Millwrights Local 1102

National Labor Relations Board - Board Decisions

Dec 16, 1966

162 N.L.R.B. 217 (N.L.R.B. 1966)

MILLWRIGHTS LOCAL 1102 217
We WILL NOT give any force or effect to the collective-bargaining agreement
executed by us on November 23, 1963, with the above-named labor organiza-
tion or to any modification, extension, renewal, or supplement thereto.
WE WILL NOT encourage membership in the above-named labor organization
or discourage membership in Local 509, International Union of United Auto-
mobile, Aerospace and Agricultural Implement Workers of America, AFL-
CIO, or any other labor organization, by discriminating with respect to the
hire, tenure, and terms and conditions of employment of any employees.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such rights are
affected by an agreement requiring membership in a labor organization as
authorized in Section 8(a)(3) of the Act.
FRUEHAUF TRAILER COMPANY,
Employer.
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 other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone 688-5229.
Millwrights Local Union 1102, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO and Dobson Heavy Haul,
Inc. and Darin & Armstrong, Inc. Cases 7-CC-329 and 333.
December 16, 1966
DECISION AND ORDER
On June 17, 1966, Trial Examiner William W. Kapell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief. The General
Counsel and Charging Party filed limited exceptions to the Trial
Examiner's Decision and briefs in support thereof.
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 these cases to a three-member
panel [Members Fanning, Brown, and Zagoria].
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
162 NLRB No. 6.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner, with the modifications 1 noted
below.
1. In adopting the Trial Examiner's finding that Respondent was
accountable for the work stoppage and picketing, we particularly
note the following : Respondent has had a continuing dispute with
Dobson and previously has been found by the Board to have engaged
in unlawful picketing at a different jobsite in furtherance thereof.2
In the instant matter, Respondent's steward, Morris Dale, requested
Dobson's foreman to replace the riggers with its member millwrights,
and when Darin & Armstrong millwrights stopped work because of
the dispute and put away their tools and departed, he left the build-
ing before the end of the work shift. Although Respondent advised
Darin & Armstrong that the work stoppage was unauthorized, it
failed to similarly advise representatives of the Building' Trades
Council at a meeting•on February 8 at which this subject was dis-
cussed. At that meeting, Jack Linn, Respondent's representative, was
advised by representatives of other crafts that the presence of the
picket line would not be honored unless it remained throughout the
day. Significantly, this advice was quickly acted upon by the strikers
for beginning the very next day the pickets remained at the jobsite
until early afternoon. These facts, coupled with Respondent's failure
to take steps reasonably calculated to terminate this allegedly "unau-
thorized strike" reveal that Respondent knowingly adopted, sup-
ported, and ratified the work stoppage and picketing.'
2. The arguments advanced by our dissenting colleague raise noth-
ing that has not already been presented to the courts and rejected by
them. Local 5, Plumbers [Arthur Venneri Co.] v. N.L.R.B., 321 F.2d
366 (C.A.D.C.) ; N.L.R.B. v. Local 282, Teamsters, 344 F.2d 649
(C.A. 2) ; N.L.R.B. v. Local 1291, Longshoremen's Association, 332
F.2d 559 (C.A. 3). Contrary to assertions in the dissent, we do not
'In the earlier proceeding ( footnote 2, infra ), Respondent was ordered to cease picket-
ing to cause Dow Chemical Company to cease doing business with Dobson Because that
order was too limited to cover the activity herein, the General Counsel and the Charging
Party have requested that the instant order be expanded to forbid such secondary activity
not only as to the employers herein affected but also as to "any other employer ." Since
allegations of secondary boycott activity by Respondent against Dobson have been the sub-
ject of two settled proceedings within the past 3 years as well as that of Dow Chemical
as heretofore indicated , it is clear that Respondent's dispute with Dobson is a continuing
one As Respondent has demonstrated a proclivity for engaging in secondary activity in
furtherance of its dispute , we find merit in these exceptions Accordingly , paragraph 1(a)
of the Trial Examiner ' s Recommended Order and the companion notice is modified to re-
quire desistance as to "any other employer." See Glaziers Local Union No. 513, etc, 158
NLRB 1621 Local 25 , International Brotherhood of Electrical Workers , AFL-CIO, 157
NLRB 7151 Local 282, International Brotherhood of Teamsters , etc, 146 NLRB 956, 963;
International Brotherhood of Electrical Workers, Local 861, AFL-CIO, 143 NLRB 1169
2Millwrights Local Union No. 1102, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (Dobson Heavy Haul, Inc ), 155 NLRB 1305.
3 Compare Teamsters Local 783, etc, 160 NLRB 1776.
MILLWRIGHTS LOCAL 1102 219
find that Respondent violated the Act by claiming the work involved
or even by exerting economic pressure on primary employer, Dobson
Heavy Haul, to effect that result. Rather, we find that Respondent's
failure to confine such pressure to the immediate disputants and its
involvement of secondary employers or "neutrals" to the controversy
constituted a use of unlawful means to force reassignment of the
work in violation of the Act. Thus, the record amply supports the
Trial Examiner's finding that Respondent's conduct "induced the
employees of the neutral contractor-employers on the job to refuse
to handle goods or perform services, thereby coercing and restrain-
ing these neutral contractors, all for an object of requiring or forcing
Cunningham-Limp to cease doing business with Dobson." Initially,
Respondent solicited the assistance of representatives of Darin &
Armstrong and of Cunningham-Limp to support its request of Dob-
son Heavy Haul that the work be reassigned to its members. When
these efforts proved unsuccessful, Respondent caused a work stoppage
at neutral contractor, Darin & Armstrong, and thereafter began
picketing. The picketing, which neither identified the primary con-
tractor nor was limited to places reasonably close to the situs of the
dispute, disrupted operations of other neutral subcontractors. And
it is clear that Respondent's conduct was not directed at Dobson
Heavy Haul or its employees but at employers and employees not
parties to the dispute for the purpose of enmeshing them in the pri-
mary dispute. As such conduct exceeded the limits of lawful primary
picketing, we agree with the Trial Examiner that Respondent vio-
lated Section 8(b) (4) (i) and (ii) (B) of the Act.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Paragraph 1(a) is amended by adding after the name
"Cunningham-Limp Co." in the last line of that paragraph, the fol-
lowing : or any other employer, ..."
[2. The notice is amended by adding after the name "Cunningham-
Limp Co.", in the next to the last line of the indented paragraph, the
following : "or any other employer, ..."]
MEMBER Fanning, dissenting :
In my dissenting opinions in the two cases captioned Local 5,
Plumbers [Arthur Venneri Company], 137 NLRB 828,' 834, and
145 NLRB 1580, 1601, I argued for an accommodation of Section
8(b) (4) (B) and (D). It was and is my view that where a union
engages in conduct in the course of a true jurisdictional dispute
which may be alleged as a violation of Section 8(b) (4) (D), I would
not find such conduct to be a violation of any other section of the
'Affirmed in pertinent part, 321 F.2d 366, cert denied 375 U.S 921.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. This is just such a case and should, for the reasons set forth
below and at some length in my Venneri opinions, be considered
under the procedures provided in Sections 10(k) and 8(b) (4) (D) of
the Act, rather than prosecuted as a secondary boycott.5
The facts with respect to the nature of the dispute giving rise to
this case are not contested and demonstrate that Respondent's sole
object was to force Dobson to assign certain work to millwrights
rather than to its employees who were members of Riggers Local
575. Thus, both Darin & Armstrong and Dobson, along with other
contractors, were performing certain services on General Motors
building 36 at its Flint, Michigan, Buick plant, under contracts
initially let by General Motors. In part, both Darn & Armstrong and
Dobson were performing similar tasks at the worksite. The first
incident in the dispute occurred when Dale, Respondent's steward
for Darn &,Armstrong, learned that riggers were employed by Dob-
son to, perform work which the millwrights employed by Darin &
Armstrong contended should have been performed by millwrights
(and which was being performed for Darin & Armstrong by mill-
wrights). Dale and an employee of Cunningham-Limp, Dobson's
general contractor on the job, then proceeded to Dobson's work loca-
tion at building 36 and asked Dobson's foreman to replace his rigger
employees with millwrights, members of Respondent. The dispute
was not satisfactorily resolved, and the initial walkouts occurred
later in the day. On the following Monday, millwrights began picket-
ing the jobsite with signs reading, "Millwright Work Pirated By
Other Craft. Unfair." Subsequently, Linn, Respondent's assistant
business representative, asked some of the striking millwrights to
return to work. The employees refused to do so, however, as long as
riggers employed by Dobson were performing millwright work.
It is apparent-from the facts outlined above that this entire dis-
pute, involving the two crafts and the various contractors working
at building 36, erupted only because of Respondent's claim for cer-
tain of Dobson's work being performed by members of Riggers Local
575. The sole object of Respondent's economic pressure was to obtain
the disputed work for its members; an object which could be achieved
without the removal of Dobson from the project. Nowhere in the
record is there support for a finding that even "an" object of
Respondent was to force General Motors or Cunningham-Limp to
cease doing business with Dobson by removing Dobson from the job.
Indeed, the Trial Examiner himself expressly recognizes and labels
the dispute as being jurisdictional in nature, as did counsel for the
General Counsel during the course of the hearing. Therefore, and in
5 For judicial support for this position, see the companion cases captioned N.L.R.B. v.
Local 825, International Union of Operating Engineers [ Nichols Electric Co.], 326 F 2d
213 (C.A 3), affg. 140 NLRB 458, and 326 F.2d 218 ( C.A. 3), denying enforcement 138
NLRB 540.
MILLWRIGHTS LOCAL 1102 221
accordance with the views in my separate Venneri opinions, I believe
that it would most fully effectuate the policies of the Act to have
proceeded under those Sections-10(k) and 8(b) (4) (D)-which
Congress enacted specifically for the purpose of resolving jurisdic-
tional disputes, rather than under the Act's secondary boycott pro-
visions.
An instructive lesson in the dichotomy between Section 8 (b) (4)
(D) and (B) is provided by the companion opinions of the United
States Court of Appeals for the Third Circuit in the Local 825
cases, supra, at footnote 5. The Board, in separate proceedings, found
the respondent union there in violation of both Section 8(b) (4) (D)
and (B), arising out of the same series of events. The court first en-
forced the Board's order in the 8 (b) (4) (D) case, finding that the union
had engaged in prohibited economic conduct to obtain work to which it
was not entitled and which had been assigned to members of another
labor organization. The court refused, however, to enforce the
Board's Order in the 8(b) (4) (B) case. In part, the court stated as
follows : 6
But the undisputed evidence, as set forth in our opinion in No.
14,331, 326 F. 2d 213, shows that the operating engineers left
their jobs for the purpose of preventing the electricians
employed by Nichols from operating the power auger and winch.
There is simply no evidence that an object of this action was to
force their own employers to cease doing business with Nichols.
To put the matter another way, the record conclusively demon-
strates that the work stoppage was merely an incidental conse-
quence of the efforts of the engineers to prevent the operation
of the power equipment by the electricians, and to compel
Nichols to assign the work to them. In order to do this they had
to leave their jobs, but this does not mean that in doing so they
sought to compel their employers to cease doing business with
Nichols. In short, the conduct of the union was directed against
Nichols and only incidentally did it affect [other employers at
the jobsite].
In sum, Respondent's activities against Nichols constituted a
violation of the jurisdictional dispute section of the statute. The
Board so found, and we have already stated that we will enforce
its decree in that regard [citation omitted]. But the Board has
gone further in this case and has attempted to convert that
activity into a violation of Section 8(b) (4) (i) (ii) (B). The rec-
ord will not support the attempt.
And so it is here.
6 326 F.2d at 220-221.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The difficulty arising from the failure to process the present case
under the jurisdictional dispute provisions of the Act is highlighted
when this case is viewed in juxtaposition with the Board's recent
Decision and Determination of Dispute in Millwrights Local Union
No. 1102, Carpenters [Don Cartage Company], 160 NLRB 1061.
Both cases involve the same dispute between the same two local
unions in the same geographical area as to which is entitled to per-
form the same work, claimed by both. In Don Cartage, certain of
the disputed work was awarded to Millwrights Local Union No.
1102, Respondent herein, and the remainder to Riggers Local No.
575.' It is clear from this record that the work in dispute in this
case would be encompassed within the Board's award in Don Cart-
age. It is also clear that the disputed work being performed by rig-
gers employed by Dobson, and claimed as millwrights' work by the
Respondent, falls within that portion of the work awarded to Mill-
wrights Local Union No. 1102 in Don Cartage. Thus, Respondent's
members here protested when riggers employed by Dobson began
drilling holes and started leveling, aligning, and anchoring machin-
ery-work defined as belonging to millwrights under the Don Cart-
age award.8 Moreover, and in contrast with Dobson's assignment of
the disputed work to riggers, Darin & Armstrong divides its ma-
chinery installation work between the two crafts in accordance with
the Dunlop Award 9 (and, as noted above, consistent with the Board's
determination in Don Cartage). Under its division, as indicated
above, the specific work in dispute is performed by its millwright
employees.
In Don Cartage, the Board undertook to resolve-finally and
peacefully-a work dispute of some 20 years' standing between the
two unions involved in that case (and in this). After lengthy and
careful deliberation, it awarded portions of the disputed work to
each craft, an award to control the relationship of these unions and
the companies with which they do business in an 18-county area. In
short, through the award, the Board sought to achieve industrial
stability in this broad area , beneficial to employers, employees, and
the public, as well as to the two unions themselves. Application of
that award to disputes such as the one involved here would, I believe,
accomplish that purpose. Instead, a classic jurisdictional dispute is
treated by the General Counsel and the majority herein as an entirely
different type of dispute, to be governed by a different section of the
Act and under different procedures. The net result is that the
Respondent Union is found guilty of violating Section 8 (b) (4) (B)
7 At pp. 1OS2-83.
8 At p. 1083.
9 See Don Cartage, supra, p. 4, et seq.
MILLWRIGHTS LOCAL 1102 223
of the Act for claiming the very work to which the Board held it
was entitled-and which, under the jurisdictional dispute provisions
of the Act, it could apply economic pressure to secure-in the Don
Cartage award. This anomalous result does justice neither to the
Respondent nor to the statutory scheme designed by the Congress.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASES
Cases 7-CC-329 and 7-CC-333, proceedings under Section 10(b) of the National
Labor Relations Act, as amended , herein called the Act, were heard before Trial
Examiner William W. Kapell on April 26 and 27, 1966,1 in Detroit , Michigan, with
all parties participating pursuant to due notice on a consolidated complaint 2 issued
on March 15 by the Regional Director of Region 7 of the National Labor Relations
Board , hereinafter called the Board , alleging violations of Section 8(b) (4) (i) and
(ii)(B) of the Act by Millwrights Local Union 1102, United Brotherhood of Car-
penters and Joiners of America , AFL-CIO, hereinafter referred to as the
Respondent.
The complaint, in substance , alleges that Respondent since on or about Febru-
ary 7 caused its employee -members to engage in a work stoppage and refusal to
perform work for D & A, and picketed building 36 , Buick Motor Division , General
Motors Corporation , Flint, Michigan , hereinafter referred to as building 36; that
employees of D & A and other persons were induced and encouraged to engage in
strikes or refusals in,the course of their employment to handle or work on goods
or to - perform services , thereby coercing and restraining 'their employers; that
Respondent has refused to furnish millwrights to D & A to work at building 36
although obligated to do so under its collective -bargaining contract ; and that an
object of Respondent's conduct was to force or require General Motors, D & A,
and other persons to cease handling the products of, and to cease doing business
with, Dobson . Respondent in its duly filed answer and as the result of stipulations
entered into the hearing , denied only those allegations in the complaint pertaining
to its alleged violative conduct.
All parties were afforded full opportunity to be heard , to introduce relevant evi-
dence, to present oral argument and to file briefs . General Counsel, Dobson, and
Respondent filed briefs which have been duly considered . Upon the entire record
in the cases,3 and from my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. COMMERCE
Dobson , a Michigan corporation , is engaged in the transporting , moving, erecting,
and storaging of machinery in the State of Michigan and other States. During the
calendar year 1965 it rendered services valued in excess of $100 ,000 to General
Motors Corporation , and at all times material herein was performing services for
Cunningham-Limp Co., a general contractor at building 36, pursuant to a contract
calling for installation services valued in excess of $50,000.
Cunningham-Limp Co., a Michigan corporation , is engaged in general contracting
in industrial construction . During the calendar year 1965 it rendered services to
General Motors Corporation valued in excess of $100,000, and during the same
period performed services valued in excess of $50 ,000 directly for customers located
outside the State of Michigan.
D & A, a Michigan corporation , is engaged as a general contractor in industrial
construction and installation of machinery . During the calendar year 1965 it ren-
dered services to General Motors Corporation valued in excess of _$1 million, and
1 All dates hereafter refer to the year 1966 unless otherwise noted.
2 Based on a charge filed on February 7 in Case 7-CC-329 by Dobson Heavy Haul, Inc.,
hereinafter referred to as Dobson ; and a charge filed on February 15 In Case 7-CC-333
by Darin and Armstrong, Inc., hereinafter referred to as D & A. Said cases were con-
solidated for hearing by an order issued by the Regional Director on March 15.
3 Respondent 's unopposed motion to correct the transcript is granted as moved therein.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at all times material herein was performing construction and machinery installation
services for General Motors Corporation at building 36, pursuant to their contract,
the gross revenue of which exceeds $100,000, and also during the calendar year
1965 performed services valued in excess of $50,000 directly for customers located
outside the State of Michigan.
D & A also subcontracted certain construction work at building 36 to: Manu-
facturers Electric Company, Maintenance Engineers Company, Franklin Electric
Company, Ben Agree Co., Fisher and Wright Plumbing Company, all Michigan
companies whose subcontracts call for construction services to be performed at
building 36, the gross revenue of each being in excess of $50,000.
General Motors Corporation, a Delaware corporation, is engaged in the manu-
facture of vehicles and parts, and during the calendar year 1965 shipped vehicles and
parts valued in excess of $1 million from its plants in Flint, Michigan, directly to
points located outside the State of Michigan. General Motors Corporation has also
directly let contracts to the following contractors for construction work at building
36, each of which calls for services valued in excess of $50,000: John Miller Electric
Company, Newkirk Electric Company, and Fisher and Wright Plumbing Company,
all of which are located in Michigan.
I find that at all times material herein, Dobson, D & A, General Motors Corpora-
tion , Cunningham-Limp Co., Manufacturers Electric Company, Maintenance Engi-
neers Company, Franklin Electric Company, Ben Agree Co., Fisher and Wright
Plumbing Company, John Miller Electric Company, and Newkirk Electric Com-
pany, have been employers engaged in commerce within the meaning of Sections
2(5) and 8(b)(4) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits , and I find, that it is, and at all times material herein, has
been, a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Riggers Local No. 575, International Association of Structual and Ornamental
Iron Workers of America, AFL-CIO, hereinafter referred to as Riggers, and
Respondent have been involved in a long continued jurisdictional dispute concern-
ing the moving, unloading, installing, and dismanteling of heavy machinery. The
dispute has been the subject of frequent litigation before the Board and has also
carried to and considered by the Building and Construction Trades Department of
the AFL-CIO, National Joint Board for Settlement of Jurisdictional Disputes?
B. The facts
In November 1965, D & A began installing certain machinery in a new addition
to the north end of building 36, pursuant to a contract with General Motors,
for which it employed members of various construction crafts, including Riggers,
Operating Engineers , Laborers, Carpenters (Millwrights), and Iron Workers. It
assigned the work of unloading the machinery, moving it to location and setting it
over the anchor bolts to members of Riggers while the work involving the layout
to the anchor bolts, drilling the holes, and aligning and leveling the machinery was
assigned to millwright-members (29 in number) of Respondent. These millwrights
were obtained by D & A pursuant to its collective-bargaining agreement with
Respondent, which was required to furnish them upon request. D & A also employed
members of Operating Engineers to run the power to handle its equipment. In addi-
tion to the work performed by its own employees, D & A also subcontracted some
of its construction work to several subcontractors at the jobsite.
Cunningham-Limp Co., also under contract to General Motors to perform cer-
tain services at building 36, subcontracted part of such work to Dobson, which
4 See the following cases of which I take official notice : Millwrights Local Union No. 1102
et al. (Don Cartage Co.), 154 NLRB 513, remanded 61 LRRM 2690 (C.A.D.C.) ; and
Millwrights Local Union No. 1102 (Dobson Heavy Haul, Inc.), 155 NLRB 1305. Respond-
ent's assistant business representative also testified that during the past 2 years Respond-
ent has picketed Dobson on about seven other jobs because it was using members of Riggers
to do work claimed by Respondent for its millwrights.
MILLWRIGHTS LOCAL 1102 225
began to perform such services during the latter part of January, about 500 feet
from the north end of building 36 where D & A's millwrights were working, and
not readily visible because of intervening obstructions . Dobson employed members
of Riggers to perform its subcontract work, which consisted of unloading automatic
machinery furnished by General Motors, moving it into position , and making it
ready to operate , work, in part, similar in nature to that performed by D & A's
millwrights.
During the early afternoon of February 5, Morris Dale, Respondent 's steward
for the millwrights on the D & A job was informed by a few millwrights that
members of Riggers were doing the work of millwrights for Dobson on another
part of the jobsite . He thereupon went to the office of D & A, where he discussed
the matter with Pat Berna, D & A's superintendent , Jesse Keown , the general fore-
man and one , Barrow, an employee of Cunningham -Limp , whom he met there.
Barrow then asked Dale to accompany him to the location where Dobson's men
were working . After arriving there Barrow and Dale asked Dobson's foreman to
replace the riggers , members of Riggers , with millwright-members of Respondent.
At that time Dale noticed that "Dobson 's riggers were drilling holes, work he
claimed to be within the jurisdiction of Respondent . When Dobson 's foreman stated
that only the superintendent could comply with their request , Barrow volunteered
to get ' him, stating that he was in the Foundry building, and left to find him After
waiting for about 20 minutes during which time neither Barrow nor Dobson's
superintendent appeared , Dale returned to the D & A office . There he met employ-
ees Thomas and Hodges , millwrights working for D & A, and asked them to
accompany him to Dobson's working site . On the way they met Barrow, who
advised them that he was unable to find Dobson 's superintendent , and that Dob-
son's riggers were still on the job. Dale , thereupon , returned to the D & A office
where he found the millwrights gathering at the toolcrib putting their tools away.
He allegedly did not speak to the men , and was called to the telephone to talk to
Jack Linn ,5 who had meantime been called by one of the other employees and had
expressed a desire to speak to Dale . Dale advised Linn on the telephone about the
trouble and that the men had quit working and were about to leave the job. Linn
asked him to keep the men on the job, and said he would be out to the job the
first of the week to straighten out the matter. Between 3 : 30 and 4 p .m. all D & A's
millwrights left the job in small groups after putting away their tools despite Dale's
request to remain on the job until the matter was straightened out. Soon thereafter,
Dale and Jesse Keown , the general foreman , also left . The following morning, Sun-
day, the millwrights were scheduled to work , but only Keown and Dale appeared
at the job .6
On February 7 none of D & A 's millwrights reported for work. Dale, however,
showed up at the jobsite where he saw pickets. He recognized them as millwright-
employees of D & A but said nothing to them and drove through to the parking
lot. The pickets carried signs reading : "Millwright Work Pirated By Other Craft.
Unfair." The picketing continued until March 14, and took place at the north and
south ends of building 36 and also at building 71, the Foundry , about a quarter
of a mile away from building 36, where D & A was also using millwright -members
of Respondent . 7 The testimony is in conflict as to whether Dale did any picketing.
Berna testified that he saw him with the other pickets on one occasion but Dale
denied ever picketing . The picket line was honored by the other crafts, and even
D & A's riggers could not work and were sent home because the operating engi-
neers were not there to man the power.
5 Assistant business representative of Respondent.
9 Dale testified that he not only appeared at the job but also reported for work on that
and the following day or two , but was neither assigned any work nor paid for reporting.
Pat Berna , D & A's job superintendent , testified that only Keown actually reported for
work but did not work and was compensated for showing up in order to retain his good will
.and as an accommodation to him, and that Dale showed up at the job but did not report
for work and was not compensated . Berna's testimony appeared to be trustworthy and is
credited.
7 During the hearing counsel for Respondent stated : "I have no doubt that there was
picketing and we have no reason to believe that it did not occur at the places where people
said they saw pickets-except that there was no picketing the two times that Linn went
around the place to look for pickets
264-047-67-vol. 162-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Early Monday morning (February 7), Berna telephone Linn and asked hini
about the picket line at the jobsite. Linn denied having any knowledge of it and
said he would look into it as soon as possible. He then telephoned George Horn,
Respondent's business representative and his superior, and informed him of what
had occurred at building 36. Horn admonished him not to go near the picket line
because he had done this once and the Board held him responsible for the picket-
ing. Linn thereafter drove by the jobsite about 10 a.m. and on to the Rainbow
Bar, which was located about a mile away and used as a meeting place for mill-
wrights. There, he met several millwrights who complained to him that Dobson's
riggers were doing their work. According to Linn, he asked them to return to
work but they refused. He, however, made no reply when they refused and left.
During that morning he also received calls from the business agents of the Elec-
tricians, Pipefitters, and Operating Engineers, who inquired about the picket line
because their people were off the job. Linn, in reply, told them what he had heard
in conversations with his members.
The following morning he again visited the Rainbow Bar where he met some
of the millwrights. He again asked them to return to work but they replied that
they would not do so as long as Dobson's riggers did their type of work. Linn
then left to attend a regular weekly meeting of the Building and Trades Council
of Flint. There, he met the business agents of the various construction crafts, includ-
ing Carl Feeman, business agent of the Riggers, with whom he discussed the juris-
dictional dispute at building 36. During the meeting the business agents of some
of the other crafts questioned Linn about the trouble at building 36 and the fact
that the picket line remained at the jobsite for only about an hour in the morning.
They admonished him that the picket line would not be honored unless it remained
throughout the day.8 Linn parried all questions by stating that he had no comment.
. The following Tuesday, February 15, Linn and Feeman attended another meeting
of the Trades Council. Two striking millwrights, Stubbs and Miller, also attended
the meeting after unsuccessfully seeking Linn's assistance to arrange for their
appearance and then prevailing upon the chairman of the Council to permit their
appearance .9 Stubbs then addressed the meeting, stating that their picket line was
a spontaneous action by the employees and that Respondent had nothing to do
with it. Linn made no reference to the comments of Stubbs but indicated that he
was opposed to the action that the members had taken, and he was subjected to
criticism by the other business agents because of his inability to handle his
membership.
While the above-described events were taking place, C. D. Connelly, D & A's
coordinator, whose authority included personnel matters, sent a telegram on Feb-
ruary 7 to Respondent inquiring whether the strike was authorized, and if not, to
have the men return to work. On February 8 he received a reply from Respondent
stating that the millwrights were not authorized to participate in the work stoppage,
and attempts were being made to keep the men on the job. On February 11 Con-
nelly sent another wire to Respondent stating that unless it complied with its wire
of February 8, other available personnel would complete the job. He received no
reply to this wire, and 2 days later assigned the incompleted work to members of
Riggers, who thereafter finished the work. Meanwhile telegrams were sent by
Respondent to its International president concerning the work stoppage, and in
reply received a wire directing it to remove the picket line and return the men to
work. The picketing however continued until March 14. Between February 5 and
14, Respondent referred about 25 of its millwrights to other jobs, 9 or possibly
more of whom had been working for D'& A on building 36. On March 15, Linn
called D & A to advise it that the picket line had been removed and he inquired
whether they wished to place an order for millwrights.
Conclusion
The applicable statutory provisions in Section 8(b)(4) of the Act prohibit unions
or their agents from inducing employees of secondary or neutral employers to
refuse to handle goods or perform services, and from restraining or coercing second-
ary employers, where an object is to force or require a secondary employer to
cease doing business with the primary or disputing employer. The only employer
8It appears that thereafter the pickets remained at the jobsite daily until early afternoon.
e Prior to granting permission to appear, the chairman first ascertained from the
delegates that no one, including Linn, objected.
MILLWRIGHTS LOCAL 1102 227
directly involved in the labor dispute with Respondent at the jobsite was Dobson
because of its refusal to replace its riggers with millwrights. The other employers,
including D & A, had no labor dispute with Respondent. It is now well settled that
the above provisions were intended to shield unoffending employers from pres-
sures in controversies not their own.io Respondent does not deny either the work
stoppage of D & A's millwright-employees or their picketing. The evidence estab-
lishes, and I find, that the picketing induced the employees of the neutral contractor-
employers on the job to refuse to handle goods or perform services, thereby coercing
and restraining these neutral contractors, all for an object of requiring or forcing
Cunningham-Limp to cease doing business with Dobson.
The gist of Respondent's defense is that its member-employees of D & A acted
spontaneously on their own in engaging in a work stoppage and picketing and
that, therefore, Respondent is neither responsible nor liable for their action. In
support of its position, Respondent cites, "Sunset Line and Twine Co., (ILWV
Local 6 et al.), 79 NLRB 1487, to the effect, "that a member of a labor union is
not per se an agent of the Union," that the burden of proof is on that party assert-
ing an agency relationship; that although agency is a contractual relationship, the
principal's consent, technically called authorization or ratification, may be mani-
fested by conduct, sometimes even passive acquiescence as well as by words; and
that authority to act as agent in a given manner will be implied whenever the
conduct of the principal is such as to show that he actually intended to confer
that authority. Respondent then asserts that General Counsel has not met the
burden of proving (1) the existence of agency relationship or the nature and
extent of any alleged agent's authority, and (2) the existence of any contractual
relationship essential to a showing of agency. General Counsel and Dobson con-
tend that the record as a whole establishes that Respondent caused, ratified, and
maintained the walkout of D & A's millwright-employees for the purpose of so
disrupting the work at building 36 as to cause Cunningham-Limp Co. to cease
doing business with Dobson. Dobson also asserts that Respondent engaged in,
induced, or encouraged the picketing for objects proscribed by the Act.
Obviously D & A's millwrights were engaging in a strike when all of them,
including Dale, walked off the job." Moreover, this mass action was inspired as
the result of Dale's unsuccessful effort to have Dobson's riggers replaced with mill-
wrights. Even assuming that Dale attempted to prevail upon the millwrights to
remain on the job on February 5, it also appears by his own admission that he
neither said anything to the pickets when he found them at the jobsite on Feb-
ruary 7, nor did anything about it. Also, on one occasion, he was seen congregat-
ing with the pickets if not actually picketing. Nor did Linn advise the business
agents of the other crafts, who called him on the morning of February 7 to inquire
about the picketing, that it was unauthorized. He merely explained that he had
been told by his members about the jurisdictional dispute at the jobsite. Further-
more, when he was told by the millwrights at the Rainbow Bar on February 8 that
they refused to return to work as long as Dobson's riggers continued on the job,
he made no reply to them, although he admitted that the Union's constitution pro-
vided for disciplinary measures to be imposed for unauthorized work stoppages.
His only explanation for his failure to either threaten or pursue such measures
was that no charges had been filed against the offending members and, therefore,
he was powerless to act.ia His complacency under these circumstances and his fail-
ure to affirmatively pursue any course of action strongly raises a suspicion that he
neither expected nor desired the men to return to work in conformance with
Respondent's position in the jurisdictional dispute, and that his request to the
millwrights to return to work was purely perfunctory in nature and so understood
by the men. Of even greater import was the position taken by Respondent when
it referred striking millwrights to other jobs. Not only was nothing done to them
because of their refusal to return to work, but they were actually supported and
assisted in carrying out their "unauthorized" work stoppage and picketing by being
given referrals to other jobs, while at the same time Respondent was failing or
refusing to supply replacements to D & A. Such action strongly suggests and, in
fact, implies that Respondent condoned and ratified the walkout of D & A's mill-
wrights despite its ostensible vocal objection. It was only after the picket line was
10 N.L.R.B v. Denver Building and Construction Trades Council, et al. , 341 U.S. 675, 692.
11 Section 501(2) of the Act defines the term "strike" to include a concerted stoppage
of work by employees.
1? Cf. Local 8, Electrical Workers, 144 NLRB 1089, 1092.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawn on March 14, that Respondent called D & A and offered to supply
millwrights upon request, something it had failed to do during the preceding 5
weeks of picketing.13 Thus, even assuming that the walkout was spontaneous and
unauthorized, in its inception, Respondent's subsequent conduct would sustain a
finding that it supported, adopted, and ratified the work stoppage and picketing,
especially when viewed in the light of Respondent's conduct on prior jobs where
Dobson used riggers to do work claimed by millwrights.14
In the light of the foregoing, I find that the absence of any direct evidence to
the effect that no official of Respondent specifically instructed the millwrights to
engage in a work stoppage or picketing is not determinative of Respondent's
responsibility. The Board may give consideration to circumstantial evidence as well
as to that which is direct.15 All that is required is a realistic analysis of the con-
duct of the alleged offending party. Thus, a trier of the fact is not foreclosed from
finding a violation because of the absence of direct evidence. See Seafarers Inter-
national Union (Hammermill Paper Co.), 100 NLRB 1176, 1185. To contend here
that the millwrights were acting independently in the exercise of their own free
will rather than concertedly in furtherance of the stated union policy, as clearly
and repeatedly demonstrated by Respondent, is to close one's eyes to the realities
of life.ls
I, accordingly, find that on the entire record there is cogent evidence that, despite
Respondent's scrupulous avoidance of any outward appearance of instigating, par-
ticipating in, or ratifying the walkout and picketing, it actually supported and/or
assisted its members in their work stoppage and picketing, which was directed not
at Dobson or its employees but at employers and employees not parties to the dis-
pute for the purpose of enmeshing these neutrals in Respondent's dispute with Dob-
son17I, therefore, find that Respondent violated Section 8(b)(4)(i) and (ii)(B) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations as described in section I, above, 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 basis of the foregoing findings of fact and upon the entire record in
this case, I make the following:
- CONCLUSIONS OF LAW
1. Dobson , D & A, Cunningham,-Limp Co., and other employers named in sec-
tion I, above, are engaged in commerce within the meaning of Section 2(6) and (7)
or 8(b )(4) of the Act.
2. Millwrights Local Union No. 1102, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, is a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
3. By engaging in a concerted work stoppage and by picketing the premises of
General Motors Corporation with an object of forcing or requiring Cunningham-
13 The record also discloses that one striking millwright ( Hargis Thomas ) testified that
he was never asked by anyone from Respondent to return to work.
14 Although no contention was made that the picketing was permissive primary picketing
at a common situs, it is pertinent to note that the picketing departed substantially from
the standard prescribed for common situs picketing in Moore Dry Dock Co. ( Sailors' Union of
the Pacific ), 92 NLRB 547 , 549, in that the picket signs failed to disclose that the dispute
was with Dobson, and the picketing was not limited to places reasonably close to the situs
of the dispute.
15 N.L R.B. v. Link -Belt Co , 311 U.S. 584, 602.
1e Cf. Cuyahoga, etc., Carpenters District Counsel [Berti Co.], 143 NLRB 872, enfd. 338
F.2d 958 ( C.A. 6) (respondent union unsuccessfully contended that it neither prompted
nor endorsed a wildcat strike, and that its business agent advised the employees that they
could not strike in support of the Joint Board award in a jurisdictional dispute ) ; Local
349, Electrical Workers [Dade Sound and Controls ], 149 NLRB 430, enfd. 357 F 2d 579
(C.A D C.) ; United States v. International Union of Mine Workers, 77 F. Supp 563, affd.
177 F.2d 29 (C.A D.C.), cert. denied 338 U.S . 871 (the court held that as long as a union is
functioning as a union it must be held responsible for the mass action of its members).
17 Millwrights, Local Union No. 1102 ( Dobson Heavy Haul, Inc .), 155 NLRB 1305.
MILLWRIGHTS LOCAL 1102 229
Limp Co., to cease doing business with Dobson, Respondent has engaged in unfair
labor practices within the meaning of Section 8 (b)(4)(i) and (ii) (B) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, it is recommended that Respondent, Millwrights Local
Union No. 1102, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging individuals employed by Darin &
Armstrong, Inc., Cunningham-Limp Co., General Motors Corporation, Manufac-
turers Electric Company, Maintenance Engineers Company, Franklin Electric Com-
pany, Ben Agree Co., Fisher and Wright Plumbing Company, John Miller Electric
Company, Newkirk Electric Company, or any other person engaged in commerce
or in an industry affecting commerce, other than Dobson Heavy Haul, Inc., to engage
in, a strike or refusal in the course of their employment to use, manufacture, proc-
ess, transport, or otherwise handle or work on materials, or to perform any serv-
ices; and from threatening, coercing, or restraining the aforesaid employers or
persons other than Dobson, where an object in either case is to force or require
Cunningham-Limp Co., to cease doing business with Dobson Heavy Haul, Inc.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Post at its business offices and meeting halls in Flint, Michigan, copies of
the attached notice marked "Appendix." 18 Copies of said notice, to be furnished by
the Regional Director for Region 7, after being signed by a duly authorized repre-
sentative of the Respondent, shall be posted by Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive days thereafter, in such
conspicuous places, where notices to members are customarily posted. Reasonable
steps shall be taken by the Union to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Sign and mail copies of said notice to the Regional Director for Region 7 for
posting by Darin & Armstrong Inc., General Motors Corporation, Cunningham-
Limp Co., Manufacturers Electric Company, Maintenance Engineers Company,
Franklin Electric Company, Ben Agree Co., Fisher and Wright Plumbing Com-
pany, John Miller Electric Company, and Newkirk Electric Company, these coin-
panies willing, at all locations where notices to their respective employees are cus-
tomarily posted.
(c) Notify the Regional Director for Region 7, in writing, within 20 days from
the date of receipt of this Decision, what steps Respondent has taken to comply
herewith.19
18In the event that 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 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."
"In the event that this Recommended Order is adopted by the Board, 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 MEMBERS AND ALL EMPLOYEES
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 Rela-
tion Act, as amended, we hereby notify you that:
WE WILL NOT engage in , or induce or encourage the individuals employed
by Darin & Armstrong Inc., General Motors Corporation, Cunningham-Limp
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co., Manufacturers Electric Company , Maintenance Engineers Company,
Franklin Electric Company, Ben Agree Co., Fisher and Wright Plumbing Com-
pany, John Miller Electric Company, and Newkirk Electric Company, or any
other employer other than Dobson Heavy Haul, Inc., to engage in a strike or
refusal in the course of their employment , to use, manufacture , process, trans-
port, or otherwise handle or work on any goods , articles, materials , or com-
modities , or to perform any services ; or threaten, coerce, or restrain the afore-
said employers or persons other than Dobson Heavy Haul, Inc., where an object
in either case is to force or require Cunningham -Limp Co ., to cease doing
business with Dobson Heavy Haul, Inc.
MILLWRIGHTS LOCAL UNION No. 1102, UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA , 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 other material.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office , 500 Book
Building, 1249 Washington Boulevard , Detroit, Michigan 48226 , Telephone
226-3244.
Young & Stout, Inc. and Amalgamated Meat Cutters and Butcher
Workmen of North America , Food Store Employees Union,
Local 347, AFL-CIO . Case 6-CA-3436. December 16,1966
DECISION AND ORDER
On August 10, 1966, Trial Examiner George Christensen issued
his Decision 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 Trial
Examiner's Decision. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint, and recommended that such allegations be
dismissed. Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a brief in support thereof.
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 [Members Fanning, Brown, and Jenkins].
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 exceptions and brief, and the entire record
162 NLRB No. 11.