International Hod Carriers' Building, Etc.

National Labor Relations Board - Board Decisions

Jun 28, 1965

153 N.L.R.B. 659 (N.L.R.B. 1965)

INTERNATIONAL HOD CARRIERS' BUILDING, ETC. 659
International Hod Carriers ' Building & Common Laborers'
Union of America, Road & Heavy Construction , Local 1298,
AFL-CIO and Roman Stone Construction Company, and Kin-
dred Concrete Products , Inc.' and Sand, Gravel, Crushed Stone,
Ashes & Material Yard Local 1175, International Hod Carriers'
Building & Common Laborers ' Union of America , AFL-CIO,'
Party in Interest . Case No. 09-CP-6 (formerly 2-CP-285).
June 28,1965
DECISION AND ORDER
On March 5, 1965, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief, and the General Counsel filed a brief in support of
the Trial Examiner's Decision.
The National Labor Relations 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 .3 The Board
, Roman Stone Construction Company and Kindred Concrete Products , Inc., are collec-
tively referred to herein as the Company.
2 Referred to herein as Local 1175
8 We agree with the Trial Examiner 's ruling that Respondent was not entitled, in the
circumstances present here , to attack the validity of the Company 's recognition of Local
1175 by litigating Local 1175 's representative status as of the time recognition was
initially conferred in the early 1950 ' s, during the term of the subsisting agreement, or
when that contract was executed in July 1963 It is apparent that Local 1175' s repre-
sentative status could not be challenged directly in a proceeding under Section 8 or 9 of
the Act The subsisting contract between Local 1175 and the Company is lawful on its
face and was executed more than a year before Respondent 's picketing began As the
contract is of reasonable duration , the contract-bar rules would preclude interference with
the existing relationship by a representation petition under Section 9(c) ; see, e g, Paragon
Products Corporation, 134 NLRB 662 Further, Section 10(b) would bar an unfair labor
practice complaint attacking Local 1175' s representative status as of the time the present
contract was executed ; Local Lodge No. 1424 , International Association of Machinists v.
N L R B (Bryan Manufacturing Company), 362 U S 411 Finally, in accordance with
established principles, the validity of Local 1175's continued recognition would not be
affected by loss of majority within the 3-year term of the present agreement; Shamrock
Dairy, Inc., et al., 119 NLRB 998, 1002
Section 8 (b) (7) (A) which proscribes recogmtional picketing where another labor orga-
nization is lawfully recognized and a question concerning representation may not be
raised , was intended in part to promote stability in established bargaining relationships,
an interest also served both by the contract-bar rules and by Section 10(b). To hold,
under the conditions presented herein , that an incumbent union 's representative status
may be placed in issue as a defense to 8(b ) ( 7) (A) charges would permit a rival union to
accomplish by means of picketing what it could not achieve under established Board pro-
cedures. Such an application of 8(b) (7) (A) would offend the very policy which that
Section was designed to further . Consistent with the congressional scheme , it is our
opinion that the term "lawfully recognized" was meant to include all bargaining rel ition-
ships immune from attack under Sections 8 and 9 of the Act Accordingly, and as Local
1175's representative status could not be litigated under any other Se.,tion of the Act, we
agree with the Trial Examiner that such testimony could not be adduced in the 8(b) (7) (A)
proceeding for the purpose of collaterally attacking Local 1175's status as statutory bar-
gaining representative Cf Local 1199, Drug and Hospital Employees Union, et at.
(Janel Sales Corporation ), 136 NLRB 1564, 1568.
153 NLRB No. 58.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has considered the Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and hereby adopts the find-
ings,4 conclusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner , and orders
that Respondent , International Hod Carriers ' Building & Common
Laborers ' Union of America, Road & Heavy Construction , Local 1298,
AFL-CIO, Islip, New York, its officers , agents, and representatives,
shall take the action set forth in the Trial Examiner 's Recommended
Order 5
MEMBER ZAGORIA took no part in the consideration of the above Deci-
sion and Order.
4 Islip Is located in Nassau County rather than Suffolk County.
5 The telephone number for Region 29 , appearing at the bottom of the Appendix attached
to the Trial Examiner 's Decision , is amended to read: Telephone No. 596-5386.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on October 15, 1964, by an officer of the above-named employ-
ers, the General Counsel of the National Labor Relations Board, on October 30,
1964, issued his complaint and notice of hearing. Thereafter the above-named
Respondent Local 1298 filed an answer dated November 4, 1964. The complaint
alleges and the answer denies that the Respondent has engaged in and is engaging in
unfair labor practices in violation of Section 8(b) (7) (A) of the National Labor Rela-
tions Act, as amended.' Pursuant to notice, a hearing was held on January 11, 1965,
in New York, New York, before Trial Examiner C. W. Whittemore.
At the hearing all parties except Local 1175 were represented by counsel and were
afforded full opportunity to present evidence pertinent to the issues, to argue orally,
and to file briefs. Briefs have been received from General Counsel and the Respond-
ent Local 1298.
Upon the record thus made, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS CONCERNED
Both Roman and Kindred are New York corporations with office and place of
business at the same address in Islip, New York. Both are engaged in the manufac-
ture, sale, and distribution of concrete products: Roman of conduit and Kindred of
precast manhole boxes.
All officers, directors, and stockholders of both corporations are relatives, either
through blood or marriage. C. T. Montalbine is president of Kindred and vice presi-
dent of Roman and a director and stockholder in both. N. P. Montalbine is secretary-
treasurer, a director and a stockholder in both. N. F. Montalbine, C. T. Montalbine,
N. P. Montalbine, Ralph Gulmi, and Salvatore LaDolce actively supervise the oper-
ations of both Roman and Kindred.
IIn relevant substance, the section invoked states that it shall be an unfair labor
practice for a union to picket or threaten to picket any employer with an object of forc-
ing an employer to bargain with It as the representative of its employees, or forcing em-
ployees to accept it as their representative , where the employer has lawfully recognized
another labor organization and a question concerning representation may not appropriately
be raised.
INTERNATIONAL HOD CARRIERS' BUILDING, ETC. 661
Employees of both Kindred and Roman now and for the past several years have
been covered by succeeding collective-bargaining agreements between both companies
and Local 1175. C. T. Montalbine negotiated and executed the current contract for
both companies.
The foregoing facts establish and it is found that these two companies constitute a
single, integrated business enterprise and administer a common labor policy affecting
the employees of both companies.
During the year preceding issuance of the complaint the two companies purchased
and had delivered to their place of business directly from points outside the State
of New York materials valued at more than $50,000.
The Charging Companies are engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Both labor organizations named in the caption of this case are labor organizations
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
In 1950 the two Companies were located in Brooklyn, New York, at the same
premises. Since that time they have continuously recognized, dealt with, and have
entered into succeeding contracts with, Local 1175 as the exclusive representative of
all employees of both concerns in an agreed-upon unit.
The current contract was executed in July 1963, and is due to expire June 30, 1966.
It contains a union-shop clause, lawful on its face. At negotiations before entering
into this agreement the Local was informed that the Companies planned to move
their place of business from Brooklyn to Islip, in another county of the same State.
In November 1963, when C. T. Montalbine was at the constructionsite in Islip, he
was approached by one Morrison, who identified himself as a representative of the
Respondent Local 1298. After learning from Montalbine the name and nature of the
business coming to these premises, Morrison inquired if the Company was "union."
Montalbine replied that the Companies were under contract with Local 1175. Mor-
rison then declared that Local 1175 had no jurisdiction in Suffolk County, where
Islip is located, and that Montalbine would have to sign a contract with Local 1298.
Montalbine replied that the current contract did not expire until 1966 and he could
not sign with Local 1298.
Construction of the new plant continued. In January 1964, Morrison again
informed Montalbine that he would have to sign with Local 1298, and that he would
find out "sooner or later" that his local had jurisdiction in that county.
A month or two later Morrison delivered the same message to Montalbine at the
Islip site.
The foregoing facts, undisputed by any evidence, form the significant background
for events occurring within the 6-month period before October 15, 1964, when the
charge was filed, and which are placed in issue by the complaint.
By October 15, 1964, the Companies' move to Islip had been completed. All
employees who had been at the Brooklyn operations were transferred to the new plant.
The machinery and products remain the same. The transferred employees continue
to be members of Local 1175. In short, and as General Counsel urges in his brief,
except for location the Companies' entire operation has remained the same.
It is concluded and found that at all times material the Companies and Local 1175
have been parties to a lawful collective-bargaining agreement.
The major issue for resolution now is whether or not, within the Act's 10(b) period,
the Respondent Local 1298 has threatened to picket, and has picketed, the Companies
in order to force them to recognize and sign a contract with it, and to force the
employees concerned to be represented by it.
B. Facts relevant to the issues
Late in July Morrison and another representative of Local 1298, Genova, visited
Montalbine at his Islip office and repeated the demand that this local be recognized.
Genova declared that the Companies would "have to" recognize Local 1298, and
added that if they did not "they would follow our trucks and stop the jobs or have
the men on the jobs not accept our materials."
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Early in September the two union representatives again called upon Montalbine and
repeated both the demand and the threat.2
Late the same month Genova and another Local 1298 representative, Truicko,
came to Montalbine, demanding recognition and a contract. Genova again threat-
ened to have the trucks followed and to picket. (Montalbine's testimony as to this
visit is uncontradicted by Genova.)
On October 5 four union representatives- Morrison, Genova, Truicko and Sal-
nacki came to the plant in Islip, where they met two of the Montalbines and the office
manager. The union officials presented a Local 1298 contract to the company rep-
resentatives, but the latter declined to sign it Upon this refusal Truicko declared
that they would have to take "necessary steps" to force the signing.3
Beginning the next day, October 6, and continuing until October 23, Local 1298
picketed the premises in Islip, in front of employee entrances. The picket signs
bore the legend:
TO THE PUBLIC
THE LABORERS EMPLOYED BY
ROMAN STONE
CONSTRUCTION CO.
DO NOT RECEIVE WAGES AND
WORKING CONDITIONS
OBTAINED BY CONTRACTS
WITH
LOCAL UNION
NO. 1298
It is undisputed that since the employees were transferred to the new plant Local
1175 has continued to represent them, and on their behalf has negotiated grievances
with the employers . It is also unchallenged that the employers have continued to
check off union dues as in the past . No employee has indicated his desire not to
have Local 1175 continue to represent him.
C. Conclusions
In his brief, counsel for the Respondent Local 1298 contends that "the basic issue
involved in this proceeding is whether a question concerning representation exists."
This claim, if not frivolously advanced, at least is belated. The latter conclusion
finds support in the facts: (1) That the Respondent's answer fails to deny the alle-
gation of the complaint that the 1963 contract is a "lawful and valid written collec-
tive bargaining agreement," and (2) that in the presentation of his case counsel
offered no direct evidence attacking in any way the validity of the contract held by
the sister Local of the same International.
The frivolous nature of the claim is suggested by the fact that his client, Local
1298, was demanding that a contract be signed with it at a time when it plainly
represented not a single employee of the Companies-and when it made no claim
that it did.
The situation here is consistent with a trend becoming increasingly apparent: a
labor organization delegating to itself the right which the Act accords to employees
only-that of selecting a bargaining agent . The agent perverts its power as an agent
and presumes to be the principal.
I conclude and find, from the facts set out above, that a valid contract exists
between the Companies and Local 1175 and that no question concerning represen-
tation could validly be raised.
Undisputed testimony also, in my opinion, sustains the complaint's allegations to
the effect that the Respondent Local 1298 has, within the 10(b) period, threatened
to and has picketed the Employers with an object of forcing them to sign a contract
with the Respondent. An additional uncontradicted fact, not noted above, provides
2 Montalbine's testimony, from which the quotations are made, is uncontradicted as to
these two incidents either by Morrison or Genova. Morrison was not a witness and
Genova was not questioned concerning the events.
8 Truicko denied stating they would take "necessary steps," while Genova and Salnacki
denied that anything was said about picketing. Not only having noted the casual man-
ner of their denials, but also having well considered the undisputed threats of previous
meetings , I cannot credit these denials . Furthermore , as noted hereinafter , the Respond-
ent offered no evidence as to why picketing, which actually and undeniably occurred, was
invoked. It would be unreasonable to believe, under all the circumstances , that a picket
line would have been set up without previously voicing an ultimatum.
INTERNATIONAL HOD CARRIERS' BUILDING, ETC. 663
further support to the foregoing conclusion: during the period of the picketing
Morrison told Montalbine that the only way such picketing "could be resolved was
by our signing a contract with 1298."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Local 1298, set forth in section III, above, occur-
ring in connection with the business operations of the Charging Companies, 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.
Upon the foregoing findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
By picketing and threatening to picket the Charging Companies, with an object
of forcing them to recognize and bargain with it as the representative of their employ-
ees, and of forcing said employees to accept it as their collective-bargaining repre-
sentative, at a time when said Employers have lawfully recognized Local 1175 and a
question concerning representation may not be appropriately raised under Section
9(c) of the Act, the Respondent Local 1298 has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of Section 8(b) (7) (A) and
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
hereby ordered that the Respondent, International Hod Carriers' Building & Com-
mon Laborers' Union of America, Road & Heavy Construction, Local 1298, AFL-
CIO, its officers, agents, and representatives, shall:
1. Cease and desist from picketing or threatening to picket Roman Stone Con-
struction Company and Kindred Concrete Products, Inc., where an object is forcing
or requiring said Employers to recognize or bargain with it as the representative of
their employees, or forcing said employees to accept it as their representative, where
said Employers have lawfully recognized another labor organization and a question
concerning representation may not appropriately be raised.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls copies of the attached notice
marked "Appendix." 4 Copies of the notice to be furnished by the Regional Director
for Region 29, shall be duly signed and posted by the Respondent immediately upon
receipt, and shall be maintained, in conspicuous places, including all locations where
notices to members are customarily posted, for a period of 60 consecutive days.
Reasonable steps shall be taken to insure that the notices are not altered, defaced, or
covered by any material.
(b) Mail or deliver to the said Regional Director signed copies of said notice for
posting by the Employers named herein, if willing
(c) Notify the said Regional Director, in writing, within 20 days from the date of
receipt of this Trial Examiner's Decision, what steps have been taken to comply
herewith .5
A If the Board adopts this Recommended Order, the words "a Decision and Order" shall
be substituted for the words "Recommended Order of a Trial Examiner" in the notice.
If the Board's Order is 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".
5 If the Board adopts this Recommended Order, this provision shall be modified to read:
"Notify said Regional Director, in writing, within 10 days from the date of this Order,
what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF ROMAN STONE
CONSTRUCTION COMPANY AND KINDRED CONCRETE PRODUCTS, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to bring our actions in conformity with the policies
of the National Labor Relations Act, as amended, we hereby notify you that:
WE WILL NOT picket or threaten to picket Roman Stone Construction Com-
pany and Kindred Concrete Products, Inc., where an object is forcing or requir-
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing these employers to recognize or bargain with us as the representative of their
employees , or forcing such employees to accept us as their representative, where
these employers have lawfully recognized another labor organization and a
question concerning representation may not appropriately be raised.
INTERNATIONAL HOD CARRIERS' BUILDING & COMMON
LABORERS' UNION OF AMERICA, ROAD & HEAVY
CONSTRUCTION, LOCAL 1298, 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 material.
Employees may communicate directly with the Board's Regional Office, 16 Court
Street, Brooklyn, New York, Telephone No. 596-3751, if they have any questions
concerning this notice or compliance with its provisions.
Garwin Corporation ; S'Agaro , Inc., a New York Corporation;
S'Agaro, Inc., a Florida Corporation; Joseph Winkelman;
Milton Mirsky and Local 57, International Ladies ' Garment
Workers' Union, AFL-CIO. Case No. 29-CA-45 (formerly
2-CA-9791). June 28,1965
DECISION AND ORDER
On December 31,1964, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents and the Charging Party filed
exceptions to the Trial Examiner's Decision with supporting briefs.
The National Labor Relations 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 entire record in this case, including the Trial Exam-
iner's Decision, the exceptions, and briefs,' and hereby adopts the
Trial Examiner's findings, conclusions, and recommendations, with
the modifications indicated below.
For the reasons fully set forth in his Decision, we agree with the
Trial Examiner's conclusions that Respondents violated Section 8 (a)
(1), (3), and (5) of the National Labor Relations Act, as amended,
by closing their New York facility, discharging their employees, and
removing their operations to Miami, Florida, for the purpose of
depriving said employees of rights guaranteed by Section 7 of the Act
and to avoid dealing with the Union as majority representative of
1 The Respondents ' request for oral argument Is hereby denied because the record, the
exceptions , and briefs adequately present the Issues and positions of the parties.
153 NLRB No. 59.