Sheet Metal Workers International Association

National Labor Relations Board - Board Decisions

Feb 25, 1953

102 N.L.R.B. 1660 (N.L.R.B. 1953)

1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION
No. 28 and FERRO-Co CORPORATION. Case No. 2-CC-193. February
25, 1953
Decision and Order
On September 24, 1952, Trial Examiner Horace A. Ruckel issued
his Intermediate Report in this proceeding, finding that the Respond-
ent had not violated Section 8 (b) (4) (A) as alleged in the complaint,
and recommending that the complaint be dismissed, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter, the
General Counsel and the charging party filed exceptions to the Inter-
mediate Report and the General Counsel filed a supporting brief
which the charging party adopted.
The Board has reviewed the rulings made by the Trial Examiner
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 brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions.
1. The Trial Examiner found, and we agree, that the Respondent
did not induce or encourage the employees of Dierks Heating Com-
pany, Inc., to engage in a strike or a concerted refusal in the course
of their employment to install radiator enclosures manufactured by
Ferro-Co, and that therefore it did not thereby violate Section 8 (b)
(4) (A) of the Act.
In reaching this conclusion, the Trial Examiner found that Hawks,
a business agent of Local 28, asked Prescott, who he had been told was
"in charge" of the job at Public School 184,2 whether the radiator
enclosures had been made by Dierks, at the same time exhibiting a list
of exempt projects," not including P. S. 184. When Prescott replied
that he did not think the enclosures had been made by Dierks, Hawks
requested him to call the Company. Because he was hard of hearing,
Prescott asked employee Melhorn to telephone, after having told him
of Hawks' visit. Melhorn spoke to Superintendent Hay who told
them to "go ahead and do your other work. Leave them lay there."
When Hawks arrived, only Prescott and Pirani were working on the
enclosures. Pirani continued to work on them, not stopping until
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Styles and Peterson].
' We agree with the Trial Examiner, for the reasons detailed in the Intermediate Report,
that Prescott was either a supervisor or a representative of management on this project.
' I. e., those projects for which work had been subcontracted before November 29, 1949,
were exempted from the joint adjustment board ruling of November 17, 1949, that, with
certain exceptions , radiator enclosures were to be fabricated by members of the Sheet
Metal Workers International Association.
102 NLRB No. 166.
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION 1661
told to do so by Prescott after the call to Hay.4 The men completed
the other work on the project and were assigned to new job sites.
After a conference, in which Dierks explained that it had not intended
to break the contract between Employer's Association of Roofers and
Sheet Metal Workers of Greater New York, as interpreted by the
joint adjustment board, by subcontracting to a manufacturer who did
not contract with Local 28, Hay ordered the men back and the installa-
tion work was finished.
Like the Trial Examiner, we believe that these circumstances clearly
establish that the Respondent did not thereby violate Section 8 (b)
(4) (A). It is well established that a labor organization is not pro-
hibited, by that section, from thus enlisting an employer's assistance.5
As Pirani continued to work and as Prescott was either a supervisor or
a representative of management, and Hawks spoke to him as such,
there was no strike 6 or even an attempt to induce a strike 7
2. The General Counsel excepts to the Trial Examiner's failure to
rule on the independent allegation that Local 28 was itself engaged in
a strike against the use of Ferro-Co products, relying on the adoption
and use by Respondent Local 28's officers and agents of the exemption
list. So far as we can determine from the record, this list, compiled
by agreement between the Respondent and the Association, although
similarly used in relation to other employers, has never been used
except as an inducement of employers aimed at effectuating a sec-
ondary work stoppage. Such conduct does not violate any of the
prohibitions contained in the Act .8
3. Ferro-Co excepts to the Trial Examiner's failure to pass upon
the Respondent's defense based on the contract and Conway's Express,
87 NLRB 972. As we have found, in agreement with the Trial Exam-
iner, that the Respondent did not direct pressure at Dierks' employees,
we deem it unnecessary to pass on its intent or motivation in attempt-
ing to persuade Dierks.
Accordingly, we shall dismiss the complaint herein.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Respond-
ent, Sheet Metal Workers International Association, Local Union
No. 28, be, and it hereby is, dismissed.
'The Trial Examiner struck Pirani 's testimony to the effect that Prescott reported
that he had had Melhorn call Dierks, that Melhorn had spoken to Hay and reported Hawks'
grievance , and that Hay had told him to go ahead and work on other tasks.
O Local Union No. 50 , United Brotherhood of Carpenters and Joiners of America, AFL,
and Clyde M. Farr, 98 NLRB 1288 ; Arkansas Express, Inc ., 92 NLRB 255.
E Gould h Pressner, 32 NLRB 1195.
7 Conway's Express, 87 NLRB 972, 981.
6 See Western, Inc., 93 NLRB 336, 337 ; The Grauman Company, 87 NLRB 755 , 756-757.
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Pursuant to a charge dated July 14, 1951, filed by Ferro-Co Corporation, herein
called Ferro-Co, the General Counsel for the National Labor Relations Board,
herein respectively called the General Counsel and the Board, by the Regional
Director for the Second Region (New York, New York), issued his complaint
dated September 18, 1951, against Sheet Metal Workers International Associa-
tion, Local No. 28, herein called Local 28 or Respondent, alleging that Respondent
had engaged in and was engaging in certain unfair labor practices affecting
commerce within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. Copies of the charge, the complaint, and a notice of hearing were duly
served upon Respondent and Ferro-Co.
With respect to the unfair labor practices the complaint alleged, in substance,
that Respondent through its agents induced and encouraged the employees of
Dierks Heating Company, Inc., herein called Dierks, and other employees, to
engage in a strike or a concerted refusal in the course of their employment to
handle specially fabricated radiator enclosures which were purchased from
Ferro-Co, who did not employ members of Respondent, an object thereof being
to force or require Dierks and other employers who belonged to the Heating,
Piping and Air Conditioning Contractors New York City Association, Inc., herein
called the Association, to cease dealing in radiator enclosures manufactured by
Ferro-Co or by other manufacturers not employing members of Respondent.
In sum, the complaint alleges that Respondent engaged in unlawful secondary
boycott.
On October 4, 1951, Respondent filed its answer denying that it had engaged in
any unfair labor practices. Pursuant to a notice a hearing was held before me
at New York, New York, from May 6 to 12, 1952. The General Counsel, Re-
spondent, Ferro-Co, and Dierks were represented by counsel and participated in
the hearing.' Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing upon the issues was afforded all parties.
On the second day of the hearing I granted a motion by counsel for the Associa-
tion, in which he was joined by counsel for Respondent, to sever this proceeding
from Cases Nos. 2-CA-2185 and 2-CB-693 which the Regional Director had
previously consolidated with this case for purposes of hearing. My Intermediate
Report and Recommended Order in the CA and CB cases is issued concurrently
herewith.
At the conclusion of the hearing the parties waived oral argument and were
granted until June 2, 1952, to file briefs with me. Subsequently this time was
extended by the Chief Trial Examiner to August 7. Briefs have been received
from the General Counsel and Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
A. Ferro-Co Corporation
Ferro-Co Corporation is a New York corporation, having its principal office
and place of business in Brooklyn, New York, where it is now and has at all
' Prior to the severance of this case from Cases Nos. 2-CA-2185 and 2-CB-693, counsel
for parties to those cases, but not to this, were present.
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION 1663
material times herein been engaged in the business of manufacturing sheet-
metal products such as radiator enclosures. During the year ending July 1951,
Ferro-Co purchased raw materials such as steel, sheet metal, and other material
valued at about $125,000, approximately 75 percent of which was shipped to its
Brooklyn plant from points located outside the State of New York. During the
same period, Ferro-Co manufactured and sold radiator enclosures and other
equipment valued at approximately $450,000, of which about $60,000 was shipped
from its Brooklyn plant to points outside the State of New York.
B. The business of Dierks Heating Company, Inc.
Dierks Heating Company, Inc., is a New York corporation with its principal
place of business at Long Island City, New York, where it is engaged in the
business of installing heating and ventilating systems. During the year ending
July 1951, Dierks purchased heating and ventilating parts and other equipment
valued at about $1,000,000, of which about 60 percent was purchased directly
from manufacturers located outside the State of New York.
C. The Association
The Heating, Piping and Air Conditioning Contractors New York City Associa-
tion, Inc., is composed of heating and air-conditioning contracting companies,
including Dierks, who are engaged in the installation of such equipment in
the Metropolitan Area of New York City. The Association represents Dierks
and its other members in collective bargaining. Since 1937 it has recognized
and dealt with Local 28 as the exclusive collective-bargaining agent of the
employees of the members of the Association in connection with the installation
of heating and ventilating equipment, and has negotiated collective-bargaining
contracts with Local 28.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 28, affiliated with Sheet Metal Workers International Associa-
tion, is a labor organization admitting to membership employees of Dierks
and other members of the Association.
III. THE ALLEGED UNFAIR LABOR PRACTICES
For many years past, Local 28 has had a collective-bargaining agreement
with the Association and with the Employers Association of Roofers and Sheet
Metal Workers of Greater New York. Article II of the agreement dated
August 9, 1950, was due by its terms to expire in 1953 and was hence in force
on June 22, 1951, the date of the alleged unfair labor practices of Respondent
hereinafter discussed. It contained the following provision defining the kinds
of work over which Respondent was to have jurisdiction :
Section I. This Agreement covers the rates of pay, rules and working
conditions of all employees of the Employer engaged in the manufacture,
fabrication, assembly, erection, installation, dismantling, reconditioning,
adjustment, alteration, repairing and servicing of all sheet metal work
of No. 10 U. S. or its equivalent or lighter gauge, including all working
drawings or sketches-used in fabrication and erection, and all other
work included in the jurisdictional claims of Sheet Metal Workers Inter-
national Association.
The contract provided, as did a previous contract executed in 1947, for the
establishment of a joint adjustment board for the adjustment of controversies
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arising under the operation of the contract, particularly jurisdictional disputes.
By the contract all sheet -metal work of No. 10 U. S. or its equivalent or lighter
gauge is agreed to be within the jurisdiction of Respondent.
A few members of the Association , in apparent violation of the jurisdictional
provisions of the contract as construed by Local 28, did not produce enclosures
either in their own shops or in the shops of sheet-metal subcontractors . When it
was brought to the attention of Respondent by its business agent , William Hawks,
that the Baker -Smith Company , performing work for the National City Bank
of New York , a member of the Association , was contemplating using radiator
enclosures not made in its own sheet-metal shop or by a sheet -metal subcon-
tractor under contract with Local 28, Respondent filed a grievance with the
joint adjustment board which found in favor of Respondent declaring that the
fabrication of radiator enclosures came under the jurisdiction of Local 28.
Following this decision , exemptions from it were agreed upon as to contracts
which had already been entered into by employers covering certain special types
of radiator enclosures , and a list was drawn up of such exemptions.
The Alleged Secondary Boycott
In June of 1951 , Dierks was engaged in installing the heating system in
Public School 184 in New York City. Pursuant to the agreement between Local
28 and the Association, Dierks manufactured all the sheet-metal work involved
in Public School 184 in its own shop excepting the radiator enclosures which
Dierks subcontracted to Ferro-Co , whose employees were and are represented by
Local 259, UAWA-CIO. Whether Dierks subcontracted this work to Ferro-Co
in ignorance of the decision of the joint adjustment board granting "jurisdiction"
over such sheet-metal work to Local 28, is irrelevant to the issues here. In
fact, Public School 184 was not on the exemption list previously adverted to.
On June 22, 1951, Hawks, when making his rounds, arrived at Public School
184. On this day there were working on that project four employees of Dierks
who were installing radiator enclosures and finishing certain other work which
had been left uncompleted. These employees were Prescott, Pirani, Melhorn,
and Newman. At the time of Hawks' arrival, Prescott and Pirani were actually
installing the radiator enclosures which had been delivered by Ferro-Co. Pirani
was drilling holes in the concrete in which the covers were to be set. Melhorn
and Newman were engaged elsewhere in the building. Hawks asked Newman,
whom he met at the entrance, who was in charge of the crew and Newman told
him that it was Prescott. Hawks found Prescott and asked him where the radia-
tor covers had been manufactured , at the same time exhibiting the list of ex-
empted projects. When it was agreed that Public School 184 was not on the list
Hawks, suspecting that the covers had not been manufactured by members of
Local 28, asked Prescott to "hold off."
There is no material controversy in the record as to the foregoing . There is
some dispute, however, as to whether Hawks, when he asked Prescott to "hold
off," meant to hold off installing the covers indefinitely or only until Prescott
could take the matter up with Dierks ' superintendent , Andrew Fray, at the
Dierks office . In any event, Prescott , who was partially deaf, instructed Mel-
horn to telephone Hay, which Melhorn did, Hawks meanwhile calling Mell Far-
rell , the then recording secretary of Local 28, to report the situation to him.
Melhorn's conversation with Hay lasted 5 or 10 minutes and during this period
Prescott appears not to have resumed his work on the radiator enclosures.
Pirani, however, according to his own undisputed testimony, and I so find, con-
tinued to bore holes in the cement as he had been doing upon Hawks' arrival.
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION 1665
It is uncontroverted that Hawks at no time addressed any word to Pirani or
to any of the four employees other than Prescott, except the inquiry directed
to Newman.
Pirani, although he continued uninterruptedly with his work, overheard part
of the conversation between Prescott and Hawks sufficient to know that the lat-
ter was objecting to the installation of radiator covers manufactured by
Ferro-Co, at least until the matter was adjusted. While Prescott was arranging
with Melhorn to call Hay, and Hawks was looking for a telephone to call Farrell,
the two men drifted out of Pirani's hearing.
Hay told Melhorn to suspend the installations of the enclosures until the
matter could be straightened out and to proceed with other work in the building.
Melhorn reported these instructions to Prescott who directed Pirani to join Mel-
horn and Newman at other work. The placing of the covers was held up 3 or
4 weeks while a grievance filed by Respondent was processed. In the end, Re-
spondent accepted Dierks' explanation that no violation of the contract had been
intended, and Dierks was permitted to install the Ferro-Co covers.
The General Counsel's Contentions ; Prescott's Status
The General Counsel contends that the conduct which Respondent through its
business agent, Hawks, engaged in at Public School 184 amounted to a "strike."
In resolving this question it is necessary to consider the specific duties of Pres-
cott. The General Counsel asserts that he was not a supervisory employee
within the meaning of the Act ; Respondent that he was.
The record shows that work on Public School 184 had been to some degree
already performed by one of the regular installation crews of Dierks, which
regularly did outside installation work. There were six crews, each under
the supervision of a regular foreman. Foreman Derenthal had been in charge
of the Public School 184 crew. By June 1951 it had become necessary to assign
his crew to another project. The crew which Hay selected to finish the work
at Public School 184 was selected from the sheet-metal workers in the shop, a
not unusual circumstance when there was a rush of work, and Prescott was put
in charge. As was the practice in such an event, he continued to draw the same
pay that he received when doing shop work, whereas the regular foremen re-
ceived somewhat greater pay.
I see no other difference, however, between the prestige and authority of
Prescott while on an outside job and the prestige and authority of Derenthal
or the other regular outside foremen. Dierks testified that only he or Hay
hired or fired employees but that in any matter involving disciplinary action
against a member of an installation crew the foreman in charge would be re-
quired to report the matter to Hay, the final decision resting with Dierks him-
self. Prescott, like the permanent outside foremen, assigned employees to par-
ticular jobs on projects and changed them around although he could not remove
them from the project. If there were a question as to whether Pirani, Melhorn,
Newman, or any other employee on a project should work in the basement or
elsewhere in the building, Prescott made that decision.
According to Dierks, Prescott and the other emergency foremen who ordinarily
worked in the shop had "about" the same authority over the installation crew
as the regular foreman. They were supposed to keep the men busy and keep
the work moving. They were charged with the custody of the tools, time-
sheets, and working plans, which they checked. At brief periods they went
throughout the building to check upon the members of the crew. Each week
Hay would visit the job, perhaps twice, to check it and Dierks himself once
or twice. Prescott, while on an outside installation job, was characterized by
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dierks himself as well as by the members of the crew as "foreman." Hay's
testimony as to the duties of the installation crew foremen, including Prescott,
corroborates that of Dierks.
Prescott's status differs fundamentally from that discussed in Roy Stone Trans-
fer Corporation, recently decided by the Board? There a union's approach
was to an employee who ordinarily was a rank-and-file warehouse employee,
but who on occasion substituted for one who combined the duties of a receiving
clerk with those of a supervisor. The Board found that the warehouse employee
on such occasion merely took over the duties of a receiving clerk and not the
supervisory duties. Here, Prescott was not simply a substitute for Derenthal,
but rather an alternate. He, and others like him, performed all the duties
which the regular outside installation foremen exercised. The latter's duties,
it is not disputed, were supervisory in character.
Conclusions
The question is whether those in charge of the installation crews, specifically
Prescott, are supervisory employees within the meaning of the Act, or only
"working foremen" without its meaning. This is a familiar and frequently a
close question. From the evidence in this record I conclude that Prescott, on
the occasion when Hawks visited him in June 1951, was a supervisory employee
within the meaning of the Act.
Assuming for the sake of argument, however, that all that the evidence showed
was that Prescott was, as the General Counsel contends, only a "working fore-
man" or, for that matter, as he does not urge, that he was only a trusted em-
ployee of somewhat greater skill than the employees working with him, he
would in my opinion nevertheless represent management, the only one on the
job who could do so, and the only one whom Hawks or anyone else seeking to
talk to a representative of Dierks for any purpose could approach. When
Hawks asked Newman who was in charge of the crew he was told that it was
Prescott. I find that he spoke to him as a representative of management and
not as an employee. Pirani alone of the employees on the job overheard part
of the conversation between Prescott and Hawks. But this is of no significance
since Hawks' remarks were not addressed to him.'
Neither is it relevant that Prescott was a member of Local 28.' For that mat-
ter so was Hay.
It has been repeatedly held by the Board that the proscription of Section 8
'(b) (4) (A) of the Act under which this case is brought is of strike pressure
elirected to employees of a secondary employer where the primary dispute is
with another employer! It is settled law that Section 8 (b) (4) does not pro-
hibit labor organization from enlisting an employer's assistance. Hawks was
within his legal right in seeking to dissuade Dierks, an employer, from proceed-
ing with the installation of radiator enclosures manufactured by Ferro-Co. In
point of fact I find that the work of installing radiator covers was not sus-
pended prior to the receipt of Hay's instructions over the telephone to drop this
and proceed with other work. Pirani, it has been found, continued the work
he had been doing when Hawks arrived, and Prescott himself suspended his
work only for the purpose of laying the matter before Hay. Even if the record
P 100 NLRB 856.
s See Arkansas Express, Inc., 92 NLRB 255.
' See Arkansas Express, Inc., supra.
5 See Arkansas Express, Inc., supra ; also Local Union No. 50, United Brotherhood of
Carpenters and Joiners of America, AFL, and Clyde M. Furr, 98 NLRB 1288, and cases
cited therein.
C. C. LANG & SON, INC. 1667
showed that Prescott himself ordered the work stopped permanently as the
result of Hawks' representations, the General Counsel would be in no better
circumstance. For Prescott, in the same sense as Hay, represented management
and it was him only whom Hawks approached.
As another defense in its behalf, Respondent asserts that it did not commit
an unfair labor practice within the meaning of Section 8 (b) (4) (A) of the
Act because its object was not "to force or require" Dierks to cease doing busi-
ness with Ferro-Co, but only to remedy what Respondent thought to be a viola-
tion of a valid collective-bargaining agreement with the Association. Conway'8
Express,' and other cases are cited in support. Inasmuch as I have found that
Respondent did not direct pressure at Dierks' employees, I find it unnecessary
to consider for what purpose or with what design it may have attempted to per-
suade Dierks.
CONCLUSIONS OF LAW
1. Ferro-Co Corporation and Dierks Heating Company, Inc., are engaged in
commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Respondent Sheet Metal Workers International Association, Local Union
No. 28, is a labor organization within the meaning of Section 2 (5) of the Act.
3. Respondent has not engaged in the unfair labor practices alleged in the
complaint.
[Recommendations omitted from publication in this volume.]
8 87 NLRB 972.
C. C. LANG & SON, INC., and UNITED FOOD WORKERS , LOCAL UNION
No. 530, RETAIL, WHOLESALE , AND DEPARTMENT STORE UNION, CIO.
Case No. 7-CA-565. February 26, 1953
Decision and Order
On July 9, 1952, Trial Examiner Albert P. Wheatley issued his In-
termediate Report in this proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices in vio-
lation of the National Labor Relations Act, and recommending that
it cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter the Respondent and the General Counsel filed exceptions
to the Intermediate Report, and the Respondent filed a brief.'
The Board 2 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
I The Respondent also requests oral argument. In our opinion the record , exceptions,
and brief fully present the issues and the positions of the parties . Accordingly, the
request is denied.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Chairman Herzog and
Members Styles and Peterson].
102 NLRB No. 161.