Salem Building Trades Council, AFL-CIO, Etc.Download PDFNational Labor Relations Board - Board DecisionsJun 25, 1965153 N.L.R.B. 531 (N.L.R.B. 1965) Copy Citation SALEM BUILDING TRADES COUNCIL, AFL-CIO, ETC. 531 Salem Building Trades Council , AFL-CIO; Plumbers & Steam- fitters Local No. 347, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U.S. and Canada , AFL-CIO; and Sheet Metal Workers Inter- national Association Local No. 16, AFL-CIO and Lantz Con- struction Company and Bob & Don Plumbing & Heating Com- pany. Case No. 36-CC-127. June 25, 1965 DECISION AND ORDER On April 15, 1965, Trial Examiner William E. Spencer issued his Decision in the above-entitled proceeding, finding that the Respond- ents Plumbers R Steamfitters Local No. 347, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U.S. and Canada, AFL-CIO, and Sheet Metal Work- ers International Association Local No. 16, AFL-CIO, had engaged in and were engaging in certain unfair labor practices and recommend- ing that they 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 Salem Building Trades Council, AFL-CIO, had not engaged in certain unfair labor practices alleged in the complaint and recommended that these allega- tions be dismissed. Thereafter the Respondent Plumbers and Sheet Metal Workers 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 [Chairman McCulloch and Members Fanning and Brown]. The Board had 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, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and orders that Respondents Plumbers & Steamfitters Local No. 347, United Associa- 153 NLRB No. 60. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U.S. and Canada, AFL-CIO, and Sheet Metal WWTork- ers International Association Local No. 16, AFL-CIO, their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order.' 1 The telephone number for Subregion 36, appearing at the bottom of the Appendix attached to the Trial Examiner's Decision, Is amended to read. Telephone No. 226-3431. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding with all parties represented was heard before Trial Examiner William E. Spencer in Portland, Oregon, on January 7, 1965, upon a complaint of the General Counsel of the National Labor Relations Board, the latter herein called the Board, dated December 10, 1964, and duly filed answer of the Respondents. The complaint, based upon a charge filed September 22 and an amended charge filed October 19, 1964, by Lantz Construction Co. and Bob & Don Plumbing & Heating Co , alleged, and the Respondents' answer denied, that the Respondents violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, herein called the Act, by certain specified conduct Upon the entire record, my observation of witnesses, and after considering the briefs filed with me by the General Counsel and the Respondents, respectively, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Bob Clarambeau and Don Murray at all material times have been copartners doing business under the trade name of Bob & Don Plumbing & Heating Co., herein called Bob & Don, with office and principal place of business in McMinnville, Oregon, where they are engaged in the sale and installation of plumbing and heating equip- ment. During the past year, in the conduct of their business they purchased materials and supplies valued in excess of $50,000 which originated in and were shipped indi- rectly from States other than Oregon. At all times material Lantz Construction Co., herein called Lantz, has been engaged in Oregon as a general contractor and was so employed for the construction of the St. Barnabas Church in McMinnville, Oregon. Lantz subcontracted the plumbing and heating on aforesaid church construction to Bob & Don who in turn subcon- tracted the mechanical sheet metal work to Don F Kizer, an individual proprietor- ship doing business under the trade name of Kizer Sheet Metal, herein called Kizer. Lantz subcontracted the structural sheet metal construction on the church job to McGilchrist and Sons, herein called McGilchrist, of Salem, Oregon. Lantz sub- contracted the wooden roofing on the job to Jack Largent, an individual proprietor doing business under the trade name of Jack Largent Construction Company, herein called Largent. Lantz, Bob & Don, Kizer, McGilchrist, and Largent are all engaged in Oregon in the building and construction industry, an industry affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Salem Building Trades Council, AFL-CIO, herein called Council; Plumbers & Steamfitters Local No. 347, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U.S. and Canada, AFL-CIO, herein called Plumbers; and Sheet Metal Workers International Association Local No. 16, AFL-CIO , herein called Sheet Metal , are, each of them, labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES Lantz, the general contractor in the construction of a church in McMinnville, Oregon, subcontracted the plumbing and heating on the job to Bob & Don , who, in turn , subcontracted the mechanical sheet metal work on the job to Kizer; Lantz sub- contracted the structural sheet metal work to McGilchrist and the wooden roofing to Largent. It is admitted that Respondents Plumbers and Sheet Metal have a labor dispute with Bob & Don and Kizer, respectively . It is denied that Respondent Coun- cil is involved in the said labor disputes , or has a labor dispute with Largent. SALEM BUILDING TRADES COUNCIL, AFL-CIO, ETC. 533 Construction on the job began about June 15, 1964. In July George Reed, business manager of Plumbers, visited the jobsite and according to Paul Wallace, Lantz' con- struction job foreman, said that he would "put a flag on the job" if Bob & Don did the plumbing. Bob & Don came on the job in late July and about August 3 a picket was placed at the jobsite carrying a picket sign which read: Bob-Don's Plb. Sub-standard conditions being observed no dispute with any other contractor Plumbers Local 347 Kizer started his work on the job about August 11, and about August 15 the same picket displayed- a sign which read: Kizer Sheet Metal Sub-standard conditions being observed no dispute with any other contractor Sheet Metal Local 16 The foregoing matters, accurately summarized in the General Counsel's brief, do not, in my opinion, establish a prima facie case of unlawful picketing, inasmuch as the picket signs are clearly "informational" in character, clearly directed solely to those employers on the job with whom one or the other of the respondent locals had a labor dispute, and the fact that Reed informed Lantz' foreman prior to the picket- ing that he would "put a flag on the job" does not, without more, establish that the picketing which followed had an unlawful object. It was lawful for Respondent Plumbers to engage in "informational" or "area standard" picketing against Bob & Don, and therefore it was lawful for Reed to inform Lantz prior to the picketing that picketing would result if these contractors came on the job, unless further evidence discloses an illegal object. The General Counsel in support of his position, relies chiefly on testimony of his witnesses, Paul Welliver and John Asquith, concerning further statments made by respondent agents concerning the picketing, and the fact that, according to his witnesses, the picketing continued for substantial periods during which neither of the subcontractors against whom it ostensibly was directed, were on the job. Welliver, foreman for McGilchrist, testified that at the suggestion of Lantz, the general contractor, he talked to Charles (Chuck) Westergard, assistant business manager of Sheet Metal, and asked him "what the score was," with respect to the picketing. Lantz had said the picketing was "illegal." Westergard replied that it was "legal." Welliver asked Westergard about sending men onto the job, and, according to Welliver, Westergard would not say to send them or not to send them, but stated they could be fined if they went on the job. Shortly thereafter Welliver had a second conversation with Westergard in which, according to him, "we just couldn't get an answer one way or the other, whether to go to work or not go to work." Welliver refrained from going on the job-testifying that the decision was his own- until about a month following his conversation with Westergard. At that time he was accompanied by two men, one of whom refused to cross the picket line. Asquith, in charge of McGilchrist's work on the job, testified that when he started to work on September 17 and found a picket on the job he called Westergard, told the latter that he had to get his men onto the job, and Westergard replied that he could not tell him what to do. Asquith then said to Westergard, "What about the fact that there are union carpenters working behind the lines?" Westergard, according to him, replied, "There's going to be action taken against them." Asquith asked Wester- gard what it would take to get "this picket" off the job, and Westergard replied that he should get "the nonunion people off the job permanently," that "We have three of them on this job; we have Bob & Don's Plumbing, Kizer Sheet Metal, and the notori- ous Jack Largent." Westergard admitted that the conversations testified to by Asquith and Welliver occurred. Concerning Welliver's testimony, he testified, "No, I don't recall the lan- guage being that way ... I advised him that I could not tell him to-what they had to do. They had to make up their own minds." With respect to Asquith, he testified that the latter's testimony could not possibly be right "because he had nothing to do with fining carpenters or filing charges against them," and knew of none that had been charged. `I don't think I said it that way at all. I think I said, `That's their problem,' or something like that." In this manner , Westergard indirectly denied having made references to fines or charges against those crossing the picket line in his conversations with Welliver and Asquith , respectively. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Westergard's testimony did not convince me that Welliver and Asquith testified falsely. I credit them. The fact that Westergard would himself have had no direct part in penalizing carpenters who crossed the picket line does not preclude the possi- bility that he may have had reason to believe, and believed, that action would be taken against them and said as much to Asquith in cider to prevent the latter from pursuing his own job behind the picket line. No motivation appears to exist for Welliver to fabricate testimony prejudicial to Sheet Metal In view of the unequivocal wording of the picket signs, it may well be that Plumbers and Sheet Metal were justified in taking neutral or noncommittal position when asked by employees on the Lantz job not directly involved in the labor dispute whether or not they should observe the picket line. There is nothing in the Act which would require them to invite, urge, or encourage these employees to work behind the picket line Westergaid's suggestion to Welliver that employees working behind the picket line could be fined, and his statement to Asquith that action would be taken against carpenters who crossed the line, were not noncommittal or expres- sions of neutrality. In view of such statements, Welliver and Asquith would season- ably believe that if they and their men worked behind the line they would be penal- ized, and such implied threats were not neutialized by the further statements that they could use their own judgment whether or not to work behind the picket line. Westergard's references to fines and action to be taken against those working behind the line as well as his statement to Asquith about getting all the nonunion contractors on the job, further disclose that while the main thrust of the picketing may have been informational, it had a further object of causing Lantz and McGilchrist to cease doing business with their nonunion subcontractors. The conclusion that this was an object of the picketing is furthei buttressed, though perhaps not inde- pendently established, by the fact that though Bob & Don and Kizer, respectively, had their own places of business near the construction site, they were not picketed except at the McMinnville church job, and by the continuous character of the picket- ing which lasted uninterruptedly from about August 3, 1964, until it was discontinued altogether about November 15 Admittedly, the subcontractors in question did not work continuously on the McMinnville job and their work was not completed at the time the picketing ceased. Conflicting evidence was given by the Respondents' picket, Tom Hannaford, and Bob Clarambeau of Bob & Don, and Don Kizer of Kizer, as to times spent on the job by Bob & Don and Kizer, respectively. As has been previously noted, two picket signs were used by Hannaford, one directed against Bob & Don, the other against Kizer. Hannaford testified that the use of these two signs varied according to which subcon- tractor was on the job and if both were on the job he carried one and displayed the other from his car. He further testified that acting on instructions of Sheet Metal and Plumbers, respectively, he displayed one or the other or both picket signs only on occasions when the subcontractois in question were on the job Clarambeau and Kizer, relying largely on records, testified to numerous dates, some covering intervals of a week or more, when they were not engaged on the McMinnville job during the period of the picketing Clarambeau testified that no employees of Bob & Don were on the jobsite between July 31 and August 31. By letter dated August 14, 1964, Lantz notified Reed of Respondent Plumbers that Bob & Don were not to be engaged on the project during the aforestated period. Notices by or on behalf of Lantz were also given Sheet Metal setting forth days on which Kizer would be on the job Neverthe- less, as previously stated, the picketing was continuous. Where work by picketed contractors on a common situs job is intermittant to a marked degree, it would be unreasonable perhaps to hold the picketing union to strict accountability for a temporary lapse in operations, and this is particularly true where vehicles recognizable and recognized as belonging to the picketed contractors are in and out of the job situs at times when no work is actually being performed-as was true to some degree here-but where there is a lapse in operations of a week or a month-as was the case with Bob & Don-continuous picketing of the absent con- tractor may give rise to a reasonable inference that the object of the picketing is not solely informational. When this inference is added to the other factors related above, a conclusion of unlawful picketing appears justified and required. Further, inasmuch as the picketing was a joint undertaking, with the common objective of requiring the removal of the nonunion contractors from the job, threats or misconduct of one of the principals is attributable to both. In conclusion, I find that Respondents Plumbers and Sheet Metal induced and encouraged individuals employed by McGilchrist and Lantz, respectively, to refuse to render services during the course of their employment, and threatened McGilchrist and Lantz, with an object of requiring the said McGilchrist and Lantz to cease doing business with Bob & Don, and Kizer, as the case may be, thereby engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. SALEM BUILDING TRADES COUNCIL, AFL-CIO, ETC. 535 As to Respondent Council, I find that the evidence is insufficient to establish that it was a party to the unlawful picketing engaged in by Plumbers and Sheet Metal. The two ties by which the General Counsel would bind it, are that it acted as paymaster for the picket who served both Plumbers and Sheet Metal, and Westergard in addi- tion to being business agent of Sheet Metal was Council's secretary. On the second point, I know of no reason why Westergard could not function in a dual capacity, or-in other words-why he should be required to divest himself of his secietaryship in the Council in order to immunize the Council from involvement in picketing under- taken in his capacity of business agent. As to the Council acting as paymaster, we have the undisputed testimony of Reed and Westergard that this was meiely a matter of convenience and that Plumbers and Sheet Metal, respectively, had made arrange- ments to reimburse Council for moneys paid out to the picket in quesLon As for ostensible agency there is no showing that any person affected by the picketing other than the picket himself had knowledge of the place and manner in which the latter received his pay. Therefore no one was misled by this aspect of the case. More affirmatively in defense, no mention of the Council is made in the picket signs, the Council was not named in any conversation between Plumbers and Sheet Metal agents and persons affected by the picketing; and the undisputed testimony is that the Council took no action with respect to the picketing and the matter was never officially brought to its attention.' I shall recommend dismissal of the complaint with respect to Respondent Council. IV THE EFFECT OF THE UNFAIR LABOR PRACTICFS UPON COMMERCE The activities of the Respondents as set forth above, occurring in connection with the operation of the employers 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. V. THE REMEDY Having found that Respondents Plumbers and Sheet Metal engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (n)(B) of the Act, it is recom- mended that they cease and desist therefrom and take certain affirmative action designed to remedy the unfair labor practices and to effectuate the purposes of the Act. CONCLUSIONS OF LAW 1. The Employers as described in section I, above, are employers engaged in com- merce , and Respondents described in section II, above, are labor organizations, all within the meaning of the Act. 2. By the conduct described in section III, above , Respondents Plumbers and Sheet Metal have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (4) (1 ) and (n) (B) of the Act. 3. Respondent Council has not engaged in the alleged unfair labor practices. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and pur- suant to Section 10(c) of the National Labor Relations Act, as amended , it is hereby ordered that: A. Respondent Plumbers & Steamfitters Local No 347 , United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U.S. and Canada , AFL-CIO, is officers , agents , and representatives , shall: 1 Cease and desist from (a) Inducing or encouraging any individual employed by Lantz Construction Co., or any other person engaged in commerce or in an industry affecting commerce, i There is no support for the allegation that Council had a labor dispute with Largent, or that Sheet Metal advised Asquith that the picketing was sanctioned by the Council, unless it is -:petted that this be inferred from Asquith's testimony that Westergard stated that charges would be brought against carpenters working behind the picket line, and that Largent as well as Bob & Don and Kizer would have to be removed from the j^b before the picketing would cease The inference , in my opinion , is a little too broad to rest on such a narrow base Possibly a carpenteis ' local had a dispute with Largent and would have pressed for Largent ' s removal from the job , but this is speculative and no base for findings. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other than Bob & Don Plumbing & Heating Co., to engage in a strike or a refusal in the course of his employment to handle or work on any goods or commodities, or to perform any services, or (b) Threatening, coercing, or restraining Lantz Construction Co., or any other person engaged in commerce or in an industry affecting commerce. Where in either case, an object thereof is forcing or requiring Lantz Construction Co., or any other person as described above, to cease doing business with Bob & Don Plumbing & Heating Co. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its business offices and meeting halls, copies of the attached notice marked "Appendix 1." 2 Copies of said notice, to be furnished by the Regional Director for Region 19, shall, after being duly signed by a representative of Respond- ent Plumbers, be posted by the said Respondent immediately upon receipt thereof, and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 19, signed copies of said notice for posting by Lantz Construction Co , if willing, in places where notices to employ- ees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by the Respondent, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of the receipt of this Decision and Recommended Order, what steps it has taken to comply herewith .3 B. Respondent Sheet Metal Workers International Association Local No. 16, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Inducing or encouraging any individual employed by McGilchrist and Sons, or any other person engaged in commerce or in an industry affecting commerce, other than Kizer Sheet Metal, to engage in a strike or a refusal in the course of his employment to handle or work on any goods or commodities, or to perform any services; or (b) Threatening, coercing, or restraining McGilchrist and Sons, or any other person engaged in commerce or in an industry affecting commerce. Where in either case, an object thereof is forcing Lantz Construction Co., or any other person as described above, to cease doing business with Kizer Sheet Metal. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its business offices and meeting halls, copies of the attached notice marked "Appendix 2." 4 Copies of said notice, to be furnished by the Regional Director for Region 19, shall, after being duly signed by a representative of Respondent Sheet Metal, be posted by the said Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 19, signed copies of said notice for posting by McGilchrist and Sons, if willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by the Respondent, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of the receipt of this Decision and Recommended Order, what steps it has taken to comply herewith.5 2 In the event that this Recommended Order be adopted by the Board, the words, "a De- cision 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" 2In 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 Respondent has taken to comply herewith". ' See footnote 2, supra 5 See footnote 3, supra. SHEET METAL WORKERS INT'L ASSN., LOCAL 141, ETC. 537 APPENDIX 1 NOTICE TO ALL MEMBERS 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- tions Act, as amended, we hereby give notice that: WE WILL NOT induce or encourage individuals employed by Lantz Construc- tion Co., or by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike, or a refusal to perform any services, where an object thereof is to force or require Lantz Construction Co., or any other person to cease doing business with Bob & Don Plumbing & Heating Co. WE WILL NOT threaten, coerce, or restrain Lantz Construction Co., or any other person engaged in commerce or in an industry affecting commerce, for any object set forth in the preceding paragraph. PLUMBERS & STEAMFITTERS LOCAL No. 347, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE U.S. AND 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 employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 612 Lincoln Building, 208 SW. Fifth Avenue, Portland, Oregon, Telephone No. 226- 3361. APPENDIX 2 NOTICE TO ALL MEMBERS 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- tions Act, as amended, we hereby give notice that: WE WILL NOT induce or encourage individuals employed by McGilchrist and Sons, or by any other persons engaged in commerce or in an industry affecting commerce to engage in a strike, or a refusal to perform any services, where an object thereof is to force or require Lantz Construction Co., or any other per- sons to cease doing business with Kizer Sheet Metal. WE WILL NOT threaten, coerce, or restrain McGilchrist and Sons, or any other persons engaged in commerce or in an industry affecting commerce for any object set forth in the preceding paragraph. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION LOCAL No. 16, 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 employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 612 Lincoln Building, 208 SW. Fifth Avenue, Portland, Oregon, Telephone No. 226- 3361. Sheet Metal Workers International Association , Local No. 141, AFL-CIO, and its agent , Raymond Bickers and the American Sign Company. Case No. 9-CB-1200. June 25, 1965 DECISION AND ORDER On April 2, 1965, Trial Examiner Samuel Ross issued his Decision in the above-entitled proceeding, finding that Respondent had engaged 153 NLRB No. 50. Copy with citationCopy as parenthetical citation