Local 71, Sheetmetal Workers

National Labor Relations Board - Board Decisions

May 8, 1975

217 N.L.R.B. 856 (N.L.R.B. 1975)

856 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD
Local 71, Sheetmetal Workers International Associa-
tion, AFL-CIO (Wind Heating Co., Inc.) and
Niagara County Sheetmetal Contractors & Roofing
Association. Case 3-CC-869
May 8, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND
KENNEDY
On January 28, 1975, Administrative Law Judge Eu-
gene E. Dixon issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions to
the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings,' and con-
clusions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondent, Local 71, Sheetmetal Workers Inter-
national Association, AFL-CIO, Cheektowaga, New
York, its officers, agents, and representatives, shall take
the action set forth in the said recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Administrative Law Judge: This pro-
ceeding, brought under Section 10(b) of the National Labor
Relations Act, as amended (61 Stat. 136); herein called the
Act, was heard at Buffalo, New York, on December 19, 1974.
The complaint, dated November 5, 1974, based upon duly
served charges filed October 11, 1974, by Niagara County
Sheetmetal Contractors& Roofing Association, was issued
by the Regional Director for Region 3 (Buffalo, New York),
on behalf of the General Counsel of the National Labor Rela-
tions Board, herein called the General Counsel and the
Board.
The complaint alleged that Respondent had engaged in and
was engaging in unfair labor practices violating Section
8(b)(4)(ii)(B) of the Act.'
In its duly filed answer Respondent denied the commission
of any unfair labor practice.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS INVOLVED
At all times material Wind Heating Co., Inc., has been a
corporation duly organized under and existing by virtue of
the laws of the State 'of New York, and has maintained its
principal office and place of business in the city of Niagara
Falls, where it has been engaged as a heating and ventilation
contractor. During the year preceding issuance of the com-
plaint Wind in the course and conduct of its business opera-
tions purchased, transferred, and delivered to its New York
jobsites, goods and materials valued in excess of $50,000 of
which goods and materials valued in excess of $50,000 were
transported to said jobsites directly from States of the United
States other than the State of New York. DMC, Building
Corporation is a general contractor in New York State en-
gaged in the building and construction industry.
At all times material Wind and DMC have been employers
engaged in commerce within the meaning of Sections 2(6) and
(7) and 8(b)(4) of the Act.
II THE LABOR ORGANIZATION
At all times material Local 71, Sheetmetal Workers Inter-
national Association , AFL-CIO , has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
For about 8 years Wind Heating Co., has been a member
of the Niagara- County Sheetmetal Contractors & Roofing
Association. Prior to August 1974, the Association had a
bargaining relationship with Local 69, Sheetmetal Workers
International Association, AFL-CIO. In August 1974 a
Board election resulted in another union, the Niagara Fron-
tier Roofers and Sheetmetal Association' being certified as
the bargaining agent of the employees of the Contractors
Association's members. A collective-bargaining agreement
was entered into between the new union and the Contractors
Association effective from October 1974 through October
1977.
Since June 1974, DMC Building Corporation has been
engaged in the construction-of Niagara Geriatrics Center in
i This was an independent union which grew out of a split between
members of Local 69. Those members who did not throw in with the new
union began working out of Local 71, Sheetmetal Workers International
Association, AFL-CIO, Respondent herein , and Local 69 ceased to exist
217 NLRB No. 144
LOCAL 71, SHEETMETAL WORKERS
Niagara Falls. Edward Breidenstein, DMC's superintendent
in charge of the job testified as follows: In late September
during a conversation with Jack Kennedy, a plumbing con-
tractor, and Fred Brown, business agent of the Plumber's
union, Kennedy asked Breidenstein if anyone was doing the
heating and ventilating on the Geriatrics Center job. Breiden-
stein said yes, Charles Wind and Argy & Sons were doing or
being considered for the work. Brown spoke up, "Neither one
of them are union." Breidenstein said that his information
was that they were union. Brown said he would contact some-
one to get a hold of Breidenstein.,
The next morning John Williams, business agent for Local
71, called Breidenstein telling him he would drop off a list of
signed contractors and added that anybody bidding on the job
not on the list were considered nonunion. A short time later
Williams arrived at the field office and presented Breidenstein
with the list and told Breidenstein "Use anybody that is on
the list" Breidenstein asked, "What happens if somebody is
not on the list and gets awarded the contract?" Williams
replied, "You are inviting trouble." Breidenstein asked what
Williams meant by that and Williams answered, "We could
picket the job. We are presently picketing Argy & Sons in
Lockport." Breidenstein said that -he had to take the contrac-
tors word that he was union, that it was not his job to check
what union. In any event, Breidenstein said, he would "prob-
ably look over the list . . . and . . . might pick somebody
f r o m there... .
Thereafter Breidenstein called Phillips Sheetmetal in Buf-
falo about figuring the job. On the day that Phillips picked
up the plans and specifications Breidenstein learned that
Wind had definitely been awarded the job. So Breidenstein
called his boss in New York to tell him about Phillips just
having picked up the plans and specifications for the job
Wind had been awarded. Breidenstein's boss said "Let him
figure it anyway."
About a week later (after Phillips had submitted a bid)
Phillips called at the job and asked Breidenstein "How did we
do? . . . did we get the job?" Breidenstein told him that Wind
had gotten the job. Phillips left and in about 15 minutes
Breidenstein got a call from Williams. Williams said he heard
that Wind had gotten the job and went on to say, "I told you
if you used him what would happen . . . if anybody other
than those on that list were used on that job, that you would
have trouble and now I'm going to see that you have trouble."
Williams was using some foul language and Breidenstein said
. . don't talk to me that way" and hung up.
According to Williams' testimony his information from
Brown of the Plumbers Union was that Breidenstein wanted
to talk to him. So he called Breidenstein and "asked if he
would like a list of (Local 71's) signatory contractors." Brei-
denstein said he would so Williams took one to him. Williams
denied that at this time there was any mention or threat of
trouble or picketing regarding DMC's choice of a contractor
on the heating and ventilating or any mention of Argy &
Sons. About 3 weeks later, according to Williams' further
testimony, Breidenstein called him and told about having
called the International "to check to see if Wind Heating was
union or not, and he said that he found out, that Wind Heat-
ing was not union, and he said he was going, the job would
go to a union contractor." Williams said; "that is good. It is
better to have all union people on the job."2
857
Williams denied that the award of the job to Wind was
mentioned or that any threat of any kind was made in that
connection. On cross-examination Williams denied that the
Plumbers' business agent had told him anything about who
was bidding on the heating and ventilating on the DMC job
or gave any explanation of why he was to call Breidenstein.
From Williams' cross-examination it also appeared that Brei-
denstein had not indicated that he would like to have a list
of the Union's contractors. Williams simply told him that he
was going to get one. Williams also denied knowing at the
time what Wind or Argy was bidding the DMC job. Contrary
to this direct examination Williams also denied,on cross that
any discussion took place regarding the type of work involved
on the job when he talked to Breidenstein.3 On cross Wil-
liams also admitted that his union had been picketing Argy
& Sons sometime in 1974 but claimed he could not recall
when or where such picketing took place.
There is no question in my mind that Breidenstein's tes-
timony is more worthy of credence than Williams'. I so find.
I also find that Williams' conduct was directed to DMC with
an object to force or require DMC to cease doing business
with Wind and thus violated Section 8(b)(4)(ii) (B) of the Act.
CONCLUSIONS OF LAW
1. Wind Heating Co., Inc,, and DMC Building Corpora-
tion are each engaged in commerce within the meaning of
Sections 2(6) and (7) and 8(b)(4)(ii)(B) of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening to picket the Geriatrics Center construc-
tion site in Niagara Falls with an object of forcing or requir-
ing DMC to cease doing business with Wind, Respondent has
engaged in unfair labor practices within the meaning of Sec-
tion 8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Local 71 has engaged in unfair labor
practices warranting remedial order , I shall recommend that
it cease and desist therefrom d take certain affirmative
action designed to effectuate thb policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
Respondent Local 71, Sheetmetal Workers International
Association , AFL-CIO, its officers , agents, and representa-
tives, shall:
2 In his direct testimony Breidenstein had revealed that he had indeed
called the International to find out if Wind was union
3 On direct he had testified that he had asked Breidenstein "about the
ventilation and what type of work he had on the job."
4 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from threatening, coercing, or restrain- (c) Notify the Regional Director for Region 3, in writing,
ing DMC Building Corporation with an object of forcing or within 20 days from the date of, this Order what steps Re-
requiring DMC to cease doing business with Wind Heating spondent has taken to comply herewith.
Co., Inc.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act:
(a) Post at its business office, union hall, or any other place
where it customarily posts notices to its members, copies of
the attached notice marked "Appendix."5 Copies of said no-
tice, on forms provided by the Regional Director for Region
3, after being duly signed by an authorized representative of
Respondent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(b) Furnish the Regional Director for Region 3, signed
copies of such notice for posting, if willing, by DMC Building
Corporation at its Niagara Geriatrics Center project and by
Wind Heating Co., Inc., at its place of business in Niagara
Falls, in places where notices to employees are customarily
posted.
5 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten, coerce, or restrain DMC
Building Corporation with an object of forcing or requir-
ing it to cease doing business with Wind Heating Co.,
Inc.
LOCAL 71, SHEETMETAL WORKERS
INTERNATIONAL ASSOCIATION
AFL-CIO