan intends to retain and operate the motel which he is now constructing, the appropriate jurisdictional standard to be applied is that of a retail enterprise. While it is true that Ryan does intend to operate the motel after it is completed, he is not yet engaged in that operation. At this point, he is engaged in construction of the motel, a different phase of business. His total activities therefore encompass both a retail enterprise in the building of residential homes and a nonretail enterprise in building the motel. That being so, the Board will assert jurisdiction if either its retail or nonretail jurisdictional standards are met .4 Since the direct and indirect inflow of goods and materials purchased by Ryan exceeds $50,000 annually, his operations are sufficient to meet the nonretail jurisdictional standard.5 The Respondents further assert, however, that, even if the nonretail jurisdictional standard is to be applied in this case, "only those items which have to do with the normal construction of a motel, as distinguished from the owners' furnishing of it, are to be considered in arriving at a total dollar amount of inflow" and that on this basis the minimum of $50,000 required for the assertion of jurisdiction would be lacking. I am unable to agree with this contention for I credit Ryan's testimony that a motel customarily is completely furnished by the builder, whether he intends to operate it, 'The Respondent Carpenters and the Respondent Council are herein collectively called the Respondents. 2 The complaint and amended complaint , issued April 13 and 17, 1964, respectively, are based upon a charge filed on March 6, 1964. 8 All dates hereafter refer to 1964 unless otherwise indicated. 4HHarry Tancreds, 137 NLRB 743 5 Siemon's Mailrong Service, 122 NLRB 81. 1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as in Ryan 's case, or sell it to another . The furniture and fixtures are thus to be regarded as a normal cost of construction .6 Accordingly, I find that Ryan is an employer engaged in commerce and in a business affecting commerce 7 within the meaning of Section 2 ( 6)and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED The Respondents are labor organizations within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES ALLEGED A. The facts As noted above, during the first week in January, Ryan began construction of the Swept Wing Motel in Albany, Oregon. He employed six carpenters and laborers who had previously worked for him in Salem, Oregon, to erect the basic structure. In addition, he hired subcontractors to perform the plumbing, plastering, electilcal, and other work necessary to complete the construction. Originally, his plans called for completion of the first 34 units of the motel by April 15 while construction of an additional 32 units and a restaurant was to be completed by June 15.8 Early in January, shortly after construction began, Carl Krutsinger, business representative and financial secretary of the Respondent Carpenters, stopped at the trailer house which Ryan was using as his office He introduced himself and asked Ryan how he was going to handle the job. Ryan replied that he had been building houses in Salem for about 9 years where he had been using nonunion carpenters and various subcontractors, about half of whom were union, and that he planned to use the same employees and subcontractors in Albany. Thereafter, on the morning of February 12, a picket appeared at the jobsite. He carried a sign bearing the following legend • 9 RYAN-SIMMONS Are Doing this work NON-UNION No dispute with Any Other Contr BLDG. TRADES CCL SALEM The picketing was authorized by and was carried on in the name of the Respondent Council upon the request of the Respondent Carpenters. among other unions. Two employees of the plumbing subcontractor who were working at the time the picket first appeared walked off the job. Before doing so, they told Ryan to see about getting the picket taken off so that they could go back to work. Approximately a week after the picketing began, Ryan went to the Labor Temple in Salem and spoke to Charles Westergard, secretary of the Respondent Council After introducing himself, Ryan told Westergard that he was building the Swept Wing Motel in Albany, that he had been building houses in Salem for about 9 years. that the home- building business in that community was generally nonunion but that Ryan's subcon- tractors were usually union Ryan further stated that he would like to build the motel in Albany with the same men and subcontractors he had used in Salem. Westergard stated that he understood the problem and would see what he could do about removing the picket. Thereafter, Ryan tried without success on several occasions to reach Westergard by telephone. About a week after his first visit, Ryan again went to Westergard's of- fice and on this occasion spoke to an unidentified man who informed him that no decision had been reached about the picket but that there was going to be a 6 Testimony by the business representative of the Respondent Carpenters that to his knowledge arrangements for the additions which had been built on two existing motels in the area had in each instance provided that the costs of construction were borne by the contractor and those of fnrnishines were borne by the motel operators does not detract from the foregoing testimony of Ryan both because the two instances referred to dealt with construction added to existing motels which were already in operation and because, without more, this testimony indicates merely the fact that there were exceptions to the customary practice in the industry, as testified to by Ryan. 7 S At Kisner, et at, d/b/a S H. Eisner and Sons, 131 NLRB 1196 8 Because of the picketing which occurred, as related hereafter, the first 34 units of the motel were not fully completed at the time of the hearing on May 27. s When the Respondents learned that Simmons had no connection with the project, his name was removed from the sign CARPENTERS LOCAL NO. 2133 1381 meeting between Krutsinger and the secretary of the Painters local in Albany the next day at noon. It was agreed that Ryan would meet these men at noon on the follow- ing day at the jobsite. The next day at noon, Ryan met the representative of the Painters local. Neither Krutsinger nor Westergard appeared, however. Later that day, which the testimony establishes was about February 26, Ryan went to Krutsinger's office. He asked what Krutsinger wanted him to do. Krutsinger replied that he wanted Ryan to sign a contract. Ryan again referred to the fact that he was engaged in business in Salem where homebuilding was generally nonunion. Krutsinger replied that he would let Ryan sign a short-form contract.10 Ryan replied that he did not see how this would help. Krutsinger then suggested that perhaps Ryan could sign a contract in Albany and not in Salem. Ryan answered that he did not think this would help either. Krutsinger finally stated that he was going to a meeting that night in Salem and would talk to Westergard and the Respondent Council. He also told Ryan that, in the event they permitted the job to proceed, the restaurant and the rest of the motel units would have to be union. About March 1 Ryan consulted Alfred P Blair, manager of the Cascade Employers Association, Inc. Blair called Krutsinger and spoke to him while Ryan listened on an extension telephone. Blair asked Krutsinger what he wanted Ryan to do at the Swept Wing Motel. Krutsinger stated that he could not turn his back on the job and that he wanted Ryan to sign a contract. Blair took the position that the homebuilding business in Salem operated under nonunion conditions, that Ryan had to compete on that basis and therefore could not sign a contract since he could not operate under union conditions in Albany and nonunion conditions in Salem. Krutsinger stated, however, that Ryan would have to sign a union contract in order to get rid of the picket so that he could use the union subcontractors he wanted on the job.11 The next day Blair called Westergard and asked him if the Respondent Council had reviewed the case with regard to allowing the union subcontractors to continue on the job Westergard said this was something lie would have to discuss with the whole council which he would do at the first of the week Blair requested that Westergard call and inform him what decision had been reached. He did not, however, hear from Westergard further following this conversation. The picketing, which had commenced on February 12, ended on April 22 and was not thereafter resumed 12 The answer of the Respondents admits the allegations of the amended complaint that the picketing was conducted for more than 30 days without a petition under Section 9 (c) of the Act having been filed. After Blair had spoken to Krutsinger, Ryan notified Clarence Bishop, to whom he was subcontracting the electrical work, that Bishop would have to begin the electrical work or Ryan would be compelled to hire a nonunion subcontractor. Bishop said he could not work on the job while the picket was there. He thereupon called Jack Schiller, business agent of the Electrical Workers Union in Salem, and spoke to him in Ryan's presence. He told Schiller what Ryan had said to him and tried to induce Schiller to remove the picket so that he could send his employees to work. Schiller also spoke to Ryan, whom he knew, saying he had been told by Bishop that Ryan had said that Bishop would have to perform the work or Ryan would secure a nonunion subcontractor. Ryan said that he did not know what else to do and Schiller's response was "You wouldn't do that to me, would you?" After both men had spoken to Schiller, Bishop said that he could not come to work on Ryan's job because at that time there was no hope of the picket leaving. After the electrical and plumbing sub- contractors refused to send their employees to the project because of the presence of the picket, Ryan hired other subcontractors who were not under union agreement to perform the plumbing and electrical work. Thereafter, Blair sought unsuccess- fully to induce the business agent of the Plasterers Union to permit the employees of the plastering subcontractor to work on the job That phase of the work was delayed for approximately a month awaiting the outcome of proceedings in the Federal district court. 10I-rutsinger denied that he had at any time asked Ryan to sign a contract. I credit the testimony of Ryan in this respect both as a result of my observation of the demeanor of the witnesses and because I believe that his version of the conversation is inheiently more plausible in light of the record as a whole "As noted above, I do not credit Krutsinger's denial that lie had demanded that Ryan sign a union contract. 12 Apparently the picketing ceased as the result of an injunction issued by the Federal district court The record refers to a trial conducted in the Federal distilet court on April 14 but does not otherwise identify or describe the proceedings 1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Concluding findings The Respondents deny that the picketing was unlawful , as the General Counsel con- tends. They assert that they were picketing in order to publicize the fact that Ryan was nonunion and did not observe area standards with respect to wage rates and other benefits. In this connection , Krutsinger and Westergard testified that the union wage rates for carpenters and laborers exceeded those paid by Ryan and that in addition the union contracts covering employees in those classifications provided for health, welfare, and pension benefits which Ryan had testified he did not provide. Both Krutsinger and Westergard admitted , however, that they had never asked Ryan before the picketing began what wage rates he was paying his employees ,13 and there is no showing that the Respondents had any knowledge of either the wage rates or other benefits received by Ryan's employees prior to the appearance of the picket at the jobsite . In addition , the legend on the picket sign referred to the fact that Ryan was nonunion but no reference was made to area standards , wage rates , or other benefits. In light of these facts , I am unconvinced by the further testimony of Krut- singer and Westergard that, if Ryan had informed them he would meet the minimum union wage scale and fringe benefits for carpenters and laborers , the Respondents would have terminated the picketing. Contrary to the foregoing assertions of the Respondents and according to the credited testimony of Ryan , Krutsinger stated, about February 26, that he wanted Ryan to sign a union contract and he repeated this demand in his conversation with Blair on March 1. On the basis of this evidence , it is clear that an object of the picketing was to force Ryan to recognize the Respondent Carpenters as the representa- tive of his employees.14 The question remains, however, whether the picketing , although for a recognitional object, and although conducted for more than 30 days without a representation peti- tion having been filed, was nevertheless permissible by reason of the second proviso to Section 8(b) (7) (C ). In order to meet the requirements of that proviso , recogni- fional or organizational picketing must , among other things, be for the purpose of informing the public . To achieve that purpose , a union is free "to appeal to the unor- ganized public for spontaneous popular pressure upon an employer" but it is not free to invoke "pressure by organized labor groups or members of unions , as such." 15 The first instance illustrates "signal" picketing ; the second , picketing where the pur- pose is that of "publicity." 16 In this case , the evidence indicates that the purpose of the picketing was not to inform and seek the support of the public, but , instead, was a device to incite unions and their members to retaliatory action. The picketing was not for the limited purpose of protesting the nonunion activities of Ryan , although the legend on the picket sign so stated ; it extended beyond that and was intended to deprive him of services upon which he was dependent , even though those services were performed under union contracts . Neither the plumbing, the electrical , nor the plastering sub- contractors hired by Ryan felt free to work on the job while the picketing continued, even though the employees of each were union members.17 Both of the Respondents were fully aware of this. Thus, Krutsinger told Blair about March 1 that if Ryan wanted to use union subcontractors on the job, he would have to get rid of the picket by signing a union contract . And on the following day , when Blair spoke to Wester- gard about permitting the union contractors to continue on Ryan 's project, Westergard said that the matter would have to be discussed with the Respondent Council. The refusal of the subcontractors to work on the job was not a voluntary choice on their part but was induced by the presence of the picket and the fear of retaliation from the respective unions with which they held contracts . No other reason appears to explain their refusal to perform in this instance when they had willingly done is According to the testimony of Westergard , Ryan had volunteered to him what he was paying his employees but this was on an undisclosed date after the picketing had begun. 14I attach no significance to the fact that, once the picketing commenced , the Respond- ents did not approach or otherwise attempt to communicate with Ryan and all overtures thereafter were made by him or by Blair on his behalf. 15 N.L.R B. v. Local 3 , International Brotherhood of Electrical Workers , AFL-CIO (Jack Picoult ), 317 F 2d 193 (C.A 2) remanding 137 NLRB 1401 ; Leonard Sinitley at at, d/b/a Crown Cafeteria v N.L R B., 827 F 2d 351 (C A. 9) '° N L R.B. V. Local 3, etc., .supra . See also Jack Picoult, at at., d/b/a Jack Picoult, 144 NLRB 5. 17 The electrical and plastering subcontractors attempted unsuccessfully to secure per- mission from the officials of each of those unions to proceed with work on the project. CARPENTERS LOCAL NO. 2133 1383 business with Ryan on prior occasions. Here the picketing was not "designed to influence members of the unorganized public, as individuals" but instead was aimed at "organized labor groups" which "would impose economic sanctions upon the employer." 18 Accordingly, I find that the picketing in this case was not privileged by virtue of the second proviso, irrespective of its truthfulness or its actual effect upon deliveries or services 19 and that it therefore violated Section 8(b) (7) (C) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section 111, above, occurring in con- nection with the operations of the employer, described in section 1, above, have a close, intimate, and substantial relation 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 the Respondents have engaged in unfair labor practices, it will be recommended that they 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 upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Ryan and Swept Wing constitute a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondents are labor organizations within the meaning of Section 2(5) of the Act. 3. By picketing the Swept Wing Motel project at Albany, Oregon, with an object of forcing or requiring Ryan to recognize and bargain collectively with the Respond- ent Carpenters as the representative of his employees, although the Respondent Car- penters has not been certified as the representative of any such employees and has not since the inception of such picketing within a reasonable period of time filed a peti- tion under Section 9(c) of the Act, the Respondents have committed 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 affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby recommended that Carpenters Local No. 2133, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, Albany, Oregon; and Salem Building & Construction Trades Council, AFL-CIO, Salem, Oregon, their officers, representatives, and agents, shall: 1. Cease and desist from picketing or causing to be picketed or threatening to picket the Swept Wing Motel jobsite or Leonard V. Ryan where an object thereof is forcing or requiring Ryan to recognize or bargain with the Respondent Carpenters, or any other labor organization, as the representative of his employees, in violation of Section 8(b) (7) (C) of the Act. 2 Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Post at their business offices and meeting halls copies of the attached notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional 'B N L R B. v. Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Jack Picoult ), supra. 19 Even if the picketing here were regarded as truthful and informational in purpose, it would nevertheless be violative of Section 8(b)(7)(C) for It had the effect, as above stated, of inducing the two employees of the plumbing subcontractor to leave their jobs and disrupted and interfered with continuance of work on the project 20 In the event that this Recommended Order Is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director for Region 19, shall be duly signed and posted by the Respondents immedi- ately upon receipt thereof and be maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 19 signed copies of the aforemen- tioned notice for posting by Leonard V. Ryan, at his election. Copies of said notices, to be furnished by the Regional Director for Region 19, shall, after being signed by the Respondents, be forthwith returned to the said Regional Director for disposition. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of receipt of this Decision and Recommended Order, what steps have been taken in compliance therewith.21 21 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF LEONARD V. RYAN OR SWEPT WING MOTEL, INC. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT picket or cause to be picketed or threaten to picket the Swept Wing Motel jobsite or Leonard V. Ryan where an object thereof is forcing or requiring Leonard V. Ryan to recognize or bargain with Carpenters Local No. 2133, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other labor organization, as the representative of his employees, in violation of Section 8(b) (7) (C) of the Act. CARPENTERS LOCAL No. 2133, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) SALEM BUILDING & CONSTRUCTION TRADES COUNCIL, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) 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. Interested persons may communicate directly with the Board's Regional Office, 327 Logan Building, Seattle, Washington, Telephone No. 682-4553, if they have any question concerning this notice or compliance with its provisions. Ralph Wells & Co. and International Association of Machinists, AFL-CIO Ralph Wells & Co. and American Federation of Grain Millers, AFL-CIO, Petitioner and International Association of Machin- ists, AFL-CIO. Cases Nos. 38-CA-6 (formerly 13-CA-5917) and 38-RC-1 (formerly 13-RC-9604). April 1, 1965 DECISION, ORDER, AND DIRECTION OF THIRD ELECTION On September 11, 1964, Trial Examiner Sidney D. Goldberg issued his Decision in the above-entitled proceeding, finding that the Re- 151 NLRB No. 131.