Local 585 of the Brotherhood of Painters, Etc.

National Labor Relations Board - Board DecisionsAug 21, 1963

144 N.L.R.B. 100 (N.L.R.B. 1963)

100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify said Regional Director in writing, within 20 days from the receipt of this Intermediate Report, what steps the Respondents have taken to comply herewith .5 5 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days trom the date of this Order, what steps the Respondents have taken to comply heiewith " APPENDIX NOTICE TO ALL OUR MEMBERS AND TO EMPLOYEES OF HANKINS & HANKINS CONSTRUCTION COMPANY 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, we hereby give notice that: WE WILL NOT induce or encourage any individual employed by Hankins & Hankins Construction Company, or any other person engaged in commerce or in an industry affecting commerce, to refuse to install prefabricated materials manufactured by Cardinal Industries, Inc., or by any other person. WE WILL NOT threaten, coerce, or restrain Hankins & Hankins Construction Company, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require any of them not to purchase or install prefabricated materials manufactured by Cardinal Industries, Inc, or by any other person. OHIO VALLEY CARPENTERS DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. By------------------------------------------- (Representative) (Title) ------------------------------------------- (ALBERT SCHEER) Dated------------------- ------------------------------------------- (ROBERT SAnER) 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. Employees may communicate directly with the Board's Regional Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. Local 585 of the Brotherhood of Painters, Decorators & Paper Hangers of America , AFL-CIO I and Galveston Building and Construction Trades Council2 and Local 12, International Union of United Brewery, Flour , Cereal , Soft Drink and Distillery Workers of America 3 and Falstaff Brewing Cor- poration: Case No. 23-CE-2. August 21, 1963 DECISION AND ORDER Upon a charge duly filed on December 5, 1962, by the Brewery Workers, the General Counsel of the National Labor Relations Board, 1 Hereinafter referred to as Painters 2 Hereinafter referred to as Council collectively, the Painters and Council are herein called Respondents. 3 Hereinafter referred to as Brewery workers. 4 hereinafter referred to as Falstaff. 144 NLRB No. 22. LOCAL 585 OF THE BROTHERHOOD OF PAINTERS, ETC. 101 herein called the Board, by the Regional Director for the Twenty- third Region, issued a complaint dated January 31, 1963, against the Painters and the Council alleging that they had engaged in and were engaging in unfair labor practices within the meaning of Section 8(e) and Section 2(6) and (7) of the Act. Copies of the charge, complaint, and notice of hearing were duly served upon the parties. With respect to the unfair labor practices, the complaint alleges, in substance, that since on or about June 5, 1962, the Respondents have "entered into" and "'given effect to" collective-bargaining pro- visions with Falstaff in violation of Section 8(e) of the Act. On March 20, 1963, all parties to this proceeding entered into a stipulation of facts and jointly moved to transfer this proceeding directly to the Board for findings of fact, conclusions of law, and Decision and Order. In their stipulation, the parties agreed to waive a hearing before a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of an Intermediate Report and Recommended Order. The parties agreed that the charge, complaint, Respondents' answer, the transcript of record taken in Case No. 23-CD-56 s on June 27, 1962, and the stipu- lation of facts constitute the entire record in this case. On April 5, 1963, the Board approved the stipulation and granted the parties' motion to transfer the case to the Board. Thereafter, briefs were filed by the Respondents and the General Counsel. Upon the parties' stipulation of facts, the briefs, and the entire record in this case, the Boards makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Falstaff has been, at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Delaware, having a brewery located at Galveston, Texas, where it is engaged in the manufacture, sale, and distribution of beer and related products. During the past 12-month period, Falstaff, in the course and conduct of its business operations at its Galveston plant, manufactured, sold, and shipped beer from said plant to points out- side the State of Texas of a value in excess of $50,000. Falstaff is now, and has been at all times material herein, an em- ployer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 6140 NLRB 1304 6Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and members Rodgers and Leedom]. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U. THE LABOR ORGANIZATIONS INVOLVED The Painters, the Council, and the Brewery Workers are, and at all times material herein have been, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The parties stipulated that on about February 20, 1962, Falstaff and the Respondents entered into a written contract containing, inter alia, the following provisions : Article I 1. The purpose of this Agreement is to establish and maintain harmonious relations between all parties to the Agreement and avoid strikes, lockouts, or delays in the prosecution of the work undertaken by the Company. 2. At no time shall maintenance men do construction work not completed on any project originated by a contractor. The maintenance men may be permitted to work on construction work within the boundary of the plant operations provided that no construction be done beyond the capacity of the equipment and personnel available at the plant. 3. The Company may, during the life of this Agreement, award contracts for the execution of construction work in this plant to contractors who pay the prevailing wage scale in the area and grant to their employees prevailing working conditions. 4. The Company will not contract out any maintenance work coming under the jurisdiction of a particular craft if it will cause maintenance employees to be laid off or if maintenance employees of the craft are on the layoff list. Article II 1. The Union agrees to maintain a high level of skilled crafts- manship and provide a pool of qualified and experienced workers. It is recognized that the successful carrying out of those func- tions by the Union is beneficial to both the workers and the Em- ployer, to that end the Union agrees to exercise the utmost care in maintaining a high level of skilled craftsmanship. When hir- ing employees the Company agrees to notify the Union of all job openings for positions covered by the Union having jurisdiction at least twenty-four (24) hours before the workmen are required, on all maintenance work coming within the jurisdiction of the Building and Construction Trades Unions. In return the Union agrees to refer to the Company qualified and experienced workers insofar as they are available, to be considered by the Company in filling of such positions. In making such referrals, the Union LOCAL 585 OF THE BROTHERHOOD OF PAINTERS, ETC. 103 agrees to register and refer applicants without respect to Union membership. 2. The Company agrees that on all maintenance work as defined in the recognition clause, at the Falstaff Brewing Corporation, it will employ and use or cause to be employed and used qualified employees referred to them by the Union and accepted by the Company, including the following trades : Asbestos Workers, Sheet Metal Workers and Roofers, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers Local #132, Hoisting and Portable Engineers, Painters and Paper Hangers, Bricklayers and Tile Setters, Plasterers and Cement Finishers, Electricians, Plumbers and Steamfitters, Gen- eral Drivers Local #940, Construction, Marine-Shipyard and Maintenance Laborers Local #116 and the Iron Workers. 3. Should the Unions be unable to furnish the Company with the number of men so qualified as needed within twenty-four (24) hours, it is understood and agreed that the Company shall employ from any other source. As more fully set forth in the Board's earlier Decision and De- termination of Dispute (140 NLRB 1304), Falstaff contracted with Bishopric Products Company to replace linings on Falstaff Is brewery settling tanks at the Galveston brewery. In conformance with its usual procedures, Bishopric brought in a field traveling crew from Cincinnati, Ohio, to do the work. That crew consists of regular em- ployees of Bishopric who are members of the Brewery Workers. Bish- opric's employees appeared at the Galveston plant ready to begin operations on or before June 6, 1962. The Painters thereafter de- manded the work which Bishopric had assigned to members of the Brewery Workers. It protested the assignment made, whether the work was considered construction or maintenance, on the ground that Bishopric's employees were being paid substandard wages and that Falstaff, responsible for the assignment, thereby violated its contract with the Painters. It also insisted on numerous occasions that, under its contract with Falstaff, the work in question was the work of and belonged to painters or the Painters? On June 7 and 8, the Painters picketed Falstaff in furtherance of its demand for the work.' Subsequently, the Painters demanded arbitration of the matter by letter to Falstaff dated October 10, 1962, which reads as follows : , At the hearing in the CD case , it was argued on behalf of the Painters that "under the terms of the contract with Falstaff Brewing Corporation, Falstaff has agreed with Painters Local 585 that this work is the work of Painters and that any contractor who has a sub- contract, that Falstaff would either . . . employ or cause to be employed and used on this particular work qualified painters inasmuch as it is the work of Painters " 8 This course of events led to the above -cited Board Decision and Determination of Dis- pute in the CD case wherein , inter alia, the Board affirmatively awarded the work in dis- pute to the employees of Bishopric who were members of the Brewery workers. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Notice is hereby given that Painters Local Union No. 585 wishes to Arbitrate the controversy concerning the use and employment of employees chosen by Bishopric Products Company, Inc., on a project at the Falstaff Brewing Corporation plant in Galveston, Texas, during the month of June 1962. . We contend that this work is embraced within the Articles of Agreement between the Falstaff Brewing Corporation of Galveston, Texas, and the Galveston Building & Construction Trades Council and its af- filiated unions. We contend that the use of these employees by Bishopric Com- pany is in violation of Paragraph 2, Article 2 of the above cited Articles of Agreement, wherein it is provided that : "The Com- pany agrees that on all maintenance work as defined in the recogni- tion clause, at the Falstaff Brewing Corporation, it will employ and use or cause to be employed and used qualified employees referred to them by the Union and Asbestos Workers, Sheet Metal Workers, and Roofers, International Brotherhood of Boiler- makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers Local #132, Hoisting and Portable Engineers, Painters and Pa- per Hangers , Bricklayers and Tile Setters, Plasterers and Cement Finishers, Electricians, Plumbers and Steamfitters, General Drivers Local #940, Construction, Marine-Shipyard and Mainte- nance Laborers #116 and the Iron Workers." [Emphasis supplied.] An arbitration hearing was scheduled, but postponed indefinitely by the Painters by letter dated November 21, 1962. The General Counsel contends that the contract provisions cited above, and more specifically article I, section 3, and article II, section 2, fall within the proscription of Section 8(e) of the Act,9 and that the Respondents "entered into" such agreements in violation of Sec- tion 8 (e). Respondents contend that article I, section 3, by merely requiring Falstaff, if it contracts out work, to award such work to contractors who pay the prevailing wage and observe prevailing working condi- tions, does not violate Section 8 (e) of the Act. With respect to article II, section 2, Respondents contend that that clause, when read together with section 3 of the same article, does not provide that Falstaff "absolutely must employ or use or cause to be used qualified employees referred to them by the Union from various trades." In pertinent part, Section S (e) reads as follows. It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied , whereby such employer ceases or refrains or agrees to cease or refrain from handling , using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person . LOCAL 585 OF THE BROTHERHOOD OF PAINTERS, ETC. 105 We find merit in the General Counsel's position in this case. Article I. section 3, permits Falstaff to award construction work to outside con- tractors but it requires that such contractors must "pay the prevailing wage scale in the area and grant to their employees prevailing working conditions." This provision cannot be construed as a restriction on sub- contracting for the preservation of jobs and job rights for Falstaff's employees represented by Respondents. Its plain purpose is to limit the persons with whom Falstaff may do business. As such, this clause is proscribed by Section 8 (e) of the Act.10 As for article II, section 2, the language of that section and the intent in that connection as demonstrated by statements made by the Painters in obvious reference thereto, as well as the Painters' action taken pursuant thereto, show that this provision, like article I, section 3, imposed a restriction upon Falstaff's right to subcontract, unaffected by any other contractual provision. For under this provision, as it must be read, Falstaff, when subcontracting maintenance work as de- fined in the contract, must subcontract such work to contractors who employ only qualified employees referred to them by the named build- ing trades unions who are affiliated with the Council. This provision, therefore, must also be held to fall within the proscription of Sec- tion 8 (e). In view of the foregoing, and it appearing that the contractual provisions in issue were maintained, enforced, and given effect to within the time period covered by the charge, we find that the Re- spondents thereby violated Section 8 (e) of the Act." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondents set forth above occurring in con- nection with the business of Falstaff have a close, intimate, and sub- stantial 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, we shall order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. 10 Milk Drivers' Union, Local 753, International Brotherhood of Teanisteis , etc (Pure Milk Association), 141 NLRB 1237; Truck Drovers Union Local No 413, International Brotherhood of Teamsters , etc (The Patton Warehouse, Inc ), 140 NLRB 1474; District No 9, International Association of Machinists ( Greater St Louis Automotive Trimmers, etc ), 134 NLRB 1363, enfd 315 F 2d 33 (CA D.C ) ; Meat and Highway Drivers, etc, Local Union No 710, International Brotherhood of Teamsters , etc (Wilson t Co . Inc ). 143 NLRB 1221 " Dan McKinney Co, 137 NLRB 649 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing and the entire record, the Board makes the following : CONCLUSIONS OF LAw 1. The Respondents are, and have been at all times material to the issues in this proceeding, labor organizations within the meaning of Section 2 (5) of the Act. 2. Falstaff and Bishopric are, and have been at all times material to the issues in this proceeding, employers within the meaning of Section 2(2) of the Act. 3. By maintaining, enforcing, and giving effect to article I, section 3, and article II, section 2, contained in the collective-bargaining agreement between Falstaff and the Respondents, the Respondents en- tered into an agreement in violation of Section 8(e) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Local 585 of the Brotherhood of Painters, Decorators & Paper Hangers of America, AFL-CIO, and Galveston Building and Construction Trades Council and their officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining, enforcing, and giving effect to article I, section 3, and article II, section 2 of the collective-bargaining contract signed by Respondent Unions and Falstaff on or about February 20, 1962, to the extent found unlawful herein. (b) Executing, maintaining, enforcing, or giving effect to any other contract or agreement, express or implied, whereby Falstaff ceases or refrains, or agrees to cease or refrain, from doing business with Bishopric Products Company, or any other employer or person, in violation of Section 8 (e) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at Respondent Unions' business offices, places of busi- ness, and meeting places, copies of the attached notice marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after having been duly signed by an authorized representative of the Respondent Unions, be 12In the event that this Order is enforced by a decree of a United States Court of Appeals, the notice shall be amended by substituting for the words "Pursuant to a Deci- sion and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." LOCAL 585 OF THE BROTHERHOOD OF PAINTERS, ETC. 107 posted by said Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respond- ent Unions to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Twenty-third Region signed copies of the aforementioned notice for posting by Falstaff and Bishopric, if they are willing, in places where notices to their em- ployees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being duly signed by Respond- ents' authorized representatives, be forthwith returned to the Regional Director for disposition by him. (c) Respondents shall notify the Regional Director for the Twenty- third Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. APPENDIX NOTICE TO ALL OUR MEMBERS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that : WWE WILL NOT execute, maintain, give effect to, or enforce any contract or agreement, express or implied, with Falstaff Brewing Corporation, whereby such employer ceases or refrains, or agrees to cease or refrain, from doing business with Bishopric Products Company or any other employer or person in violation of Section 8 (e) of the Act. WE WILL NOT enforce, maintain, or give effect to article I, section 3, and article II, section 2 of the collective-bargaining contract signed by the aforenamed Employer and the undersigned Union on February 20, 1962, insofar as said contract provisions violate Section 8 (e) of the Act. LOCAL 585 OF THE BROTHERHOOD OF PAINTERS, DECORATORS & PAPER HANGERS OF AMERICA, AFL-CIO, Union. Dated---------------- By------------------------------------- (Representative ) ( Title) GALVESTON BUILDING AND CONSTRUCTION TRADES COUNCIL, Union. Dated---------------- By------------------------------------- (Representative ) ( Title) 108 DECISIONS M NATIONAL LABOR RELATIONS BOARD 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. Employees may communicate directly with the Boards Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol 8-0611, Extension 296, if they have any question concerning this notice or compliance with its provisions. San Juan Lumber Company and Andy L. Lucero. Case No. 27- CA-1335. August 21, 1963 DECISION AND ORDER On June 20 , 1963, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding , finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report . Thereafter , the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its powers in connection with this case to a three -member panel [Chairman McCulloch and Members Leedom and Brown]. 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 Intermediate Report, the exceptions and brief , and the entire record in this case , and hereby adopts the findings,' conclusions , and rec- ommendations 2 of the Trial Examiner. I We agree with the Trial Examiner that the Respondent violated Section 8 ( a) (1) of the Act by discharging employees Felipe Maez , Henry Maez , Andy L. Lucero, Joe Jaramillo, and Gilberto Martinez . As more fully set forth in the Intermediate Report, these em- ployees failed to report to work on January 26, 1963, the day after a payday on which they had not been paid because their checks were lost . They stayed away not because of the failure to get their checks on time , but because their car would not start and they could not find another ride Respondent's foreman , disbelieving their excuse , discharged them , asking Henry Maez , "Are you with the same gang0" informing Joe Jaramillo, "You and four more are fired," and telling the others , "No pay no work ," thereby indicating his belief in the concerted nature of their absence. The Trial Examiner found, and we agree, that the five men were discharged because the foreman believed that they had remained away from work in a concerted protest against the delay in paying them, although the employees had not in fact engaged in concerted activity By discharging them for this reason, and communicating it to the employees, the Respondent served notice that concerted activity would not be tolerated in its plant, and thereby interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a) (1) of the Act. 2 Contrary to the Trial Examiner, we find that the unfair labor practices committed by the Respondent strike at the very heart of the employee rights safeguarded by the Act 144 NLRB No. 18.