Local 107, IBEW

National Labor Relations Board - Board DecisionsMay 15, 1969

175 N.L.R.B. 1010 (N.L.R.B. 1969)

1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 107, International Brotherhood of Electrical Workers , AFL-CIO; The Grand Rapids Building and Construction Trades Council , AFL-CIO; Local 70, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; and Local 335 , United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and G . Paul Harvey , Business Manager of Local 107, International Brotherhood of Electrical Workers , AFL-CIO; and Jack Kellogg , President of the Grand Rapids Building and Construction Trades Council , AFL-CIO, and Business Representative of Local 70, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO and Dibble Electric Company. Case 7-CC-477 (2)-(7) May 15, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On February 18, 1969, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled case, finding that the 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 Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions limited to the scope of the order set forth in the Trial Examiner's Decision. The Respondents filed no exceptions or cross-exceptions. 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. 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 limited exceptions , and the entire record in this case , and hereby adopts the findings, conclusions , and recommendations' of the Trial Examiner. 'We find merit in the General Counsel 's exceptions to the narrow scope of the Trial Examiner's limited cease and desist order . In accord with normal Board practice , which is justified in the present case, we shall amend the order to include language prohibiting unlawful activities against any secondary employers or persons and their employees, where an object is to force or require ceasing doing business with the primary employer involved herein . International Brotherhood of Electrical Workers v. N.L.R.B. 341 U.S. 694, 705 (1951); Plumbers and Pipe Filters Local Union 142 (Cross Construction Co, Inc.), 169 NLRB No. 113, In. 1. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondents , Local 107, International Brotherhood of Electrical Workers, AFL-CIO; the Grand Rapids Building and Construction Trades Council , AFL-CIO; Local 70, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; and Local 335, United Brotherhood of Carpenters and Joiners of America ; AFL-CIO, their officers and successors, and their representatives and agents , including G. Paul Harvey and Jack Kellogg , shall take the action set forth in the Trial Examiner's Recommended Order, as modified below: 1. Delete paragraph 1(a) of the Trial Examiner's Recommended Order, and substitute the following: (a) Inducing or encouraging any individual employed by Delta Electric Co., Hertel Plumbing & Heating Co., Bouma Tile & Accoustical Co., De Young & Bagin Construction Co., Post Fixture Company, or any other subcontractor of The Taubman Company , Inc., or any other person engaged in commerce or in an industry affecting commerce , to engage in a strike or work stoppage, or threatening The Taubman Company. Inc., or any other person engaged in commerce or in an industry industry affecting commerce , with such a strike or work stoppage , where an object thereof is to force' or require The Taubman Company, Inc., or any other employer or person engaged in commerce or in an industry affecting commerce to cease doing business with Dibble Electric Company. 2. Delete the first indented paragraph of the notice attached to the Trial Examiner's Decision and substitute the following: WE WILL NOT induce or encourage any individual employed by Delta Electric Co., Hertel Plumbing & Heating Co., Bouma Tile & Accoustical Co., De Young & Bagin Construction Co., Post Fixture Company, or any other subcontractor of The Taubman Company Inc., or any other person engaged in commerce or in an industry affecting commerce , to engage in a work stoppage to force The Taubman Company, Inc., or any other employer or person engaged in commerce or in an industry affecting commerce to stop doing business with Dibble Electric Company. 3. Amend the second indented paragraph of the notice by adding the words "or any other employer or person engaged in commerce or in an industry affecting commerce" after the words "TAUBMAN CO." 175 NLRB No. 171 LOCAL 107, IBEW TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADwIG, Trial Examiner: These consolidated cases were tried at Grand Rapids , Michigan, on January 13, 1969, pursuant to charges filed on November 1, 1968,' by Dibble Electric Company, herein called Dibble Electric, against the Respondents (Local 107, International . Brotherhood of Electrical Workers, AFL-CIO, herein called Electrical Workers; The Grand Rapids Building and Construction Trades Council , herein called Building Trades Council; Local 70, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO , herein called Plumbers; Local 335, United Brotherhoop of Carpenters and Joiners of America, AFL-CIO, herein called Carpenters; G. Paul Harvey, business manager of the Electrical Workers; and Jack Kellogg, president of the Building Trades Council and business manager of the Plumbers), and pursuant to a consolidation order and complaint issued November 18. The primary issues are whether (a) the Electrical Workers threatened a general contractor on October 30 with the removal of all union employees from a shopping center construction site unless the general contractor ceased using the services of Dibble Electric , and (b) the Electrical Workers , Plumbers, Carpenters , and Building Trades Council , through their agents, induced the work stoppage at the shopping center on October 31, in violation of Section 8(b)(4)(i)(ii)(B) of the National Labors Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondents , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS AND THE LABOR ORGANIZATIONS INVOLVED Dibble Electric , a Michigan corporation, is an electrical contractor in Grand Rapids, with a gross annual income in excess of $32,000 . During October, it was engaged in installing certain electrical work at the Woodland Mall Shopping Center construction site for the general contractor, The Taubman Company, Inc ., herein called Taubman . In the construction of the shopping center, Taubman during 1968 purchased and received materials valued in excess of $50,000 directly from outside the State, and had a gross income in excess of $ 1 million from the project. Taubman had subcontracts at the construction site with Delta Electric Co., herein called Delta, to perform other electrical work; with Hertel Plumbing & Heating Co ., herein called Hertel, and Post Fixture Company , herein called Post , to perform plumbing and/or heating work ; with Bouma Tile & Acoustical Co., herein called Bouma, to perform tile and acoustical work ; and with DeYoung & Bagin Construction Co., herein called DeYoung, to perform carpentry work. The Respondents admit, and I find , that Dibble Electric, Taubman, Delta , Hertel, Post, Bouma , and DeYoung was each an employer engaging in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7 ) of the Act . The Respondents also admit that the 'All dates, unless otherwise indicated , refer to the year 1968. 1011 Electrical Workers, Plumbers, Carpenters , and Building Trades Council are labor organizations within the meaning of the Act and that , within the meaning of Section 2(13) of the Act, Harvey was an agent of the Electrical Workers, Kellogg was an agent of the Building Trades Council and Plumbers, and the Building Trades Council was an agent of its constituent members, the Electrical Workers, Plumbers, and Carpenters. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Cornelius F. Dibble was the president and sole stockholder of two electrical contracting companies. One of them, Dibble Electric (a newly formed corporation employing five or six electricians), signed a collective-bargaining agreement with the Electrical Workers on June 12. This agreement contained an exclusive , nondiscriminatory hiring hall provision. The other, Dibble Enterprises , Inc., herein called Dibble Enterprises (employing 20 or 30 electricians), had a collective-bargaining agreement with District 50, United Mine Workers, providing for a wage rate of $1 less than the Electrical Workers' agreement. On October 21, Dibble signed a subcontract to perform the electrical construction work for general contractor Taubman in one of the new stores at the Woodland Mall Shopping Center. Although the subcontract was signed on behalf of Dibble Enterprises, the work was being performed by electrician Edward Marsman , an employee of Dibble Electric . (Marsman, a long-time employee of Dibble Enterprises, had been employed by Dibble Electric on June 13, the day after Dibble Electric ' s union agreement with the Electrical Workers became effective. The Electrical Workers had given Marsman, a nonmember , a written referral on June 13 to work for Dibble Electric - without specifying the "job location" on the referral form. Since June, Marsman had worked on several Dibble Electric jobs, and on - one Dibble Enterprises job.) In the meantime , friction had developed between the Electrical Workers and Dibble Electric. In July, the Electrical Workers had filed a grievance against Dibble Electric, alleging that on an earlier job at the Woodland Mail, Dibble Electric was not abiding by the exclusive referral procedure in the union agreement. During the processing of the ' grievance , the Electrical Workers learned that Dibble was performing the job in the name of Dibble Enterprises (with the substandard District 50 agreement). Thereafter , on August 14, Dibble Electric filed a grievance against the Electrical Workers, contending that it was violating the terms of the union agreement by refusing to refer available applicants to it. No action was taken on this grievance . In addition, Building Trades Council President John "Jack" Kellogg indicated a certain degree of frustration in dealing with Dibble. Kellogg testified , " I called Mr. Dibble's office many times to try to straighten out problems and so forth and he cannot be had at his office . It is an impossibility to contact him unless he wants to be contacted." B. Strike Threat On Friday, October 25, Electrical Workers Business Manager G. Paul Harvey learned that Dibble was again performing electrical work at the Woodland Mall, and went to the project . Upon being told by nonunion 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD electrician Marsman that the work was being done by Dibble Electric, Harvey asked Marsman if he had a union referral. Marsman said that he had the earlier referral to Dibble Electric. Harvey advised him that when he worked for another company (Dibble Enterprises), and then "goes back to work for the union company again, he would have to go through the referral procedure." Marsman said he was unaware of that requirement, and remained on the job. While at the Woodland Mall, Business Manager Harvey complained to Howard DeYoung, the property manager of Woodland Shopping Center, Inc. (an affiliate of general contractor Taubman), that Dibble Electric was not living up to the agreement. According to Harvey's undisputed testimony, DeYoung stated that "he thought Dibble was square with the union" and that " he would go back and talk to them and let me know on Monday what happened." Harvey heard nothing on Monday. Then on Tuesday, October 29, he received a report by telephone from a union electrician working for Delta, another electrical contractor at the Woodland Mall project, "that Dibble was still working on the job." (Emphasis supplied. Harvey later repeated the testimony that the electrician reported "that Dibble was still working on the job there," but then added, apparently as an afterthought, "that they had not lived up to the agreement.") Either that same day, or the following day, Wednesday, October 30, Business Manager Harvey went with Building Trades Council President Kellogg to the project and conferred with Lester Golding, construction superintendent for general contractor Taubman. According to Golding's credited testimony, Harvey and Kellogg said that "we had a man working on the job that was not recognized" by the Electrical Workers, and "that if we did not remove this man or this man was not cleared with the union," that "all of the union trades would have to be removed from the job until this thing settled." Golding immediately telephoned Taubman Project Manager Gerald J. Sparr, who talked with Harvey over the telephone. According to Sparr's credited testimony, Harvey "told me that Dibble Electric had a Mr. Marsman on the job who was not referred by the local to Dibble Electric Company, therefore, was not entitled to be on the job; and that if we didn't get the job straightened out he would have to shut the job down." Business Manager Harvey admitted on the stand that while he was talking to Sparr, Project Superintendent Golding "took out the agreement and showed to us" that Taubman had contracted with Dibble Enterprises to perform the work, not with Dibble Electric. When Harvey was asked what he was requesting Sparr to do, in view of the fact that Taubman's contract was with a company which did not have an agreement with the Electrical Workers, Harvey appeared to grasp for a plausible answer , then responded, "Specifically . . . I don't know. . .." He testified that "Mr. Sparr did indicate he didn't want any union problems on the job . . . and that he would do what he could to try to eliminate the problems with the Building Trades union." C. October 31 Work Stoppage On Thursday, about 8:30 a.m., Harvey and Kellogg met at the Woodland Mall project with Carpenters Business Representative David R. Cain and other representatives of unions affiliated with the Building Trades Council. They went from one jobsite to another, where union craftsmen were working. The union representatives then left the project - followed shortly thereafter by all 20 or 25 of the union craftsmen, including members of the Electrical Workers, Plumbers, and Carpenters, who were working for subcontractors Delta, Bouma , DeYoung, Hertel, and Post. Only Marsman remained on the job. Upon hearing about the work stoppage, Project Manager Sparr attempted unsuccessfully to contact Dibble. Sparr then telephoned Dibble Enterprises Sales Manager William Mickey, advising him (in Sparr's words), "that unless he got this thing straightened out and straightened out fast that I would have to relieve his company as contractor on the job and get another contractor to finish it." The following day, November 1, Marsman did not report to work, and all the union craftsmen returned. Several days later, the Electrical Workers referred another electrician to Dibble Electric to finish the job, under the "supervision" of Marsman. D. Shifting Defenses On December 3, the Respondents, through their attorney, filed an answer in the Section 10(1) injunction proceeding, admitting that Business Manager Harvey made the strike threat and that the Respondents induced the work stoppage. Thus, in Brooks v. Local 107, etc., Civil No. 5972 (D.C.W.Mich.), the Respondents admitted in paragraph 5 of their Answer to Petition for Injunction, (q) "that Paul Harvey threatened to remove union employees from the Woodland Mall jobsite," (r) that Respondents "did remove or cause to be removed, all employees of Delta, Hertel, Bouma, DeYoung and Post from the Woodland Mall jobsite," (s) that "Respondent Building Trades Council, by its agent Jack Kellogg, induced the employees of Delta, Hertel, Bouma, DeYoung and Post to cease work at the Woodland Mall jobsite," and (t) that "Respondent Electrical Workers, by its agent G. Paul Harvey, induced the employees of Delta, Hertel, Bouma , DeYoung and Post to cease work at the Woodland Mall jobsite." At the trial herein, the Respondents ignored the earlier admissions , and presented testimony that no strike threats were made, and that the Respondents did not induce the work stoppage. Harvey, Kellogg, and Cain (all officers of the Building Trades Council), testified that the union employees left the job spontaneously. However, even apart from the earlier admissions in the court proceeding, I find that the appearance of the union representatives on the jobsite, and their discussions with the employees about Dibble's asserted contract violation, were at least a signal for the employees to engage in the work stoppage. (Harvey claimed that when he talked to some of the union electricians, "They said that they would not work on that job until that thing got straightened out," and that he responded, "it was up to them," that "we are trying to get the contract straightened out." Kellogg claimed that one person asked if Dibble "is living up to his contract and I says no," and another person "asked about Dibble and I merely stated that the reason we were out there was because they were not complying with the contract." Cain claimed that three carpenters "said that they were not going to work with nonunion people. I just hunched my shoulders.") Concerning the alleged strike threat the day or two before, Electrical Workers Business Manager Harvey claimed, "I told Mr. Sparr what some of my electricians had told me that they were unhappy that Mr. Dibble did not have to live up to the terms of the agreement and that there might be a labor problem." LOCAL 107, IBEW According to Kellogg,. "We told [Golding] we were out there to try to keep the men on the job, because the men were complaining and wanted to know was Dibble living up to his contract." None of the three defense witnesses impressed me as candid witnesses, and I find these explanations to be largely fabricated. I credit the Respondents' earlier admissions. E. Concluding Findings The Electrical Workers' dispute was with Dibble Electric, for not complying with the referral procedure in their collective-bargaining agreement. Earlier, when the same dispute arose on a different job at the same Woodland Mall project, the Electrical Workers had filed a grievance, only to learn that Mr. Dibble was doing the work in the name of Dibble Enterprises, whose employees were covered by a District 50 agreement (paying $1 less per hour). This time, the Electrical Workers' investigation disclosed that Dibble Electric was actually performing the work - although Dibble (owner of both electrical companies) had again contracted with general contractor Taubman to do the work under the name, Dibble Enterprises. It was in this context that the Respondents admittedly engaged in the secondary activity, inducing employees of other subcontractors at the project to engage in the 1-day work stoppage. The Respondents contend. however, that they did not violate the secondary boycott statute, Section 8 (b)(4)(B), because there was-not a proscribed object, of "forcing or requiring" general contractor Taubman "to cease doing business with" Dibble Electric. As stated in their answer in the above-mentioned court proceeding, the strike threat to Taubman and the work stoppage at subcontractors Delta, Hertel, Bouma, DeYoung, and Post were "solely for the purpose of obtaining compliance by Dibble Electric Company with its collective-bargaining agreement with the Respondent Electrical Workers." This contention clearly has no merit. By threatening to remove, and then removing all the union employees from the project, the Respondents obviously intended, as an object, to force the general contractor to cease doing business with Dibble Electric (the contractor performing the work), at least unless Dibble Electric complied with the Electrical Workers' interpretation of the union agreement (that all workmen be referred through the hiring hall). The fact that Dibble Electric may have been violating the terms of the union agreement does not justify the Respondents' secondary activity. N.L.R.B. v. Milk Drivers Local 584 (Old Dutch Farms, Inc.), 341 F.2d 29, 33 (C.A. 2). Moreover, the strike threat and the removal of the union employees from the project was for an illegal object of forcing the subcontractors to cease doing business with the general contractor until the Electrical Workers' demands were met. I therefore find that this secondary activity violated Section 8(b)(4)(i)(ii)(B) of the Act. CONCLUSIONS OF LAW By threatening general contractor Taubman with removal of all union employees ,from the Woodland Mall construction project, and inducing union employees of subcontractors Delta, Bouma , DeYoung, Hertel, and Post to engage in the work stoppage, for an object of forcing Taubman to cease doing business with Dibble Electric, the Respondents have engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i)(ii)(B) and Section 2(6) and (7) of the Act. THE REMEDY 1013 Having found that the Respondents have committed certain unfair labor practices, I shall recommend that they be ordered to cease and desist from such conduct, and to take affirmative action, which I find necessary to remedy and to remove the effect of the unfair labor practices and to effectuate the policies of the Act. Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I recommend pursuant to Section 10(c) of the Act, issuance of the following: ORDER Respondents , Local 107, International Brotherhood of Electrical Workers, AFL-CIO; the Grand Rapids Building and Construction Trades Council , AFL-CIO; Local 70, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO; and Local 335 , United Brotherhood of Carpenters and Joiners of America, AFL-CIO, their officers and successors, and their representatives and agents , including G. Paul Harvey and Jack Kellogg , shall: 1. Cease and desist from: (a) Inducing or encouraging any individual employed by Delta Electric Co., Hertel Plumbing & Heating Co., Bouma Tile & Acoustical Co., DeYoung & Bagin Construction Co., Post Fixture Company , or any other subcontractor of the Taubman Company , Inc., to engage in a strike or work stoppage , or threatening The Taubman Company , Inc., with such a strike or work stoppage, where an object thereof is to force or require The Taubman Company , Inc., to cease doing business with Dibble Electric Company. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post , in conspicuous places in Respondent labor organizations ' business offices, meeting halls , and places where notices to their members are customarily posted, copies of the attached notice marked "Appendix."' Copies of such notice on forms provided by the Regional Director for Region 7, after being duly signed by an authorized representative of each of the Respondent labor organizations and by Respondents G. Paul Harvey and Jack Kellogg , shall be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter . Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced , or covered by any other material . Upon request of the Regional Director , the Respondents shall supply him with a sufficient number of signed copies for posting by the above-named general contractor Taubman and subcontractors Dibble Electric , Delta , Hertel , Bouma, DeYoung , and Post at all locations where notices to their respective employees are customarily posted, if the contractors desire to do so. 'If 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 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 " 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps the Respondents have taken to comply herewith. 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify the Regional Director for Region 7 , in writing , within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith " APPENDIX Dated By NOTICE TO ALL MEMBERS OF I.B.E .W. LOCAL 107, PLUMBERS LOCAL 70, CARPENTERS LOCAL 335 , AND Dated GRAND RAPIDS BUILDING TRADES COUNCIL 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 Relations Act, as amended, we hereby notify you that: WE WILL NOT induce any union member working for Delta Electric, Hertel Plumbing, Bouma Tile, DeYoung & Bagin , Post Fixture, or any other subcontractor on a Taubman Co. project, to engage in a work stoppage to force Taubman Co. to stop doing business with Dibble Electric Co. WE WILL NOT threaten Taubman Co. with such a work stoppage. LOCAL 107, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO (Labor Organization) Dated By (Representative) (Title) By Dated By Dated Dated By By THE GRAND RAPIDS BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO (Labor Organization) (Representative) (Title) LOCAL 70, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE UNITED STATES AND CANADA, AFL-CIO (Labor Organization) (Representative) (Title) LOCAL 335, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO (Labor Organization) (Representative) (Title) G. Paul Harvey Jack Kellogg This notice must remained posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. It members have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board' s Regional Office, 500 Book Building , 1249 Washington Boulevard , Detroit, Michigan 48226, Telephone 313-226-3244.