Ohio Valley Carpenters District Council, Etc.

National Labor Relations Board - Board Decisions

Aug 21, 1963

144 N.L.R.B. 91 (N.L.R.B. 1963)

OHIO VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 91
ence prior to the Board-conducted election in 1953. Employees in
these classifications did not vote in the election and have never been
represented by any union. No effort was made by the Union to repre-
sent these employees until approximately 9 years after the Board
certified the office clerical unit. Neither the contract executed pursuant
to the certification nor any subsequently executed contracts included
specialists, analysts, or business training course students. Clearly,
the specialists, analysts, or business training course students are not
an accretion to the existing unit. We find, in view of the above and
on the entire record, that a motion for clarification is not the proper
method for adding the excluded classifications to the existing unit.
Even if we were to decide that the specialists, analysts, and business
training course students could be part of the office clerical unit, they
would be entitled to vote whether they desire to be represented as
part of that unit. Since the proper procedure for accomplishing
this purpose is a petition pursuant to Section 9(c) of the Act seeking
an election, rather than a motion or petition for clarification, we
shall grant the Employer's motion to dismiss the instant proceeding.2
[The Board dismissed the petition for clarification of unit.]
2 Westinghouse Electric Corporation , 142 NLRB 317; Remington Rand Division of
Sperry Rand Corporation, 132 NLRB 1093, 1095; Brockton -Taunton Gas Company, 132
NLRB 940, 942; General Electric Company, 119 NLRB 1233, 1236
Ohio Valley Carpenters District Council , United Brotherhood
of Carpenters and Joiners of America , AFL-CIO, and Albert
Scheer and Robert Sauer , its Agents and Cardinal Industries,
Inc. Case No. 9-CC-315. August 01, 1963
DECISION AND ORDER
On March 19, 1963, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices as alleged in the complaint, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth in
the attached Intermediate Report. Thereafter, the General Counsel
and the Respondent Council filed exceptions to the Intermediate
Report and supporting briefs.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
144 NLRB No. 16.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of the Trial Examiner to the extent they are consistent with this
Decision.
The complaint alleges that Jewel Garden Construction Company,
herein called Jewel, is engaged as the general contractor at the Jewel
project (referred to in the Intermediate Report as the Garden Hills
apartment project), in Cincinnati, Ohio, and that Hankins was en-
gaged as a carpenter subcontractor at this project. The complaint fur-
ther alleges that, at all material times, Hankins, pursuant to a con-
tract with Cardinal, has been installing at the Jewel project buildings
certain material prefabricated by Cardinal. The Trial Examiner's
findings concerning the contractual relationship between Hankins
and Cardinal are essentially in accord with the complaint' s allega-
tions, except that he finds that Cardinal was the general contractor
on the aforesaid project. In view of the basis for our decision herein,
the identity of the general contractor is immaterial. It is clear from
the record that, whether Hankins' contract was with Cardinal or with
Jewel, Hankins was limited by the terms of the contract to supplying
carpenter labor and was powerless to control the assignment of the
disputed work, described below, which was claimed by the Respondent
Council.
The basic dispute centers around the use of prefabricated trusses in
the construction of the apartment building at Garden Hills. Respond-
ent claims that article III of its contract with Hankins required the
fabrication of these trusses at the construction site by Hankins' em-
ployees,' and, therefore, that Hankins was in violation of the con-
tract when he installed trusses fabricated by Cardinal away from
the site. Hankins contended that the National Labor Relations Board
had found article III to be illegal in an earlier case involving the same
parties,' and by virtue of article II' of the labor agreement, he was not
in violation of article III.
In agreement with the Trial Examiner, we find that Respondent
violated Section 8(b) (4) (ii) (B) of the Act, but for the following
reasons. While the record is susceptible of the construction, as found
by the Trial Examiner, that essentially the same facts are presented
in the instant case as were presented in the former case, we find a
distinction in the actual demands of Respondent in the two cases.
The Trial Examiner found that Respondent Council interpreted and
construed article III as requiring that prefabricated building ma-
terials produced away from the building site may be used, at the site
1 Article III provides, in pertinent part, that, "All framing and concrete forms are to
be cut, fitted and erected by outside carpenters of this jurisdiction."
2 Cardinal Industries , Inc, 136 NLRB 977.
3 Article II provides , in pertinent part, that,
Any provisions herein contained that are contrary to or held to be in violation of
the Law on the part of either party hereto by any Law now in force or hereinafter
enacted and effective, shall have no force and effect for the duration of such voidance,
it being intended, however, that the remaining provisions hereof shall be unaffected
OHIO VALLEY CARPENTERS DISTRICT COTJNCIL, ETC. 93
only if such materials are produced within the jurisdictional area
of Respondent Council by outside carpenters who are members of,
or represented by, Council or its affiliated or constituent labor organiza-
tions, thus permitting the use of offsite-fabriacted materials under
conditions specified by the Union. Upon a review of the record, how-
ever, it is not clear to us that Respondent Council sought to do more
in this case than have Hankins use his own employees to perform the
truss fabrication at the construction site, thus preserving the work of
the unit. But despite that posture of the case, Hankins was powerless
to effect the result sought.
In our view, if Jewel, as general contractor, allocated the truss pre-
fabrication work to Cardinal, Hankins was effectively deprived of
control of the assignment of this work, and article III was no longer
applicable to Hankins on this project. Likewise, if Hankins' contract
was with Cardinal, as general contractor, the control of truss fabrica-
tion rested with Cardinal, and again Hankins was powerless to effect
the assignment sought by Respondent, as Hankins' contract merely re-
quired that he furnish labor. Indeed, as Hankins could not grant
Respondent's request that the trusses be fabricated by Hankins' em-
ployees at the building site, it is difficult to conceive what effect was
intended by Respondent's conduct other than to force Jewel to sever
relations with Cardinal and reassign this work to Hankins and to
compel Hankins to cease doing business with Cardinal. Thus, it is
clear that Cardinal, rather than Hankins, was the primary target of
Respondent's conduct.4
The Trial Examiner found that Respondent induced and encour-
aged its member employees of Hankins to refuse, in the course of their
employment, to handle or work on Cardinal's prefabricated building
materials, by withdrawal of its contract from Hankins, because
Hankins was installing trusses manufactured by Cardinal away from
the construction site, and by notification to Hankins' employees that
they would be subject to disciplinary action for working for a non-
union employer if they continued their employment with Hankins.
In agreement with the Trial Examiner, we find this conduct to be in
violation of Section 8 (b) (4) (i) and, (ii) (B) of the Act.
The General Counsel excepts to the Trial Examiner's failure to find
article III, as interpreted by Respondent Council, to be violative of
Section 8(b) (4) (i) and (ii) (A) of the Act. VTe5 find it unnecessary
to pass upon this question, as our Order to remedy the 8 (b) (4) (i) and
(ii) (B) violations found herein will adequately remedy Respondent's
unlawful conduct.
4Local 5, United Association of Journeymen and Apprentices of the Planibing and Pipe-
fitting Industry, etc (Arthur Venneri Company) (Member Fanning dissenting on other
grounds ), 137 NLRB 828 , enfd 321 F 2d 366 (CAD C.).
5 Member Rodgers, in agreement with the General Counsel, would find specifically that
aiticle III, as interpreted by Respondent Council, was violative of Seel ion 8(b) (4) (1)
and (ii) (A) of the Act
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
MEMBER BROWN, dissenting :
As I am convinced that Respondent Council was engaged in a
primary dispute with Hankins to protect the jobs and job oppor-
tunities of its member-employees in the unit it represented, I would
dismiss the complaint in its entirety.
In an earlier case 6 involving essentially the same parties, the Board
stated that an interpretation and application of article III, the iden-
tical contract clause in issue here, would be lawful as a work pro-
tection clause if it did no more "than define and reserve for the ex-
clusive performance 'of employees in a bargaining unit work of a
kind that has traditionally been performed in that unit." My col-
leagues and I are in agreement that the factual circumstances of
this case establish that Respondent Council sought no more than
to have Hankins use his own employees to perform the truss fabri-
cation at the construction site. Nevertheless, my colleagues hold
Respondent Council to be in violation of Section 8(b) (4) (i) and
(ii) (B). By this finding, it appears to me, the majority is now
interdicting the very interpretation and application of article III
which was given Board approval in the earlier case. My colleagues'
conclusion rests primarily on the theory that Hankins was powerless
to control the assignment of the disputed work at this project. In
this case, therefore, it appears that the majority is giving controlling
weight to this factor.
While the factor of control as an evidentiary matter needs to be
considered, together with all other circumstances, in ascertaining a
union's objective in a given case, I do not believe that a violation
of the Act necessarily flows from the absence of such control by the
struck employer. By holding otherwise here, as on prior occasions,7
the majority "ignores the basic nature of the dispute and makes an
incidental factor ... the extent to which an employer could satisfy
the union's demands ... the determinative consideration." The ma-
jority thus disregards the obvious fact that in lawful primary strikes
employers may not be willing or at times even able to satisfy their
employees' lawful demands.
In any event, on the basis of this record, I am unconvinced that
Hankins was powerless to control the assignment of the disputed
work. It was established that Hankins' employees used trusses con-
9 0h4o Valley Carpenters District Council, etc . ( Cardinal Industries, Inc.), 136 NLRB 977.
7 Local 1066 , International Longshoremen's Association , etc. (Wiggin Terminals , Inc.),
137 NLRB 45, 49; International Longshoremen's Association, etc. (Board of Harbor Com-
missioners ), 137 NLRB 1178, 1190.
OHIO VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 95
structed at the jobsite at other projects in the vicinity and that this
was the normal practice. Under such circumstances, it would appear
that Hankins' subcontract calling for carpentry labor contemplated
skilled carpentry work normally performed by craftsmen including
the manufacture of trusses at the jobsite. Moreover, an inference
that Hankins did have control seems warranted by Hankins insist-
ence that he had not assigned the disputed work to his employees
because he erroneously interpreted the Board's earlier decision as
holding article III to be unlawful.
I am unable to perceive, as my colleagues do, any conduct of Re-
spondent which had an objective of causing Hankins or Jewel to
cease doing business with Cardinal. Indeed, it appears that Re-
spondent had no objection to the installation of stairs, cabinets, and
doors prefabricated by Cardinal. Respondent's sole object, in my
opinion, was to secure for Hankins' employees work contemplated
by their contract and which they normally performed. Respond-
ent's conduct thus was designed to protect the job and job oppor-
tunities of the employees in the unit it represented. A strike for
this objective is clearly lawful.'
8Mslk Draver8' Union, Local 753 et al. ( Pure Milk A88ociation), 141 NLRB 1237.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and an amended charge filed by Cardinal Industries, Inc. (Car-
dinal), on or about October 1 and 16, 1962, respectively, against Ohio Valley Car-
penters District Council, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Council), and Albert Scheer and Robert Sauer, its agents, the General
Counsel, on January 3, 1963, issued the complaint herein alleging that the three
Respondents above named had engaged in unfair labor practices affecting commerce
within the meaning of Section 8(b) (4) (i) and (ii) (A) and (B) as defined in Section
2(6) of the National Labor Relations Act, as amended (the Act). Respondents, by
their answer, denied the commission of any unfair labor practice.
Pursuant to due notice, a hearing was held before Trial Examiner David London
in Cincinnati, Ohio, on February 11, 1963. All parties were represented by counsel
and participated in the hearing. Since the close of that hearing, briefs have been
received from the General Counsel and Respondents and have been duly considered.
Prior to the filing of the charge herein, Respondent Council and Cardinal were
parties to litigation before the Board involving, inter alia, issues and facts almost
identical to those posed by the pleadings in the instant proceeding, and which litiga-
tion culminated in a decision of the Board reported in 136 NLRB 977. At the hearing
before me, the parties stipulated that certain specified findings of fact entered by Trial
Examiner Leff in that proceeding be accepted by me as findings of fact herein. It
was further stipulated herein that the entire transcript of testimony in the prior
Board proceeding as well as the reported testimony of all witnesses in its ancillary
proceeding brought pursuant to Section 10(l) of the Act in the U.S. District Court
for the Southern District of Ohio, Western Division, as Civil Case No. 5173, be
incorporated as part of the record herein, with the same effect as if the witnesses in
both the prior Board and the court proceeding had testified before me. I have care-
fully read and analyzed the testimony in both these transcripts and find myself in
complete agreement and accord with the relevant findings of fact and conclusions of
law pertaining to that testimony as entered by Trial Examiner Leff in the Board
proceeding, which findings were adopted and affirmed by the Board.
Upon the entire record in the case,' including the testimony in the two transcripts
'Respondent's motion to substitute "Article III" for "Article II" on page 57, line 25,
of the transcript of testimony in the instant proceeding is granted.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of testimony aforementioned, and my observation of the witnesses that appeared
before me, I make the following:
FINDINGS OF FACT
I. THE COMPANIES INVOLVED AND THEIR BUSINESSES
Cardinal is an Ohio corporation engaged in the manufacture and distribution of
prefabricated and preassembled buildings and building parts at its principal place
of business in Columbus, Ohio. Its annual gross sales are in excess of $4 million,
and it annually ships products and materials, in interstate commerce, of a value in
excess of $50,000, directly from its location in Columbus, Ohio, to points outside the
State of Ohio.
Willard E. Hankins and Joseph L. Hankins, copartners, doing business as Hankins
& Hankins Construction Company (Hankins), are engaged as carpenter subcon-
tractors in the building and construction industry, with their principal place of
business in Cincinnati, Ohio. During the 12 months preceding the filing of the com-
plaint herein, which is a representative period, Hankins has furnished services valued
in excess of $50,000 to nonretail enterprises in the State of Ohio, each of which
annually receives goods and materials valued in excess of $50,000 directly from
points outside the State of Ohio.
The Hamilton Company (Hamilton), is engaged at Cincinnati, Ohio, as general
contractor in the building and construction industry.
At all times material to the issues herein, Cardinal, Hankins, and Hamilton each
is, and has been, an employer as defined in Section 2(2) of the Act, engaged in com-
merce and/or in operations affecting commerce as defined in Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION AND ITS AGENTS HEREIN INVOLVED
Council is a labor organization within the meaning of Section 2(5) of the Act.
The individual Respondents , Albert Scheer and Robert Sauer, are respectively the
secretary and business agent of the Council, and each is an agent thereof within the
meaning of Section 2(13) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Council is composed of some 17 local affiliates of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO. Its territorial jurisdiction embraces
Hamilton, Clermont, and Brown Counties in Ohio, and Kenton, Campbell, Boone,
Bracken, Grant, and Pendleton Counties in Kentucky? It acts for its member
locals in their business dealings with employers in the building construction industry
and periodically negotiates agreements with the Building Division, Cincinnati
Chapter, Associated General Contractors of America, Inc. (AGC). As recited in
such agreements, the AGC acts "as negotiating agent only, for each employer who
hereafter signs this agreement or a true copy thereof."
The AGC-negotiated agreements define the work jurisdiction and fix the hours,
wages, and terms and conditions of employment of Council-represented carpenters
who perform work on construction within the area of the Council's geographical
jurisdiction. All employers of such carpenters who desire to enter into contractual
relations with the Council are expected to execute the Council's standard form of
agreement as negotiated with the AGC. The standard area agreement establishes
by its terms a separate appropriate bargaining unit for the carpenter employees of
each employer who becomes a signatory. This is apparent from the recognition
article which provides: "The Employer recognizes the Union as the sole and exclusive
bargaining representative of all employees in the employ of the Employer . . . ...
Article III of the standard agreement defines the work tasks or work jurisdiction
that is assigned and reserved to carpenters under the contract. That article, in
pertinent part, reads, as follows:
All framing and concrete forms are to be cut, fitted and erected by outside
carpenters of this jurisdiction.3
2 The only Carpenters local in that area not affiliated with the Council Is Local 2973
which represents employees of the Norwood Sash & Door Company. That local is serviced
directly by the International.
3 The agreement defines carpenters as "all employees of the Employer coming within
the jurisdiction of the United Brotherhood of Carpenters and Joiners of America " There
is no requirement that such employees be members of the Union when employed There
OHIO VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 97
0
At an undisclosed date in 1961, the aforementioned contract, effective from June 1,
1961, to June 1, 1964, was executed by Hankins and the Council.
The testimony establishes conclusively, indeed it is undenied, that at all times
material herein, and since October 1960 under earlier similar contracts, Council has
consistently interpreted and construed the contract provision set forth above as
requiring that prefabricated building materials produced away from the construction
site at which such materials are to be erected or installed may be used at the con-
struction site only if such prefabricated material has been produced within the
jurisdictional area of Council by outside carpenters who are members of, or repre-
sented by, Council or its affiliated or constituent labor organizations.
The complaint herein alleges, and the record establishes, that in accordance
with the Council's aforesaid interpretation and construction of the provisions of its
contract with Hankins, Respondents, commencing on or about October 1, 1962,
and thereafter, have demanded that Hankins cease erecting or working on prefabricated
materials manufactured by Cardinal. It is further alleged that on or about October 5,
1962, and thereafter, Respondents engaged in a strike against Hankins and induced
and encouraged individuals employed by Hankins to cease handling or erecting
prefabricated products furnished by Cardinal, or otherwise working for Hankins
at various projects where Hankins was engaged in carpentry work.
It is the contention of the General Counsel that all the foregoing conduct was
violative of Section 8(b) (4) (i) and (ii) (A) and (B) of the Act because it was en-
gaged in with an object of forcing and requiring Hankins and other employees to
cease using , handling, or otherwise dealing in the products of Cardinal or any other
producer of prefabricated buildings or building materials , produced away from the
construction site by employees who are not members of, or represented by, Council
or its affiliated or constituent labor organization , and of forcing and requiring the
general contractors to cease doing business with Hankins and Cardinal . It is the
position of Respondents that ( 1) no strike was engaged in by them and (2) they
sought merely to induce and require Hankins to honor the contractual provision of
article III of his contract with the Council which, it contends , assigns and reserves
the work performed by Cardinal to the employees in the unit covered by that
contract.
The Board , in the earlier proceeding against the Council , rejected Respondents'
contention that the contract provision aforementioned , as interpreted by the Council,
and identical with the one under consideration herein , was merely a work -jurisdictional
clause designed "to set forth the work to be performed by the employees in the
Union 's bargaining unit pursuant to the terms and conditions of the contract" and to
"preserve such work for these particular employees ." Instead , the Board concluded,
as I do here, that this contract provision , as construed , interpreted , and enforced by
the Council, "requires that prefabricated materials produced off the project site by
employees outside the bargaining unit may be used in construction on the project
site only if such prefabricated materials are made or produced within the Council's
jurisdictional area by outside carpenters who are members of or are represented by the
Council and /or are employed under Council 's contract conditions is violative of
Section 8(e)" of the Act.
On July 7, 1962, Hankins entered into a contract with Cardinal to "perform
the labor required to put up the building" which Cardinal was erecting on the
Garden Hills apartment project in Cincinnati. Included among the materials pro-
vided for that job by Cardinal were "prefabricated trusses, prefabricated wall sec-
tions, precut board joists." At Findlatter Gardens, where Hankins had a contract
with Hamilton , the general contractor , to supply the necessary carpentry , the stairs
to be installed were also prefabricated by Cardinal.
Cardinal's carpenters at Columbus, Ohio, who manufactured all the prefabricated
materials under discussion, were represented by Local 2783 of the United Brotherhood
of Carpenters, AFL, not affiliated with the Respondent Council. Cardinal had a con-
tract with that local calling for a lower wage scale than that provided by Hankins'
contract with the Council.
Hankins began work at Garden Hills on September 17, 1962 , installing the Cardinal
prefabricated materials aforementioned . On September 24, Sauer and Scheer,
respectively the business agent and secretary of Respondent Council, visited the
is, however, a conventional union-shop provision and a further provision giving area em-
ployees preference in employment "without regard to union membership" According to
the testimony, the term "carpenters" wherever used in the agreement is intended to refer
to "outside carpenters" who do construction work, as distinguished from "inside car-
penters," or mill'hands, who work in shops.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
Garden Hills project and instructed Whitesell , the union steward , to have Hankins
call them at the union hall . Hankins did so and was told by both men, who were on
the telephone, that he "was in violation of section III of the contract by having
these prefabricated materials which were shipped in from Cardinal ," and that
there would be a "Joint Conference Committee " meeting on the dispute . Such a meet-
ing was held on October 1 at which Hankins contended that he was at liberty to pro-
ceed with the work because of the Board 's ruling in the earlier Board proceeding.
The parties maintained their respective positions concluding that "it looked as if it
was a legal matter and should be settled through the courts ." The Council's
representatives , however, announced "that they would work the remainder of the
week."
On Friday morning, October 5, Sauer and Scheer came to the Findlatter Garden
project where Hamilton had engaged Hankins to do "a complete carpentry job,
doing all their trimming work, framing , cabinets , and everything ." Sauer told
Hankins that "he had informed the members" then working on the job that Hankins'
contract with the Council would be canceled as of 4 p.m. that day, "that they could
work after that if they wanted to, but they would be working for a non-union
contractor." Scheer testified he told the employees that the Council "was pulling
the contract from Hankins" and that if they continued to work "they would no
longer be employees of a union contractor after 4 p.m. of that day."
On the same day, October 5, Sauer came to the Findlatter Gardens project where
Hankins was installing Cardinal 's prefabricated materials and told Hankins that
"he had informed the members that was (sic) working on the job as of 4 o 'clock that
afternoon that [his] contract with the Union would be cancelled and that they
could work after that if they wanted to, but they would be working for a non-union
contractor."
The facts found above are not in dispute . Indeed , the Respondent Council and
the two individual Respondents presented no testimony on their behalf . Their brief
herein is devoted exclusively to the same contention urged in the prior proceeding,
and there rejected by the Board, that Respondents here "did no more than rescind
its contract with Hankins because he deliberately violated a lawful provision of the
contract which Council sought to have lawfully applied." That defense is rejected as
it was in the cases arising under similar facts and circumstances , not only in the
prior proceedings between the same parties, 136 NLRB 977, but also in Butchers Local
Union No. 563 etc. (Monarch Building Maintenance Company), 134 NLRB 136,
and MacDonald-Scott & Associates, 131 NLRB 787. I find that all three Respondents
violated Section 8(b) (4) (ii) (B) of the Act by threatening , coercing , and restraining
Hankins with an object of forcing or requiring Hankins to cease handling or working
on the products of Cardinal.
Respondent also violated Section 8(b) (4) (i) (B) of the Act by inducing and
encouraging its member employees engaged on projects where Hankins was installing
Cardinal's products to refuse, in the course of their employment, to handle or work
on Cardinal 's prefabricated building materials. That inducement and encouragement
was brought about by the Council's instructions to its members on October 5, 1962,
that if they continued to work after 4 p.m. of that day they would be working for a
nonunion employer, conduct which would make them subject to citation before
"a Trial Board" with resultant expulsion from the Union or the imposition of a
fine.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in con-
nection with the operations of the Companies set forth 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 thereof.
V. THE REMEDY
It having been found that Respondents have engaged in certain unfair labor
practices, it will be recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
The record herein, and in the prior proceeding, discloses a pattern of conduct
on the part of Respondents which indicates the likelihood that the conduct com-
plained of herein may be repeated not only with respect to Hankins and his em-
ployees, but also with respect to other employers in contractual relationship with
the Council, and not only with respect to Cardinal and its prefabricated products,
`nut also with respect to the manufacturers of prefabricated materials, other than
OHIO VALLEY CARPENTERS DISTRICT COUNCIL, ETC. 99
Cardinal. I therefore deem it appropriate, in order to effectuate the purposes of the
Act, that a broad cease-and-desist order be issued including employers other than
Hankins and manufacturers of prefabricated products other than Cardinal. N.L.R.B.
V. Highway Truckdrivers and Helpers, Local No. 107, Teamsters, etc. (Riss & Co.),
300 F. 2d 317 (C.A. 3); Washington-Oregon Shingle Weavers' District Council
(Sound Shingle Co.), 101 NLRB 1159, 1172.
On the basis of the foregoing findings of fact, and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. Hankins is engaged in an industry affecting commerce within the meaning
of Section 8(b) (4) (li) (B) of the Act.
2. The Council is a labor organization within the meaning of Section 2(5) of
the Act, and Respondents Scheer and Sauer are its agents within the meaning of
Section 2 (13) of the Act.
3. By inducing and encouraging individuals employed by Hankins to refuse, in
the course of their employment, to install the prefabricated fittings manufactured
by Cardinal, Respondents violated Section 8(b) (4) (i) (B) of the Act.
4. By threatening, restraining, and coercing Hankins with an object of forcing
and requiring Hankins to cease using and handling products of Cardinal, the
Respondents have engaged in and are engaging in an unfair labor practice within the
meaning of Section 8(b) (4) (ii) (B) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Ohio Valley Carpenters
District Council, Albert Scheer, and Robert Sauer, and all other officers, agents,
representatives, successors, and assigns of the Council, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed by Hankins, or by any
other person engaged in commerce or in an industry affecting commerce, to refuse
to install prefabricated materials manufactured by Cardinal or by any other person.
(b) Threatening, restraining, or coercing Hankins, or any other person engaged
in commerce or in an industry affecting commerce, where an object thereof is
to force or require Hankins or such other persons not to purchase or install pre-
fabricated materials manufactured by Cardinal or by any other person.
2. Take the following affirmative action found necessary to effectuate the policies
of the Act:
(a) Post in conspicuous places in their respective business offices, meeting halls,
and other places where they customarily post notices to their members, signed copies
of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished
by the Regional Director for the Ninth Region, shall, after being duly signed by
the respective authorized representative of the Council and the individual Respond-
ents herein, be posted by said Respondents, as aforesaid, immediately upon receipt
thereof and maintained by them for a period of 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondents to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Furnish the Regional Director for the Ninth Region signed copies of said
Appendix for posting by Hankins, if he should be willing, on his respective
jobsites where notices to employees are customarily posted. Copies of said notice,
to be furnished by said Regional Director, shall, after being signed by the Respond-
ents, as indicated, be forthwith returned for disposition by him.
(c) Transmit to the various constituent labor organizations of the Council,
copies of said notice, with instructions to take such action with respect thereto
as is customary with respect to other communications by which the Council advises
its constituent members and membership of the action or position of the Council
as to matters with which its membership would be concerned.
In the event that this Recommended Order be 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 be 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."
727-083-64-vol. 144-8
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 .6
5In 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
from the date of this Order, what steps the Respondents have taken to comply herewith "
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 SAVER)
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 Council 2 and Local 12, International
Union of United Brewery, Flour , Cereal , Soft Drink and
Distillery Workers of America 3 and Falstaff Brewing Cor-
poration4 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,
Hereinafter referred to as Painters
s 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.