Plumbers and Pipe Fitters Local Union 142

National Labor Relations Board - Board DecisionsFeb 15, 1968

169 N.L.R.B. 840 (N.L.R.B. 1968)

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers and Pipe Fitters Local Union 142, affiliated with United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Indus- try of the United States and Canada , AFL-CIO and Cross Construction Co., Inc. Case 23-CC-255 February 15, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 12, 1967, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the breadth of the order recom- mended by the Trial Examiner and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except as indicated herein. 1 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, except that paragraph I and the correspondeing paragraph in the notice to be posted is hereby amended by delet- ing the phrase "or any other person" after the phrase "to cease doing business with John Bright Enterprises, Inc." I The Respondent excepts to the breadth of the order. At the hearing, the General Counsel introduced into the record a copy of a recent deci- sion in an unrelated case, finding the Respondent in violation of Sec 8(b)(4)(i) and (ii)(B). Respondent had voluntarily complied with the Recommended Order in that case. On the basis of this single violation, the Trial Examiner issued a broad cease-and-desist order. In the circum- stances of this case, we do not believe such a broad order is warranted. However, the language prohibiting the picketing of any other secondary employers where an object is to force or require them to cease doing busi- ness with the primary employer involved herein is normal Board practice, and is justified in the present case. International Brotherhood of Electri- cal Workers v. N L R.B , 341 U.S. 694 (1951); Journeymen Plasterers' Protective and Benevolent Society (Royal Rin Builders, Inc.), 158 NLRB 1608, 1619. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN FUNKE , Trial Examiner : Based upon a charge filed October 31, 1967,1 by Cross Construction Co., Inc., herein called Cross, the Regional Director for Region 23 of the Board issued a complaint on November 9, 1967, against Plumbers and Pipe Fitters Local Union 142, af- filiated with United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called Respondent , alleging that Respondent had induced em- ployees to strike and threatened employers neutral to a dispute between Respondent and John Bright Enter- prises , Inc., herein called Bright, thereby engaging in un- fair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act. The notice of hearing set this matter for trial on November 27, 1967. The 10-day period for filing an answer to the complaint expired on Monday , November 20,1967.2 At the duly appointed time, date , and place, I was present to preside at the trial of this cause . Upon the record being opened , counsel for the General Counsel and the Charging Party made their appearances. No ap- pearance was made by Respondent , by either representa- tive or attorney . I instructed counsel for the General Counsel to contact Arthur Gochman , attorney for Respondent, by telephone immediately prior to the record being opened but after 10 a .m. After the record was opened , counsel for the General Counsel reported on the record the substance of his telephone conversation with Mr. Gochman , which was to the effect that Mr. Gochman was engaged with other matters and was una- ble to and would make no appearance. There was neither a motion for continuance nor an answer on file. The General Counsel moved that the al- legations of the complaint be deemed admitted and for summary judgment on the basis that no answer had been filed in the cause. I granted the General Counsel 's motion in all respects . The General Counsel then introduced his exhibits: Exh. 2(a)-being a copy of the Trial Examiner Boyd Leedom's decision in Plumbers and Pipe Fit-, ters Local Union 142, affiliated with United As- sociation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO, (Charles C. Madden Company), Case 23-CC-212, dated March 30, 1967, in which he found that this same Respondent, I All dates are 1967 unless otherwise noted 2 G C Exh. I (b) reflects that service of the complaint upon Respond- ent, with a copy being served upon Attorney Arthur Gochman, was made November 9, 1967 November 19, 1967, was a Sunday; ac- cordingly, under Section 102.20 of the Board's Rules and Regulations, Se- ries 8, as amended, Respondent had until the following day, Monday, November 20, 1967, in which to file an answer. 169 NLRB No. 113 PLUMBERS AND PIPE FITTERS LOCAL UNION 142 represented by Attorney Arthur Gochman, had vio- lated Section 8(b)(4)(i)(ii)(B) of the Act by seeking to cause neutral employers to cease doing business with M & S Plumbing Co. with whom Respondent had a dispute; Exh. 2(b) -Notice to Members in the above case; and Exh. 2(c) - Certificate of Posting of the Notice in the above case. The General Counsel announced that Respondent had complied with the Trial Examiner's Decision in Case 23-CC-212, as Exh. 2(c) would indicate. The purpose of the General Counsel's introduction of the above three ex- hibits was in relation to the remedy sought herein. The General Counsel contends that a broad order should issue herein because of Respondent's proclivity to violate Section 8(b)(4)(i) and (ii)(B) of the Act. On the basis of the above, I make the following: FINDINGS OF FACT 1. Jurisdiction I find that the allegations in paragraphs (1) through (5) of the complaint are deemed to be true in the absence of a timely filed answer and I so find. The allegations in these paragraphs establish that Respondent is a labor or- ganization within the meaning of Section 2(5) of the Act, that Cross is engaged in the construction industry as a general contractor, that Bright is engaged in the construc- tion industry as a mechanical contractor as well as a general contractor, and that during the past 12 months Cross and Bright each purchased materials valued in ex- cess of $50,000 from persons outside the State of Texas, who in turn shipped said materials from points outside the State of Texas to Cross and Bright to points inside the State of Texas; and that Cross and Bright are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. The Unfair Labor Practices I find that in the absence of a timely filed answer the al- legations of paragraphs (6) through (15) of the complaint are deemed to be admitted and I so find. From such ad- mitted allegations, I find that Cross is a general contrac- tor for American Telephone and Telegraph Company, under which Cross is constructing a bombproof radio relay communication center on a mountain top near Bul- verde, Texas, approximately 27 miles north of San An- tonio, Texas. Cross assigned the plumbing and mechani- cal work on the AT&T job to Bright. At no time material to this controversy has Respondent had any labor dispute with Cross. On or about August 1, 1967, and again on or about Au- gust 7, 1967, and continuing to date, Respondent did threaten, coerce, and restrain Cross by stating that it would picket the AT&T jobsite so long as Bright was the mechanical contractor on the job or so long as Cross or AT&T did business with Bright on the AT&T job. On or about October 31, 1967, Respondent did order, instruct, request, and appeal to the employees of Cross and other persons engaged in commerce, or in an industry affecting commerce, to cease work at the AT&T job. Respondent, on or about October 31, 1967, and con- tinuing until the afternoon of November 3, 1967, picketed at the AT&T job. 841 As a result of Respondent's acts and conduct set forth above, the employees of Cross and other persons engaged in commerce or in an industry affecting commerce ceased working at the AT&T jobsite. As a consequence, Cross and other employers were unable to proceed with con- struction of the AT&T job. By the orders, instructions, requests, appeals, and picketing above, Respondent has engaged in, and induced and encouraged individuals employed by Cross, and other persons engaged in commerce or in an industry af- fecting commerce, to engage in, strikes or refusals in the course of their employment to use, process, transport, or otherwise handle or work on goods, articles, or commodi- ties, or to perform services. By the threats, coercion, restraint, and picketing above described, Respondent has threatened, coerced, and restrained Cross and other persons engaged in commerce or in an industry affecting commerce. An object of the acts and conduct of Respondent set forth above was and is to force or require Cross and other persons engaged in commerce, or in an industry affecting commerce, to cease using, selling, handling, transporting, or otherwise dealing in the products of and to cease doing business with Bright. CONCLUSIONS OF LAW 1. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 2. Cross and Bright are employers within the meaning of Section 2(6) and (7) of the Act. 3. Respondent unlawfully induced employees neutral to the dispute between it and Bright to engage in a strike and a refusal to work and Respondent thereby violated Section 8(b)(4)(i)(B) of the Act. Respondent also violated Section 8(b)(4)(ii)(B) of the Act by threats, coercion, and restraint upon employers neutral to the dispute between Respondent and Bright. An object of the conduct in both instances was and is to force or require Cross and other persons engaged in commerce or in an industry affecting commerce, to cease using, selling, handling, transporting, or otherwise dealing in the products of and to cease doing business with Bright. By such acts and conduct, Respond- ent did engage in unfair labor practices within the mean- ing of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and '(7) of the Act. THE REMEDY Having found that Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. The General Counsel contends that Respondent has demonstrated a proclivity for violating this section of the Act. He cites the Trial Examiner's decision in Charles C. Madden Company, Case 23-CC-212, supra, a copy of which was introduced into the record in this cause as General Counsel's Exhibit 2(a). The General Counsel seeks a broad order in this case because of Respondent's proclivity to violate the law, and I find that a broad order is necessary to effectuate the policies of the Act. Intl. Brotherhood of Electrical Workers, Local 861 (Albert K. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newlin , Inc.), 143 NLRB 1169 , enfd . 353' F.2d 763 (C.A. 5, 1965). RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this case, it is hereby recommended that Respondent, its officers, agents, and representatives, shall: 1. Cease and desist from inducing and encouraging any individual employed by Cross Construction Co., Inc., or by any other person other than John Bright Enter- prises , Inc., similarly engaged in commerce or in an in- dustry affecting commerce, to engage in a strike or a refusal in the course of his employment to use, manufac- ture, process, transport, or otherwise handle or work on any articles, materials , or commodities, or to perform any services, or threatening, coercing, or restraining Cross Construction Co., Inc., or any other person similarly en- gaged in commerce or in an industry affecting commerce; where in either case an object thereof is to force or require Cross Construction Co., Inc., or any other em- ployer or person engaged in commerce or in an industry affecting commerce to cease doing business with John Bright Enterprises, Inc., or any other person, in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Post in conspicuous places in Respondent's busi- ness offices, meeting halls , and all places where notices to members are customarily posted, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms to be furnished by the Regional Director for Re- gion 23, after being duly signed by an authorized representative of the Respondent shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by other material. Upon request of the Regional Director, the Respondent shall supply him with a sufficient number of signed copies for posting by Cross Construction Co., Inc., if it desires to do so, at the site involved in this proceeding. (b) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.4 8 In 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 4 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 Respond- ent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our mem- bers that: WE WILL NOT induce or encourage individuals em- ployed by Cross Construction Co., Inc., or by any other persons engaged in commerce, or in an indus- try affecting commerce, to engage in a strike or refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or com- modities, or to perform services, or threaten, restrain, or coerce Cross Construction Co., Inc., or any other employer or person engaged in commerce, or in an industry affecting commerce, where an ob- ject in either case is to force or require any employer or person to cease doing business with John Bright Enterprises, Inc., or any other person. PLUMBERS AND PIPE FITTERS LOCAL UNION 142, AFFILIATED WITH UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES OF CANADA, 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 provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone CA 8-0611, Extension 4721.