M. J. Counihan, Business Agent, Local 508

National Labor Relations Board - Board DecisionsAug 3, 1959

124 N.L.R.B. 323 (N.L.R.B. 1959)

M. J. COUNIHAN, BUSINESS AGENT, LOCAL 508 323 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within Section 9 (b) of the Act : 2 All production and maintenance employees at the Employer's Crugers, New York, plant, excluding all office clerical employees, professional employees, watchmen, guards, and super- visors as defined in the Act. [Text of Direction of Election omitted from publication.] on August 1, 1958, and expiring on December 31, 1959, which contains a union-security clause . The record shows that the Intervenor was not in compliance with Section 9(f), (g), and ( h) of the Act at the time the contract was executed or during the preceding 12 months . Compliance was first achieved on January 30, 1959, before the filing of the instant petition in May. Under the rules set forth in Keystone Coat, Apron & Towel Supply Company, 121 NLRB 880 , the Board will recognize the validity of a union- security contract for contract -bar purposes , notwithstanding belated compliance prior to the filing of the petition , only if "initial steps to achieve such compliance were taken [by the contracting union] before the execution or renewal of the contract ." The in- stant record contains no evidence concerning any initial steps which may have been taken by the Intervenor . However, the Employer makes an offer of proof in its brief that prior to the execution of the contract , the Intervenor completed all necessary compli- ance forms and that the delay in submitting them until January 1959 was due to an in- advertent error on the part of the Intervenor 's clerical staff. We reject the offer of proof as untimely . Moreover, even if accepted , it falls short of satisfying the initial-steps requirement of the rule , which contemplates at the very least a filing of some pertinent document with the Regional Office. Nor do we believe that mere inadvertence warrants a departure from the established rule. Accordingly, for these reasons we hold the con- tract not to be a bar, without passing on the other issues raised in connection with the Intervenor 's claim. 2 The parties stipulated as to the appropriateness of the unit. M. J. Counihan , Business Agent , Local 508, International Broth- erhood of Electrical Workers, AFL-CIO and Peacock Con- struction Company Cecil Pittman, Business Agent , Local Union No. 188 , United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and Peacock Construction Company Local Union No . 188, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO and Peacock Construc- tion Company Local 508, International Brotherhood of Electrical Workers, AFL-CIO and Peacock Construction Company. Cases Nos. 10-CD-111, 10-CD-115, 10-CD-133, and 10-CD-134. August 3, 1959 DECISION AND DETERMINATION OF DISPUTES This proceeding arises under Section 10(k) of the Act, which pro- vides that "Whenever it is charged that any person has engaged in an 124 NLRB No. 43. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practice within the meaning of paragraph 4(D) of Section 8 (b), the Board is empowered and directed to hear and deter- ,mine the dispute out of which such unfair practice shall have arisen...." On March 9, 17, and 23, 1959, Peacock Construction Company, herein called Peacock, filed charges and amended charges with the Regional Director for the Tenth Region, alleging that Local 508,, International Brotherhood of Electrical Workers, AFL-CIO (here- in called Local 508), Local Union No. 188, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, AFL-CIO (herein called Local 188), and M. J. Counihan and Cecil Pittman, business agents of Locals 508 and 188 respectively, had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8(b) (4) (D) of the Act. It was charged, in substance, that from January 5 to January 15, 1959, and again on March 9, 1959, and there after, the above-named labor organizations and their officers and agents had induced and encouraged the employees of Peacock and Steel Erectors, Inc., to engage in a concerted refusal in the course of their employment to perform services for an object proscribed by the Act. The forbidden object, as alleged, was to force E. J. McMahon Company and Carter Electric Company, herein called McMahon and Carter, respectively, to assign particular work to employees in a par- ticular trade, craft or class, rather than to employees in another trade, craft, or class. Thereafter, pursuant to Section 10(k) of the Act and Section 102.79 and 102.80 of the Board's Rules and Regulations, the Regional Director investigated the charges. On March 24, 1959, the Regional Director issued an order consolidating the above-styled cases, and pro- vided for an appropriate hearing with due notice to the parties. A consolidated hearing was held before Arthur C. Joy, hearing officer,, on May 7, 1959. The Charging Party and all the Respondents ap- peared at the hearing and were afforded full opportunity to be heard,, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues. The rulings of the hearing officer made at the hear- ing are free from prejudicial error and are hereby affirmed.' The Charging Party filed a brief, which has been duly considered by the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with 'The Respondents objected to the conduct of the hearing by Hearing Officer Joy, on the ground that he had taken a position adverse to Respondents in another proceeding. No reference was made by the Respondents to any particular ruling of the hearing officer by which they were prejudiced . For the reasons stated in Heiter-Starke Printing Com- pany, Inc., 121 NLRB 1013 , we overrule the Respondents ' objection. M. J. COUNIHAN , BUSINESS AGENT, LOCAL 508 325 these cases to a three -member panel [Members Rodgers , Jenkins, and Fanning]. Upon the entire record in these cases , the Board makes the fol- lowing : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS The jurisdictional dispute here involved arose on a military con- struction project at Travis Field in Savannah, Georgia. Peacock was the general contractor at the project under a contract with the De- partment of Defense in the amount of $849,000. We find that Pea- ,cock's operations exert a substantial impact on national defense, and that it will effectuate the policies of the Act to assert jurisdiction in these cases.2 H. THE LABOR ORGANIZATIONS INVOLVED Locals 508 and 188 are labor organizations within the meaning of the Act. Counihan and Pittman are agents of the aforementioned labor organizations, respectively. III. THE DISPUTES A. The McMahon dispute McMahon was under subcontract with Peacock to perform certain plumbing and related work at the Travis project. In November of 1958, shortly before McMahon's work at Travis commenced, E. J. McMahon, the Company's president, received a telephone call from Pittman. According to McMahon, Pittman stated he would like to discuss the use of Pittman's men at the Travis project. Thereafter, in December 1958 or January 1959, Pittman met with McMahon at the job site, and, according to McMahon, requested the latter to replace his two employees on the project with members of Local 188. Mc- Mahon refused. On January 5, 1959, Local 188 began picketing the Travis project with a sign stating "McMahon Plumbing Company Unfair-Plumb- ers and Steamfitters L. U. 188." Thereupon, all workers at the project except those employed by McMahon and Carter left their jobs. This picketing continued until January 15, 1959, when Peacock ob- tained a State court injunction against Local 188. On March 2, this injunction was dissolved. Shortly thereafter, Local 188 resumed picketing. At this time, the picket sign stated "McMahon Plumbing Company Employing Unqualified Plumbers-Plumbers L. U. 188 AFL-CIO." Again, secondary employees at the project left their jobs. This picketing continued until April 10, 1959, when, upon a 2 See Ready Mixed Concrete & Materials, inc., 122 NLRB 318; Newark & Essex Plas- tering Co., 121 NLRB 1094. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition filed by the General Counsel under Section 10(1) of the Act, an injunction against Local 188 was issued by a Federal district court in Georgia. Shortly after the first picket signs appeared at the project, a meet- ing was arranged between Peacock, McMahon, Pittman, and several other interested parties. At this meeting, held on January 7, 1959,. Peacock asked Pittman why McMahon was considered unfair. Pitt- man stated he could not answer this question in the presence of the other parties, but agreed to speak with McMahon alone. The other parties then left the room. In the conversation which ensued, Pitt- man, according to McMahon, stated that McMahon was unfair be- cause he did not employ members of Local 188 on the Travis project. Pittman proposed a compromise whereby McMahon would replace one of his two employees currently working on the project with a mem- ber of Local 188, but McMahon refused, stating that the best he could do was to call Pittman if additional workers were needed. McMahon's: counteroffer did not satisfy Pittman, and the conversation terminated.3 B. The Carter dispute Carter was under subcontract with Peacock to perform electrical work at the Travis project. C. L. Peacock, of the Charging Party, testified that in July of 1958, a man identifying himself as Counihan telephoned and stated that Peacock should not give Carter the elec- trical work at Travis because Carter was unfair to Local 508. The caller threatened Peacock with "a lot of trouble" if Peacock should award the work to Carter. Early in January 1959, Peacock met with several trade union repre- sentatives, including Counihan, at the job site. Counihan testified that this was his first meeting with Peacock, and that he merely asked. him who was going to perform the electrical work at Travis. Peacock testified that he asked Counihan why he was being picketed, where- upon Counihan referred him to Pittman. Pittman told him to ask a Pittman testified that McMahon 's version of the conversation was incorrect, and' that at this meeting he merely protested that McMahon's employees had not received pro- ficiency cards from the city examining board , and further, that they were not Savannah, residents . Pittman stated that the compromise proposal came from McMahon, and not from himself. Apparently without Pittman's knowledge , a recording device was operating throughout this conversation . A transcript of the recording thus made was introduced into evi- dence at the hearing , but was subsequently withdrawn with the understanding that the Charging Party would endeavor to have a better transcription made after the hearing.. Although the original recording appears not to have been properly identified and authen- ticated , the Respondents stated to the hearing officer that they had no objection to the. introduction of the post -hearing transcript into the record , and the hearing officer, after the hearing was over, ordered such transcript so admitted . The transcript essentially supports McMahon 's version of the private conversation . For example , when one party, supposedly McMahon , stated , "So far as cutting off any of our men are concerned to make way for one of your union men, I couldn't agree to that at all," the other party, appar- ently Pittman, replied, "well, then it' s a stalemate as far as I 'm concerned." M. J. COUNIHAN, BUSINESS AGENT, LOCAL 508 327 McMahon, who, according to Pittman, knew the reason for the picketing. On January 16, the day after Local 188 was enjoined by the State court for picketing, Local 508 commenced picketing with a sign which read "Carter Electric Company is unfair to Local 508, Electricians,, AFL-CIO." This sign was removed after only a few hours, when the State court injunction was broadened to include Local 508. CONTENTIONS OF THE PARTIES The Respondents contend that the object of their picketing was not to require McMahon and Carter to assign particular work to Re- spondents' members, but rather to protest the hiring of employees who did not possess local certificates of qualification. They contend that a further object was to protest the hiring of workmen who were not Savannah residents, and that both of the aforementioned objects were privileged under the Act. Peacock, on the other hand, contends that the actual object of Respondents' picketing was to require McMahon and Carter to assign particular work to members of Locals 188 and 508, respectively, and that the other objects advanced by the Respondents were merely after- thoughts. In any event, Peacock argues that even assuming the sole objects of the picketing were as alleged by the Respondents, those ob- jects were themselves violative of Section 8 (b) (4) (D) of the Act. No defense is urged by Respondents on the basis of any Board order or certification, or any contract covering the disputed work. APPLICABILITY OF THE STATUTE Before the Board may proceed with a determination of a dispute pursuant to Section 10 (k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) of the Act has been violated by the Respondents. It is well settled that, where multiple objects are the targets of a union's inducement of secondary employees, the presence among them of but one proscribed object is sufficient to bring the union's conduct within the proscriptive ambit of Section 8(b) (4) (D).4 In the case before us, the evidence adduced by the Charging Party clearly estab- lishes that an object of the Respondents' picketing was to require McMahon and Carter to assign plumbing and electrical work at the Travis project to members of the Respondent Unions, rather than to employees already assigned the work. Such an object is plainly pro- scribed by the Act.' Thus, at a meeting on the job site, Pittman told McMahon he wanted him to send his own employees home and replace 4 Ernest Renda Contracting Co., Inc., 123 NLRB 1776 ; Cargill, Inc., 108 NLRB 313, 317. 5 See, e .g., Bechtel Corporation, 108 NLRB 823, 833; 112 NLRB 812, 818. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them with members of Local 188. The picket signs carried on Janu- ary 5 stated that McMahon was "unfair." At the meeting between Pittman and McMahon following the first appearance of the picket signs, Pittman told McMahon that the reason the latter was "unfair" was that he was not using Pittman's men on the job. Moreover, Pea- cock was told by Counihan that he would have trouble if he subcon- tracted the electrical work at Travis to Carter, because "Carter was unfair to his local." At the job site in January, Counihan informed Peacock that Pittman could tell him why he was "unfair." As noted above, Pittman referred Peacock to McMahon, who had been told previously he must use members of Local 188 at the Travis project. Without resolving certain conflicts in testimony as regards the above conversations,6 we are persuaded that there is reasonable cause to believe that an object of the Respondents' picketing was to require the reassignment of work from employees of McMahon and Carter to members of the Respondent Unions.' In view of this finding, we deem it unnecessary to pass on the issue of whether there were other objects .of the Respondents' picketing, and, if so, whether these objects were proscribed by the Act.' We find, accordingly, that the dispute involved in this proceeding is properly before the Board for determination under Section 10 (k) of the Act. THE MERITS OF THE DISPUTE An employer is free to make work assignments without being subject to those pressures proscribed by Section 8 (b) (4) (D) of the Act, unless the employer is failing to conform to an order or certifica- tion of the Board determining the bargaining representatives for em- ployees performing such work, or unless the employer is bound by an agreement to assign the work in dispute to the claiming union.' The Respondents have no order, certification, or contract claim to the work. Accordingly, we find that they are not entitled, by means proscribed by Section 8(b) (4) (D), to force or require McMahon or Carter to assign the disputed work to members of the Respondent Unions rather than to these employers' own employees." G Respondents ' witnesses gave different versions of some of these conversations. How- ever , it is unnecessary in this proceeding to resolve such conflicts in testimony. See Sline Industrial Painters , 119 NLRB 1725, 1729; The Southern New England Telephone Company, 1.21 NLRB 1061, footnote 3. 7 We find no merit in Respondents ' contention that the State court proceeding referred to supra is res judicata as to the object of Respondents ' picketing . See TV. T. Carter and Brother, et at ., 90 NLRB 2020, 2023, and cases cited therein. 8 See Worcester Telegram Publishing Company, Inc ., 121 NLRB 793 , footnote 3. ° Juneau Spruce Corp., 82 NLRB 650. 10 By this action , however , we are not to be deemed as making an "assignment" of the disputed work. In declining to make such an affirmative work award, we respectfully dis- agree with the decision of the United States 'Court of Appeals for the Third Circuit in N.L.R .B. v. United Association of Journeymen and Apprentices, etc. (Frank W. Hake), 242 F. 2d 722 . See Newark & Essex Plastering Co., supra. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC. DETERMINATION OF DISPUTES 329 On the basis of the foregoing findings, and upon the entire record in these cases, the Board makes the following determination of disputes, pursuant to Section 10(k) of the Act: 1. Local Union No. 188, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, and its agents, including Cecil Pittman, are not and have not been lawfully entitled to force or require E. J. McMahon Company to assign the work in dispute to members of Local 188, rather than to McMahon's own employees. Local 508, International Brotherhood of Electrical Workers, AFL-CIO, and its agents, including W. J. Counihan, are not and have not been lawfully entitled to force or require Carter Electric Com- pany to assign the work in dispute to members of Local 508, rather than to Carter's own employees. 2. Within 10 days from the date of this Decision and Determina- tion of Disputes, Local Union No. 188, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, AFL-CIO, and Cecil Pittman, shall notify the Regional Director for the Tenth Region, in writing, whether or not they will refrain from forcing or requiring E. J. McMahon Company, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to members of said Re- spondent Union rather than to employees of McMahon. Within 10 days from the date of this Decision and Determination of Disputes, Local 508, International Brotherhood of Electrical Workers, AFL-CIO, and M. J. Counihan, shall notify the Regional Director for the Tenth Region, in writing, whether or not they will refrain from forcing or requiring Carter Electric Company to assign the work in dispute to members of said Respondent Union rather than to employees of Carter. The Great Atlantic and Pacific Tea Company , Inc. and Retail, Wholesale and Department Store Union , AFL-CIO. Cases Nos. 10-CA-3318 and 10-RC-3909. August 5, 1959 DECISION AND ORDER On March 30, 1959, Trial Examiner Albert P. Wheatley 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, and recommending further that the election held in Case No. 10-RC-3909 be set aside and a new 124 NLRB No. 41.