American Federation of LaborDownload PDFNational Labor Relations Board - Board DecisionsMay 5, 195089 N.L.R.B. 1168 (N.L.R.B. 1950) Copy Citation In the Matter of SPOKANE BUILDING AND CONSTRUCTION TRADES COUN- CIL OF THE BUILDING AND CONSTRUCTION TRADES DEPARTMENT OF THE AMERICAN FEDERATION Or LABOR ; SPOKANE CENTRAL LABOR COUNCIL, A. F. or L.; BROTHERHOOD OF PAINTERS, DECORATORS AND PAPER- HANGERS OF AMERICA, LOCAL UNION No. 269, A. F. of L.; SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL No. 212, A. F. OF L.; UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL No. 98, A. F. OF L.; WOODROW W. HOOPER AS AGENT FOR THE SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL AND FOR THE BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, LOCAL UNION No. 269; EMIL P. EILIIES AND HARLEY C. HUNTER AS AGENTS FOR THE SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL AND FOR THE SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL No. 212; AND EDWARD A. MCDONEL AS AGENT FOR THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL No. 98, AND FOR THE SPOKANE CENTRAL LABOR COUNCIL and J. E. KIMSEY, d/b/a KIMSEY MANUFACTURING COMPANY Case No. 19-CC-12.-Decided May 5, 1950 DECISION AND ORDER On October 6, 19.49, Trial Examiner Horace Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents 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 recom- mendations of the Trial Examiner only insofar as they are consistent with the findings, conclusions, and Order herein.' I On the basis of the record herein , we, like the Trial Examiner , find that Kimsey is engaged in commerce within the meaning of the Act and that the purposes of the Act will 89 NLRB No. 141. 1168 SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL 1169 The Trial Examiner found that the Respondents engaged in con- duct violative of Section 8 (b) (4) (A) of the Act by (1) maintain- ing Kimsey, a primary employer, on their "unfair" and "We Don't Patronize" lists and circulating these lists among employees gener ally, and (2) causing employees of Harry Lewis Plumbing Company, herein called Lewis, Quinton Electric Company, herein called Quinton, and LeRoy Smith, secondary employers, to cease work be- cause Kimsey was on the "unfair" and "We Don't Patronize" lists. For reasons hereinafter set forth, we agree with the Trial Examiner's conclusions only insofar as they relate to the statements made by cer- tain union officials 2 to employees of Lewis and Quinton at their place of work. 1. For reasons stated in the Grauman decision,3 we do not adopt the Trial Examiner's finding that the Respondents violated Section 8 (b) (4) (A) of the Act by maintaining Kimsey, the primary em- ployer, on their "unfair" or "We Don't Patronize" lists and circu- lating these lists among employees generally. Accordingly, we shall dismiss the complaint in this respect. 2. The Trial Examiner found that George Migliuri, Elwood Grubb, Donald Campbell, Ralph Dickson, LeRoy Smith, and Olaf Rundhaug,4 best be served if we assert jurisdiction in this case. United Brotherhood of Carpenters and Joiners of America, District Council of Kansas City, et at. (Wadsworth Building Com- pae%y, Inc.), 81 NLRB 802. 2 Emil Eilmes, Harley Hunter, and Edward McDonel. Dilmes and Hunter were business agents of the Respondent Sheet -fetal Workers and members of the executive board of the Respondent Council. -icDonel was a business agent of the Respondent Carpenters and a member of the executive board of the Respondent Central. 3Denver Building and Construction Trades Council, AFL (The Grauman. Company), 87 NLRB 755. In that case we found that the unfair listing of a primary employer did not ipso facto constitute a violation of the secondary boycott provisions of the amended Act and was not itself illegal because of other evidence showing improper use of the unfair list. See also, Lumber and Sawmill Workers Union, Local Union No. 11,07, affiliated with United Brotherhood of Carpenters and Joiners of America, A. F. L. (Santa Ana Lumber Company), 87 NLRB 937. 4 These six named individuals, with the exception of Smith whose status is hereinafter discussed, were employees of several employers, subcontractors, engaged by Gimberling Construction Company, the prime contractor to assist the latter in the construction of the Breeze Inn Tavern for Stanley Parrish. Each of them had started work at Breeze Inn before Kimsey delivered and commenced installing fixtures at Breeze Inn. The primary labor dispute herein involved was between the Respondents and Kimsey, who contracted with Parrish to manufacture and install the bar fixtures and refrigeration for Breeze Inn. Thus identified, Kimsey was the primary employer and the employees who walked off the job at Breeze Inn were employees of secondary employers, that is, of neutrals to the dispute. Smith is a painting contractor and at the time of the events in question Olaf Rundhaug was working for him as an employee. Smith is a member of the Contractors Association and by virtue of an agreement between that association and the Painters, Smith has a card entitling him to work as a journeyman painter. The painting he (lid at Breeze Inn was as a subcontractor to Gimberling Construction Company, the general contractor of the job, although he was also engaged by Parrish to perform certain other painting work. We find that Smith's status insofar as pertinent herein was that of an employer, and that therefore as Section 8 (b) (4) (A) is addressed only to the inducement of "employees," Smith' s name was improperly included in the Trial Examiner's 8 (b) (4) (A) finding. 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on orders from the Respondents' representatives Eilmes, Hunter, Hooper,5 and McDonel, engaged in a strike the object of which was to force Parrish to cease doing business with Kimsey, the primary em- ployer. The facts pertinent to this phase of the case are not in dispute. 'Thus, as set forth in the Intermediate Report, Migliuri, Grubb, Camp- bell, Dickson, and Rundhaug started work on the Breeze Inn project .sometime before December 15, 1948. On that date, pursuant to his contract with Parrish, Kimsey made his first deliveries of fixtures for the Inn, and began to install them. Almost immediately thereafter a work stoppage occurred at the Inn, which lasted for about a week. Participating in the walkout were Migliuri, Grubb, Campbell, Dick- son, and Rundhaug all of whom remained away from the project until after the removal of Kimsey's fixtures from the property. The cir- cumstances under which these employees left their jobs at the Inn were as follows. Migliuri and Grubb: These men were employed as plumbers by Subcontractor Lewis. On December 15, while at work at Breeze Inn, they were approached by Union Representatives Eilmes and Hunter," who asked them "if they knew who they were working with here on the job, [and] who those men were over there." Receiving a negative reply, Eilmes, according to his undisputed testimoliy, informed the men that "those are Kimsey Manufacturing men." "Didn't you know that they were on the unfair list? ... you wouldn't want to work with nonunion men on the job here, would you." Thereupon Migliuri and Grubb packed away their tools, left the premises, and returned to the shop of their employer where they received other assignments. , Campbell and Dickson: These men worked for Quinton who had subcontracted for the electrical work at Breeze Inn. Shortly after December 15, Union Representative McDonel went to the Breeze Inn site, and observing Campbell and Dickson at work on the project, ap- proached them and suggested that they get in touch with either their employer or union representative because "the job was on the unfair list." Campbell then questioned McDonel about his identity and upon being advised of McDonel's official position in the Respondent Carpenters, promptly left the project'accompanied by Dickson. Both 5 Hooper was business agent of Respondent Painters and a member of the executive board of Respondent Council. 6 Accompanying Eilmes and Hunter on this occasion was one Frettwell, the business agent of the Laborers' Union. That labor organization, however, is not named as a Respondent herein and, so far as appears, Frettwell did not say anything to Migluri and Grubb at this meeting. SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL 1171 men then proceeded to their employer's shop and after explaining their unexpected presence were assigned other jobs. Rundhaug: Rundhaug and his employer, LeRoy Smith, worked together at Breeze Inn, but before December 15, both men left to do some painting on another project, although they had not yet com- pleted their jobs at Breeze Inn. A few days after December 15, while they were at work on this other project, Gimberling, the general con- tractor at Breeze Inn job, called on them to inquire if they had the key to Breeze Inn, and if so to turn it over to him.7 Smith questioned Gimberling as to the reason for his request, adding that he still had some work to do at the Inn. When Gimberling answered that there was "labor trouble" at the Inn, Smith surrendered the key. On the following day, accompanied by Rundhaug, Smith went to the offices .of the Respondent Painters to ascertain the cause of the "trouble" at the Inn. Smith spoke to Union Representative Hooper who was present in the union offices on this occasion. Hooper explained that "the fixture installation [at the Inn] was unfair and had been on the unfair list of our Council." Upon being asked by Smith if the latter could finish up his work at the Inn, Hooper replied that he "wasn't telling him whether he could or not, that was up to him." The rec- ord shows that Smith and Runchaug stayed away from the Inn until they were advised by Union representative McDonel that "everything had been cleaned up" there. Conclusion Section 8 (b) (4) (A) of the Act prohibits conduct by unions or their agents which induces or encourages employees to engage in work stoppages with a secondary objective. Unquestionably, the purpose of Union Officials Eilmes, Hunter, and McDonel in. going on to the Breeze Inn premises was to further the Respondent's primary dispute with Kimsey. It is also clear, we think, that what these union officials said to Migliuri, Grubb, Campbell, and Dickson was calculated to induce and encourage them to cease work at Breeze Inn. Thus, Eilmes and Hunter approached Migliuri and Grubb at their place of work; pointed out to them that they were working with employees of Kimsey who was on the Respondents' unfair lists; and indicated that "you wouldn't want to work with nonunion men on the job here,'-would you." In a similar vein McDonel spoke to Campbell and Dickson 'According to Gimberling , he sought the key because McDonel , the business agent of the Carpenters, had told him on the previous day that the contractor who was installing the fixtures at Breeze Inn was on the unfair list and that until the matter was straightened out, Gimberling should "stay off" the job. 889227-51-vol. 89-75 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while they were working at Breeze Inn and admonished them imme- diately to contact their employer or union representative because "the job was on the unfair list." That the statements of the union officials did in fact cause these employees to walk off the job is evidenced by the testimony of the employees themselves. Migliuri, Grubb, Camp, bell, and Dickson each testified that he ceased work at Breeze Inn because of the statements made to him by the above-named union officials." We find, therefore, that the above-described activities of Eilmes, Hunter, and McDonel induced and encouraged employees of secondary employers to engage in a work stoppage with a secondary objective, within the meaning of Section 8 (b) (4) (A) of the Act.,, Moreover, as Eilmes and Hunter were officials of the Respondent Sheet Metal Workers and the Council and as McDonel was an official of the Respondents Carpenters and Central, we find that these organi- zations were responsible for the activities of their respective agents 1& We reach a different conclusion, however, with respect to the state- ments made by Hooper to Smith in the presence of Rundhaug. Hooper did not, as did Eilmes, Hunter, and McDonel, visit Breeze Inn or discuss the unfair listing of Kimsey with any employee assigned to the project. His conversation was with Smith, Rundhaug's em- ployer, who went to the union offices after he gave Gimberling his key to Breeze Inn. Rundhaug did not participate in this colloquy. Hooper's comments on this occasion were made in response to ques-. tions put to him by Smith. Thus, in answer to Smith's inquiry as to the cause of the "trouble" at Breeze Inn, Hooper explained that the fixture installation was being handled by an unfair employer. However, he offered no advice when Smith inquired if he could resume work at the Inn, remarking only that it was up to Smith himself to make that decision. On these facts, we are unable to agree with the Trial Examiner that Hooper's statements to Smith in Rundhaug's presence were designed to induce and encourage Rundhaug to cease working at Breeze Inn. In view of the foregoing, we find that Spokane Building and Con- struction Trades Council of the Building and Construction Trades 8 The Trial Examiner does not advert to this testimony in his Intermediate Report. 9 See Denver Building and Construction Trades Council , AFL (The Grauman Company), 87 NLRB 755. Members Houston and Murdock are of the opinion that the statements of the union officials were not tantamount to "inducement and encouragement" for reasons stated in their dissenting opinion in the Grauman case , cited supra . However, considering them- selves bound by the majority opinion in the Grauman case , they concur in the findings herein with respect to these statements. We do not consider material to the issue here the Trial Examiner 's theory concerning the power of the Respondent labor organizations to discipline their adherents, and accordingly reject this theory. 10 Grauman case, cited supra. SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL 1173 Department of the American Federation of Labor; Spokane Central Labor Council, A. F. of L.; Sheet Metal Workers International Asso- ciation, Local 212, A. F. of L., and Brotherhood of Carpenters and Joiners of America, Local No. 98, A. F. of L.; by virtue of the activities of Eilmes, Hunter, and McDonel directed to Migliuri, Grubb, Camp- bell, and Dickson, induced and encouraged employees of Harry Lewis Plumbing Company and Quinton Electric Company to engage in a concerted refusal to work for the purpose of forcing Parrish to cease doing business with J. E. Kimsey, d/b/a Kimsey Manufacturing Com- pany, and thereby violated Section 8 (b) (4) (A) of the Act. Insofar as the complaint alleges that any of the Respondents otherwise violated the Act, it shall be dismissed. 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 Respondents Spokane Building and Construction Trades Council of the Building and Construction. Trades Department of American Federation of Labor, and Sheet Metal Workers International Association, Local 2121 A. F. of L., their officers, representatives, and agents, including Emil P. Eilmes and Harley C. Hunter; Spokane Central Labor Council, A. F. of L., and United Brotherhood ,of Carpenters and Joiners of America, Local No. 98, A. F. of L., their officers, representatives, and agents, including Edward A. McDonel, shall: 1. Cease and desist from inducing or encouraging the employees of Harry Lewis Plumbing Company, Quinton Electric Company or any other employer to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require any employer or other person to cease doing business with J. E. Kimsey, d/b/a Kimsey Manufacturing Company. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act, as amended : (a) Post at the business offices of Spokane Building and Construc- tion Trades Council of the Building and Construction Trades Depart- ment of American Federation of Labor; of Spokane Central Labor Council, A. F. of L.; of Sheet Metal Workers International Association, Local 212, A. F. of L.; of United Brotherhood of Carpenters and Joiners of America, Local 98, A. F. of L., copies of the notice attached 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hereto as an appendix 13 Copies of said notice , to be furnished by the Regional Director for the Nineteenth Region, shall , after being duly signed by a representative of each Respondent , be posted by said Re- spondent immediately upon receipt thereof and maintained for a period of sixty (60) consecutive days thereafter , in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by said Respondents to insure that the notices are not altered , defaced, or covered by any other material; (b) Notify the Regional Director for the Nineteenth Region, in writing, within ten (10 ) days after the date of this Order, what steps the Respondents have taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint , insofar as it alleges that any of the Respondents otherwise violated Section 8 (b) (4) (A) of the Act , be, and it hereby is, dismissed. MEMBER STYLES took no part in the consideration of the above Deci- sion and Order. APPENDIX NOTICE To All Members of Spokane Building and Construction Trades Council of the Building and Construction Trades Department of American Federation of Labor; Sheet Metal Workers International Associa- tion, Local 212 , A. F. of L.; Spokane Central Labor Council, A. F. of L.; and United Brotherhood of Carpenters and Joiners of America, Local No. 98 , A. F. of L. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our members that : WE WILL NOT induce or encourage the employees of HARRY LEWIS PLUMBING COMPANY, QUINTON ELECTRIC COMPANY, or any other employer to engage in a strike or a concerted refusal in the course of their employment to use, manufacture , process, trans- port, or otherwise handle or work on any goods, articles, ma- terials, or commodities, or to perform any services , Where an object thereof is to force or require any employer or other person 11 In the event that this order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words , "A DECISION AND ORDER" the words , "DECRED OF THE UNITED STATES COURT OF APPEALS ENFORCING." SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL 1175 to cease doing business with J. E. Kimsey, d/b/a Kimsey Manu- facturing Company. SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL OF THE BUILDING AND CONSTRUCTION TRADES DEPARTMENT OF AMERICAN FEDERATION OF LABOR, By----------------------------------------- (Title of Officer) SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL 212, A. F. OF L. By----------------------------------------- (Title of Officer) SPOKANE CENTRAL LABOR CO UNCIL, A. F. OF L. By----------------------------------------- (Title of Officer) UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA', LOCAL No. 98, A. F. of L. By----------------------------------------- (Title of Officer) Dated------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Walter Moldawver, for the General Counsel. Messrs. R. Max Etter and William E. Cullen, Jr., of Spokane, Wash., for the Respondents. Mr. J. E. Kimsey, of Spokane, Wash., on his own behalf. STATEMENT OF THE CAGE Upon a second amended charge filed on May 16, 1949, by J. E. Kimsey, d/b/a Kimsey Manufacturing Company, herein called Kimsey, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel' and the Board, by the Regional Director for the Nineteenth Region 1 This term includes particularly counsel appearing at the hearing on behalf of the Gen- eral Counsel. 1176 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD {Seattle, Washington), issued a complaint dated July 7, 1949, against the persons named in the caption, herein called the Respondents, alleging that the Respond- ents had engaged in and were engaging in unfair labor practices affecting com- merce 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 complaint, accompanied by a notice of hearing, were duly served upon the Respondents and Kimsey. With respect to the unfair labor practices the complaint alleged, in substance, as follows: (1) That on or about May 7, 1946, certain of the Respondents, and their agents, placed, and have since maintained, Kimsey on an "unfair" list, and so notified their members, the effect of which was to warn them not to do busi- ness with Kimsey or to work on any project in which Kimsey was also engaged on'penalty of disciplinary action against them; (2) that on or about December 15, 1948, certain of the Respondents, and their agents, pursuant to the placing of Kimsey on an "unfair" list, induced and encouraged George Migliuri.and Elwood Grubb, plumbers in the employ of Harry Lewis Plumbing Company, a sub- contractor on a job known as Breeze Inn, on which Kimsey was also a subcon- tractor, to leave the job; (3) on or about December 16, 1948, the Respondents, and their agents, induced and encouraged LeRoy Smith and Ole Rundhaug, painters, the latter an employee of the former who was also a subcontractor on Breeze Inn, to leave the job; (4) on or about December 28, 1948, certain of the Respondents, and their agents, induced or encouraged Don Campbell and' Ralph Dickson, electricians in the employ of Quinton Electric Company, another sub- contractor on the job, to leave it; and (5) on or about December 29, 1948, the Respondents and their agents successfully demanded that Stanley and Goldie Parrish, the proprietors of Breeze Inn, remove the refrigerator equipment in- stalled by Kimsey, following which plumbers Migliuri and Grubb, painters Smith and Rundhaug, and electrician Dickson, returned to work. Pursuant to notice, a hearing was held on July 19, 1949, at Spokane, Wash- ington, before Horace A. Ruckel, the undersigned Trial Examiner, duly desig- nated by the Chief Trial Examiner. The General Counsel and the Respondents were represented by counsel; Kimsey appeared in his own behalf. All parties participated in the hearing and were accorded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Upon motion, an answer filed by the Respondents in a previous court proceeding 2 was permitted to stand as their answer herein. The answer, while admitting certain allegations of the complaint, denies that the Respondents have engaged in any unfair labor practices, and denies that the Board has jurisdiction of the subject matter. At the conclusion of the hearing 2 the Trial Examiner reserved ruling on a motion by the Respondents to dismiss the complaint. This motion is disposed of by the recommendations hereinafter made. The parties waived oral argu- ment, but were granted until August 3; 1947, to file briefs with the Trial Examiner. Subsequently, this time was extended by the Chief Trial Examiner to August 13. Both the General Counsel and Respondents filed briefs. 2 Sometime prior to the hearing the Regional Director for the Nineteenth Region filed a tetition for injunction, pursuant to Section 10 (1) of the Act, in the District Court of the United States for the Eastern District of Washington, Northern Division. The petition was still pending at the time of the hearing. 2 The record in the injunction proceeding was stipulated to as the record herein. No witnesses were called and no further evidence was adduced before the Trial Examiner. SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL 1177 Upon the entire record in the case the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF KIMSEY MANUFACTURING COMPANY J. E. Kimsey is engaged in the manufacture, sale, and distribution of custom- built store, restaurant, and barroom fixtures and equipment, at a factory in Spokane, Washington, where he employs from 3 to 50 employees, depending upon the amount of business on hand at any particular time. The fixtures, after their manufacture at the plant, are installed and fastened to the walls and floors of the premises of the purchaser, but the electric wiring and plumbing work required to connect up the fixtures and equipment are left for the purchaser to have done by other contractors. Customarily, Kimsey's installations are only a part of an entire job of remodeling or construction, and the purchaser ordinarily engages other contractors to do the electric work, plumbing, painting, carpentry, and other work. . Among the materials used by Kimsey are upholstery material, cotton, springs, veneer, hardwood, paints, glass, metals, refrigerator materials, etc. Total pur- chases of such materials during the year 1948 aggregated $42,450, of which materials of the value of $4,987 were ordered and received directly by him from outside the State of Washington. Additional materials of the value of $20,200 had their origin outside the State. In addition to the State of Washington, Kimsey does business in the States of Oregon, Idaho, and Montana. Of total sales amounting to $93,800 during the year 1948, $29,567 in finished. products were sold, delivered, and installed outside the State of Washington. During the year 1949, until the date of trial, Kimsey's sales totaled $55,000, of which approximately $30,000 was sold outside the State. On the Breeze Inn job, referred to in the complaint, 90 percent of the $2,000 to $2,500 cost of materials used by Kimsey originated outside the State, although none was delivered to him directly across State lines. The Respondents contend, and it is their principal defense to the complaint, that Kimsey's operations are so small and so essentially local in character that the Board should not assert jurisdiction. They cite various Board decisions, principally building construction cases, in support of their contentions,4 where the Board found that to assert jurisdiction would not effectuate the purposes of the Act ; as well as the dictum in other cases which they contend support their position! A careful reading of these cases, however, reveals commerce situations sub- stantially different in kind from that existing here, although so far as the extent of commerce is concerned they may be said to be similar. Thus, in the Mentzer case, Mentzer, a plasterer subcontractor, performed all his work in Pittsburgh and its immediate vicinity, within the State of Pennsylvania. He received none of his materials directly from outside the State, although a substantial part of them originated outside the State. Similarly, in the Petredis case, no finished products were shipped outside the State. + Among the case cited are : Walter J. Mentzer and George E. Wochley, et al., 82 NLRB 389; and Petredis and Fryer, 85 NLRB 241. 5 Ira A. Watson Company, et al., 80 NLRB 533 ; and Samuel Langer, et al., 82 NLRB 1028. 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If Kimsey sold his product only in the local market, the undersigned would have no hesitancy in recommending that the Board likewise decline to assert jurisdiction in this case, since he regards as of little significance the small amount of materials which Kimsey receives directly from outside the State of Washington. But such is not the situation. During the year 1948 Kimsey deliv- ered approximately 32 percent of his finished products, amounting to more than $29,000, to purchasers in three other States. One of these States-Montana- does not border on the State of Washington, and to reach it it is necessary for shipments to cross the upper part of Idaho. During the first half of 1949, the proportion of Kimsey's products transported outside the State increased, and accounted for a little more than half of his entire shipments. Thus, al- though the total amount of business done by Kimsey is small, it cannot be said to be essentially local in character. For this reason the undersigned recom- mends that the Board assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED Spokane Building and Construction Trades Council of the Building and Construction Trades Department of the American Federation of Labor, herein called the Council, consists of about 15 labor organizations affiliated with the American Federation of Labor, which are engaged in the building trades, in- cluding the Electricians, Plumbers, Carpenters, and Sheet Metal Workers. The Respondents' answer admits that these organizations are labor organizations within the meaning of the Act. Spokane Central Labor Council, herein called Central, has about 65 A. F. of L. unions in the Spokane area affiliated with it. All the business agents of the affiliated unions are members of the executive board of Central, including those individuals named in the caption hereof. The Council sends representatives to the meetings of the executive board of Central, and they participate in the meetings and vote. The executive board transacts such business as is designated by Central. Central has the power to negotiate wages and other working condi- tions, and to deal with employers in the area with respect to grievances and labor disputes. The undersigned finds that the above organizations are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR. PRACTICES A. The designation of Kimsey as "unfair" It is not in controversy that as the result of a labor dispute in 1946, between Kimsey and Millmen's Local No. 870, and Painters Local No. 269, over the hiring of nonunion labor, these organizations placed Kimsey on their "unfair" lists, and persuaded the Council to do likewise. In turn, the Council notified the Building Trades Section of the State Federation of Labor, with which it is affiliated, to put Kimsey on its "unfair" list. The Federation notified all build- ing trades councils in the State of Washington to this effect. The Council also notified local councils in other cities not to handle any fixtures manufactured by Kimsey, caused this fact to be publicized in Labor World, as labor newspaper, and circulated mimeographed "unfair" lists among its affiliated unions and among the contractors with whom it had contracts, as well as among other employees of members of American Federation of Labor locals. The Council also sent copies of the "unfair" list to Central. SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL 1179 By letter dated July 18, 1946, Local 870 also requested Central to place Kimsey's name on its "We Don't Patronize" list which Central did. Central distributes this list quarterly among its affiliated locals with the request that they in turn distribute it among their. members. B. Union laws implementing "unfair" designations 1. Laws of the Council The laws of the Council provide that no affiliated union shall use the designa- tion "unfair," or organize a strike, without the sanction of the Council, that when a strike so sanctioned takes place all affiliated unions shall assist the one in difficulty, and that the secretary of the Council shall request the representa- tive of all the affiliated crafts to remove their members from the job. The affiliated unions are required to bear the expense of pickets placed on any struck job by the Council. The laws provide that the Council shall have full jurisdiction over such strikes, and that any contractor who works on a struck job or employs nonunion workers on it shall be declared unfair. Any union member "who refuses to stop work when ordered to do so by the business agent" of the Council, "shall be reported" to the Council, and "all employees on a struck job shall leave the same-and remain away from same until such time as a settlement is made or otherwise ordered by an official of the local council-" e The laws provide that charges against affiliated locals may be brought by the Council with their parent organizations for action detrimental to the welfare of the organization, and the affiliated locals are subject to disciplinary action by their own national organizations. Delegates to the Council from its affiliated locals are similarly made subject to such action. Herbert Walters, secretary of the Council until November 1948, testified that contracts negotiated by the Council become part of the trade rules of the local organizations, that their members are considered bound by these contracts, that if a member violates their terms he is subject to disciplinary action by his local, that the contracts normally provide that if the employer has been notified that the source of the material which he uses has been placed on the "unfair" list of the Council, he, as well as his subcontractors, shall be restricted in his selec- tion of the kind or source of such material, and that the contracts provide that where nonunion men are employed on the 'job the union reserves the right to remove all union men from it. 2. Laws of Central The laws of Central provide that an affiliated local having a grievance against an employer may make a written request that the latter be placed on the "We Don't Patronize" list ; that the executive committee shall call a meeting to investi- gate the justice of the request and report its findings to the Council with its recommendation ; that the delegates may vote to place the employer on the "We Don't Patronize" list, whereupon all affiliated locals shall be notified of the action ; that a notice to that effect shall be sent to all members of organized labor ; and that "each member shall refuse to patronize such person or firms and do all in his or her power to keep others from doing so." Central's con- stitution also contains a pledge to "withdraw all patronage and business from 6 Laws of Building Trades Council, Section 36. 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any unfair employer." It is further provided that charges may be preferred against members of affiliated locals for violating any laws, resolutions, or measures adopted by Central, and that should an affiliated local refuse to discipline its members against whom such charges have been preferred, the national organization may be requested to discipline it and it may be expelled from the Council. 3. Laws and contracts of affiliated locals Walter Cook, who succeeded Walters as secretary-treasurer of the Council, admitted while testifying, and the undersigned finds, that under the laws and contracts of the various locals affiliated with the Council, members are not per- mitted to work with nonunion employees on the same job under threat of dis- ciplinary action. There is much other evidence in the record to the same effect. Both Walters and Cook testified, and it is found, that among the duties of the officers and business agents of locals, as well as of the Council, are to inspect construction jobs to ascertain whether the laws of the Council are being com- plied with, and to remove union members from jobs where nonunion men are employed. It is the duty of union members under such circumstances to leave the job when notified by the business agent. C. Activities of officers complementing the laws; the Breeze Inn controversy In February 1948, one Stanley Parrish began the construction of a tavern in Spokane to be known as Breeze Inn. He entered into an agreement with Gim- berling Construction Company, a general contractor. Gimberling, in turn, em- ployed Harry Lewis Plumbing Company to do the plumbing, Quinton Electric Company to do the electric wiring, and Le Roy Smith to do the painting. At the time the labor trouble hereinafter described arose, Quinton had completed his work for Gimberling and had undertaken to do additional work for Parrish, direct. Smith had painting work to do for Gimberling as well as work for Parrish, direct. On November 3, 1948, Parrish contracted directly with Kimsey for the manufac- ture and installation of bar fixtures and refrigeration. Gimberling, Quinton, Lewis, and Smith employed A. F. of L., while Kimsey employed C. I. O. labor. In mid-December 1948, Kimsey's C. I. O. employees began the installation of the fix- tures at Breeze Inn. On December 15, while his employees were unloading and installing a bar, George Migliuri and Elwood Grubb, plumbers employed by Lewis, were accosted by Emil Eilmes and Hurley Hunter, business agents for the Sheet Metal Workers, who told them that Kimsey was on the Respondents' "unfair list," and urged them not to work on the job. Migliuri and Grubb thereupon picked up their tools and left. Fred Barth, business agent for the Plumbers, then phoned Lewis, telling him that the Breeze Inn job was "unfair," and that neither the 'plumbers nor the other crafts would work on it until the matter was "straightened out." Migliuri and Grubb were assigned other work. Parrish telephoned Respondent Woodrow Hooper, business agent for the Painters as well as president of the Council, who advised Parrish to tear out Kimsey's fixtures, promising that the Council would supply him with new fix- tures built by A. F. of L. labor. Hooper, at about the same time, told Gimber- ling, the general contractor, that Kimsey was on the "We Don't Patronize" list, SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL 1181 and that Gimberling should see Respondent Edward McDonel, business agent of the Carpenters. McDonel, as had Hooper, told Gimberling that Kimsey was "unfair" and that Gimberling should stay off the job until the matter was taken care of. McDonel also informed Parrish to the same effect, and told Kimsey himself that work on Breeze Inn was to be stopped. Respondent Council, in addition, informed Parrish that his job was "unfair" and asked him to attend a meeting of the Council, the purpose of which was to get Kimsey removed from the Breeze Inn job. The minutes of the executive board of the Council for December 15 reveals that Hooper, Eilmes, Hunter, Cook, Barth, and others including Parrish, attended the meeting . Parrish was advised to see what he could do about breaking his contract with Kimsey, and was threatened with a picket line and with being placed on the "unfair" list himself if he did not do so. Parrish relayed this warning to Kimsey, and asked him to take out his fixtures so that he, Parrish, could get his tavern completed. McDonel admitted, while testifying, that subsequent to the removal of plumbers Migliuri and Grubb from Breeze Inn work, he talked to Donald Campbell and Ralph Dickson, electricians on the job, telling them that it was "unfair." As a result, Campbell and Dickson, as had Migliuri and Grubb, quit work. Hooper admitted, while testifying, that he had a conversation with Smith, the painting contractor, and Olaf Rundhaug, Smith's employee, about continuing work on Breeze Inn, and told them that the job was "unfair," saying that whether or not they continued to work was up to them. Subsequently, McDonel telephoned Smith that the job had been "cleaned up" and that he could go ahead with the painting. The minutes of the meeting of the executive board of the Council for December 27 show that it was attended by Eilmes, Hunter, Barth, Cook, and others, in- cluding Parrish. After some discussion Parrish agreed to have the fixtures which had been installed by Kimsey removed, if he would then be permitted! to proceed with the completion of his tavern. Permission was granted. Parrish, then arranged to have other fixtures put in by A. F. of L. labor, and Kimsey was notified to tear out those which he had installed. The A. F. of L. workmen previously named, who had left the job, returned, and Breeze Inn was completed.' Kimsey was charged by Parrish with the cost of removing his fixtures as well as for a delay of 17 days in completing the work on Breeze Inn. Conclusions The above facts, undisputed in almost all essential particulars by the Re- spondents, establish the fact of a secondary boycott of Kimsey and Kimsey's 4 There is credible, uncontroverted evidence in the record of further ramifications of the Breeze Inn dispute and of the placing of Kimsey on the "unfair" list. For example, in the spring of 1949 two other local concerns, Ike and Mac's Tavern, and Mark and Evers, refused to do business with Kimsey. In the latter case a sink installed by Kimsey was removed and in the former a strike of bartenders was threatened because the employer was on the Council's "unfair list" and because of the protests of A. F. of L. members and a shop steward. These incidents are not specifically pleaded in the complaint, however, and involve unions and union members not joined as Respondents . The undersigned has not considered these incidents in making his recommendations. 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD products indistinguishable from the secondary boycotts found by the Board in the Wadsworth 8 and Osterink 9 cases to be in violation of the Act10 No primary labor dispute existed between the Respondents and Harry Lewis Plumbing Company, Quinton Electric Company, or Le Roy Smith, nor is it so contended. There can be no doubt that the aim and purpose of placing Kimsey on the Council's "unfair" and "We Don't Patronize" lists, was to prevent employ- ers other than Kimsey, with whom the primary dispute was, from doing busi- ness with him by preventing their employees from working on his products, or alongside his employees on the same project. The Respondents' listing of Kim- sey, although it occurred before the enactment of Section 8 (b) (4) (A) of the Act, was continued thereafter, and was widely publicized by the Council, by Cen- tral, and by the individual unions of Painters, Sheet Metal Workers, and Car- penters, named in the complaint. The listing was supplemented by the direct action of the Respondents Hooper, Eilmes, Hunter, and McDonel in inducing the employees named to leave those jobs, enforced by their knowledge that to refuse to do so would invoke discipline by their unions. The labor organizations involved cannot escape responsibility for the activities of these individuals. Both the Council and Central were, under well established legal and equitable prin- ciples, co-sponsors with the individual labor organizations. Such co-sponsorship carries with it the responsibility of joint participants in a common enterprise for one another's acts, performed in furtherance of the enterprise. It is clear from the record that the employees who were called from working on Kimsey's products and from working alongside his employees, understood that they were not to work on any products manufactured by any contractor listed "unfair" by the Respondents, and that, if they did so, they were subject to dis- cipline by their unions. Hooper, Eilmes, Hunter, and McDonel may not have expressly threatened Migliuri, Grubb, Smith, Rundhaug, Campbell, or Dickson with retribution if they continued to their work on the construction of Breeze Inn-and the absence of an express threat is substantially the only defense to this phase of the case-but it was not necessary that they do so to come within the proscriptions of the Act. The Board found in the Wadsworth case, supra, that an employee did not quit voluntarily where a business agent asked him "whether he knew what the situation was" on the job, where it was shown, as here, that the employee was aware that union rules prohibited him from working on it I' The undersigned finds that the Respondent unions, and each of them, by main- taining Kimsey on their "unfair" or "We Don't Patronize" lists after August 22, 1947, the effective date of the Act, and circulating the lists among employees generally, and by inducing Migliuri, Grubb, Smith, Rundhaug, Campbell, and Dickson to engage in a strike or concerted refusal in the course of their employ- ment to handle or work on products manufactured by Kimsey, engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. $ International Brotherhood of Carpenters and Joiners of America , et at., and Wadsworth Building Co., Inc., 81 NLRB 802. 9 Bricklayers, etc. Union No. 1, et at. and Osterink Construction Co., 82 NLRB 228. io Section 8 (b) (4) (A) of the Act provides, in part, as follows: "It shall be an unfair practice for a labor organization or its agents . . . to engage in, or induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or perform any services where an object there is : (A) forcing or requiring any employer or self employed person to . . . cease doing business with any other person. [Emphasis supplied.] "See also Shore v. Building and Construction Trades Council of Pittsburgh, 173 F. 2d 678. SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL 1183 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III, above, occurring in connection with the operations of Kimsey 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, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have violated Section 8 (b) (4) (A) of the Act, he will recommend that they cease and desist therefrom , and that they take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. The Council, Central, Brotherhood of Painters, Decorators and Paperhangers of America, Local No. 269, Sheet Metal Workers International Association, Local No. 212, and United Brotherhood of Carpenters and Joiners of America, Local No. 98, are labor organizations within the meaning of Section 2 (5) of the Act. 2. Kimsey is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. By inducing or encouraging members of the Painters, the Sheet Metal Workers, the Carpenters, and the Electricians to engage in a strike or concerted refusal in the course of their employment to handle or work on goods manufac- tured by Kimsey, the object thereof being to force or require employers named above to cease doing business with him, the Respondents, and each of them, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the labor organizations named in the complaint and their agents, including Woodrow Hooper, Emil Eilmes, Harley Hunter, and Edward McDonel, shall : 1. Cease and desist from inducing or encouraging the employees of Harry Lewis Plumbing Company, Le Roy Smith, and Quinton Electric Company, or of any other employer, by maintaining Kimsey Manufacturing Company on an "unfair" or "We Don't Patronize" list, or by calling any employee off his job, or by related conduct, to engage in a strike or concerted refusal to handle or work on any goods or to perform any services, where an object thereof is to force or require Harry Lewis Plumbing Company, Le Roy Smith, and Quinton Electric Company, or any other employer or person to cease doing business with Kimsey Manufac- turing Company. 2. Take the following affirmative action, which the undersigned finds will effec- tuate the policies of the Act : (a) Notify George Migliuri, Edward Grubb, Le Roy Smith, Ole Rundhaug, Don Campbell, and Ralph Dickson that they are free to work on building jobs 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on which Kimsey Manufacturing Company is a contractor if assigned to such jobs by their employers , and that their acceptance of such employment will not prejudice their rights , privileges , and standing in the respondent labor organi- zations ; (b) Post at the business offices of the several respondent labor organizations tiamed in the complaint , in Spokane , Washington , copies of the notice attached hereto as an Appendix . Copies of said notice , to be furnished by the Regional Director for the Nineteenth Region, shall , after being duly signed by an official representative of the respondent labor organizations , and individually by Re- spondents Woodrow Hooper, Emil Eilmes, Harley Hunter, and Edward McDonel, be posted by the Respondents immediately upon receipt thereof, and maintained for a period of sixty ( 60) consecutive days thereafter , in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken by the Respondents to insure that said notices are not altered , defaced, or covered by any other material; (c) The Respondents Council and Central to send copies of the above-mentioned notice to its affiliated unions ; (d) Notify the Regional Director for the Nineteenth Region in writing, within ten (10 ) days from the receipt of this Intermediate Report, what steps the Respondents have taken to comply herewith. It is further recommended that, unless the Respondents shall , within ten (10) days from the receipt of this Intermediate Report, notify the said Regional Director in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the said Respond- ents to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of National Labor :Relations Board, any party may, within twenty ( 20) days from the date of ,service of the order transferring the case to the Board , pursuant to Section 203.45 of said Rules and Regulations , file with the Board, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding ,(including rulings upon all motions or objections ) as he relies upon, together with an original and six copies of a brief in support thereof ; and any party may, within the same period , file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of excep- tions and/or briefs , the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed , and if mimeographed shall be double -spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations , the findings , conclusions , recommendations , and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order , and all objections thereto shall be deemed waived for all purposes. Dated at Washington , D. C., this 6th day of October 1949. HORACE RuCSa., Trial Examviner. SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL 1185 APPENDIX NOTICE -To All Members of Brotherhood of Painters, Decorators and Paperhangers of America, Local Union No. 269; Sheet Metal Workers International Association, Local No. 212; United Brotherhood of Carpenters and Joiners of America, Local No. 98; all affiliated with the American Federation of Labor 'Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to -effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that : WE WILL NOT induce or encourage the employees, of Harry Lewis Plumb- ing Company, LeRoy Smith, or Quinton Electric Company, or any other employer, by maintaining Kimsey Manufacturing Company on an unfair or We Don't Patronize List, or by calling any employee off the job, or by related conduct, to engage in a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Lewis Plumbing Com- pany, LeRoy Smith, or Quinton Electric Company, or any other employer or other person, to cease doing business with Kimsey Manufacturing Company. ' WE WILL NOT interfere with the employment of George Migliuri, Elwood Grubb, LeRoy Smith, Ole Rundhaug, Don Campbell, or Ralph Dickson, on any building job on which Kimsey Manufacturing Company is a contractor, if assigned to such jobs by their employers. Their acceptance of such em- ployment will not prejudice their rights, privileges, and standing in Brother- hood of Painters, Decorators and Paperhangers of America, Local Union No. 269; Sheet. Metal Workers International Association, Local No. 212; United Brotherhood of Carpenters and Joiners of America, Local No. 98; and International Brotherhood of Electrical Workers, Local No. B-73; all affiliated with the American Federation of Labor. BROTHERHOOD OF PAINTERS , DECORATORS AND PAPERHANGERS OF AMERICA , LOCAL U*ION No. 269, --------------------------------------------------------------- Labor Organization. By--------------------------------------------------------------- (Title of Officer) SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL No. 212, --------------------------------------------------------------- "Labor Organization. By------------------------------------------------------ (Title of Officer) UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMER- ICA, LOCAL UNION No. 98, --------------------------------------------------------------- Labor Organization. By--------------------------------------------------------------- (Title of Officer) 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SPOKANE BUILDING AND CONSTRUCTION TRADES COUNCIL, --------------------------------------------------------------- Labor Organization. By--------------------------------------------------------------- (Title of Officer) SPOKANE CENTRAL LABOR COUNCIL, --------------------------------------------------------------- Labor Organization. By--------------------------------------------------------------- (Title of Officer) WOODROW HOOPER, As agent for Spokane Building and Construction Trades Council and for Brotherhood of Painters, Decorators and Paperhangers of America, Local Union No. 269. EMIL EILMES, As agent for Spokane Building and Construction Trades Council and for Sheet Metal Workers International Association, Local No. 212. HARLEY HUNTER, As agent for Spokane Building and Construction Trades Council and for Sheet Metal Workers International Association, Local No. 212. EDWARD MCDONEL, As agent for Spokane Central Labor Council and for United Brother- hood of Carpenters and Joiners of America, Local No. 98. Dated------------------------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. Copy with citationCopy as parenthetical citation