Building & Construction Trades Council of Boston

National Labor Relations Board - Board Decisions

Feb 28, 1958

119 N.L.R.B. 1816 (N.L.R.B. 1958)

'1816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Local had bargained in good faith during numerous and lengthy
sessions over a period of some 10 months From the outset, Texhte and Respondent
Local had made their respective positions clear on the "scope" clause Neither
party's position was acceptable to the other on this issue The Respondent
Local made some concessions and counterproposals on this issue , which were
still unacceptable to Texlite The negotiations finally resulted in a tentative
agreement with respect to all matters, except the "scope" clause The failure to
execute this contract on February 23, 1956, was due to the fact that a genuine
impasse had been reached on this one remaining issue, consideied by both parties
as basically important The position of the parties remained unchanged on this
issue at the meeting with Personnel Director Young on May 9, 1956 Young's
letter of June 1, requesting another meeting "for the purpose of concluding the
contract," gave no indication that Texhte had altered its position on this issue,
as in fact it had not. On the contrary, the implication of Young's letter was that
the Board's decision in the RM proceeding had upheld Texlite's position Thus,
further negotiations on this issue were rendered futile by the continued existence
of the good-faith impasse 22 The "duty to meet" imposed by the Act "of course
does not mean that parties must engage in futile bargaining in the face of a genuine
impasse " United States Cold Storage Corporation, 96 NLRB 1108-1109 23 -Under -
the circumstances, Respondent Local's failure to answer Young's June letter did not -
constitute an unlawful refusal to bargain
Upon the basis of the entire record considered as a whole, I find that Respondent
Local's insistence, to the point of a good-faith impasse, upon the inclusion of a
clause which would require Texhte to assign to the employees in its unit certain
duties or work tasks performed by the employees in the Steelworkers' unit, as a
condition of signing the contract with respect to which agreement had been reached
on all other terms, did not constitute a refusal to bargain within the meaning of
Section 8 (b) (3) of the Act I will accordingly recommend that on this ground
alone the complaint also be dismissed.
On the basis of the foregoing findings and upon the entire record in the case, I
make the following
CONCLUSIONS of LAW
1 Texlite, Inc, is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act
2 International Brotherhood of Electrical Workers, AFL-CIO, and Local 59,
International Brotherhood of Electrical Workers, AFL-CIO, are labor organizations
within the meaning of Section 2 (5) of the Act
3 All tube benders, journeymen sign electricians, erectors, apprentices, and
helpers of Texlite, Inc , employed at its plant, exclusive of all clerical, technical,
and other employees and supervisors, as alleged in the complaint, do not con-
stitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act
4. The Respondents have not, engaged in unfair labor practices, as alleged in
the complaint, within the meaning of Section 8 (b) (3) of the Act
[Recommendations omitted from publication ]
as Central Metallic Casket Go , 91 NLRB 572, 573, Harcourt and Company), Inc, 98
NLRB 892, 902
28 The Supreme Court has held that "the Act does not encourage a party to engage in
fruitless marathon discussions at the expense of frank statement and support of his
position " N L R B v American National Insurance Co., 343 U S 395, 404
Building & Construction Trades Council of Boston , AFL-CIO
(Metropolitan District ) and John E. Deady and J. J. Redding-
ton Electric Service Co. Case No. 1-CC-177. February 28,1958
DECISION AND ORDER
On September 19, 1957, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding
119 NLRB No. 227.
BUILDING & CONSTRUCTION TRADES COUNCIL OF BOSTON 1817
that the Respondents had engaged in and were engaging 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 Re-
spondents filed exceptions to the Intermediate Report, together with
a supporting brief.
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 Leedom and Members
Rodgers and Jenkins].
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,a conclusions, and recom-
mendations of the Trial Examiner, with the additions and
modifications noted below.
The Trial Examiner found, contrary to the contention of the Re-
spondents, that the Respondent Council is a labor organization within
the meaning of Section 2 (5) of the Act. In view of the admission
in the testimony of Respondent Deady that the Council negotiates
collective-bargaining agreements with at least one employer, Metro-
politan Transit Authority, we agree with this finding.3 In any event,
it is clear that the Council is an agent of its member local unions and
was acting as such when it engaged in the conduct described by the
Trial Examiner; 4 and that such conduct by an agent of a labor
organization was unlawful under Section 8 (b) (4) (A) of the Act .5
1 For the reasons set forth in The Great Atlantic and Pacific Tea Company, National
Bakery Division, 118 NLRB 1280 , we affirm the Trial Examiner 's denial of the Respond-
ents' motions that the General Counsel be directed to furnish Respondents with documents
secured by the Board in its investigation of this case , and we also affirm the Trial
Examiner 's denial of the Respondents ' resulting motion that the complaint be dismissed.
Member Jenkins, having expressed his disagreement with the majority 's denial of a similar
motion in The Great Atlantic and Pacific Tea Company case in his dissenting opinion,
now concurs because he feels bound by Board policy as determined by the majority in that
case.
2In support of the Trial Examiner 's finding that the Board 's jurisdictional requirements
are satisfied, see Jonesboro Grain Drying Cooperative, 110 NLRB 481, as modified by
Whippany Motor Co, Inc, 115 NLRB 52.
3 Section 2 ( 5) defines a " labor organization " as : ". . . any organization of any
kind . . . in which employees participate and which exists for the purpose, in whole
or in part, of dealing with employers concerning grievances , labor disputes , wages, rates
of pay, hours of employment , or conditions of work." [Emphasis supplied .] Cf Mon-
santo Chemical Company (John F. Queeny Plant), 119 NLRB 69, where an otherwise
similar Council engaged in no collective bargaining directly with employers
4 Thus, Section 2 of the Council's constitution and bylaws states that : "The jurisdiction
of this Council shall completely cover the building and construction industry either in
erection, repair, alteration or demolition, and this Council is endowed with full autonomy
11over all matters affecting all workmen engaged in said industry . . .
5 Section 8 (b) (4) (A ) provides that . "It shall be an unfair labor practice for a labor
organization or its agents . . ." to engage in the type of conduct engaged in by the
Respondents. [Emphasis supplied.]
1818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, therefore, that Respondent Council as a labor organization
and/or as an agent of such,6 and Respondent Deady as an agent of
Respondent Council, violated Section 8 (b) (4) (A) of the Act.
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 Respondent Building & Con-
struction Trades Council of Boston, AFL-CIO (Metropolitan Dis-
trict), its officers, representatives, and agents, including John E.
Deady, shall:
1. Cease and desist from inducing or encouraging the employees of
Cliff Compton, Inc., Carlson Construction Company or Sandy
Plumbing Company or of any other employer, to engage in a strike
or concerted refusal in the course of their employment to perform
any services where an object thereof is to force or require Adams
& Swett Cleansing Company, Inc., or any other employer or person,
to cease doing business with J. J. Reddington Electric Service Co.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at the business offices of Building & Construction Trades
Council of Boston, AFL-CIO (Metropolitan District) copies of the
notice attached hereto marked "Appendix A." I Copies of said notice,
to be furnished by the National Labor Relations Board Regional
Director for the First Region, shall, after being duly signed by an
authorized representative of Respondent Council be posted by said
Respondent 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.
Reasonable steps shall be taken by said Respondent to insure that the
notice is not altered, defaced, or covered by any other material.
(b) Mail to the aforesaid Regional Director for the First Region
signed copies of the notice attached hereto marked "Appendix A" for
posting, Cliff Compton, Inc., Carlson Construction Company and
Sandy Plumbing Company willing, in all locations where notices to
employees are customarily posted.
(c) Notify the aforesaid Regional Director for the First Region in
writing, within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
9 There is of course, no issue as to the labor organization status of the Council's member
local unions.
7In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words "A Decision and Order," the words "A
Decree of the United States Court of Appeals, Enforcing an Order."
BUILDING & CONSTRUCTION TRADES COUNCIL OF BOSTON 1819
APPENDIX A
NOTICE TO ALL MEMBERS OF BUILDING & CONSTRUCTION TRADES
COUNCIL OF BOSTON, AFL-CIO (METROPOLITAN DISTRICT)
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 you that:
WE WILL NOT engage in, or induce or encourage the employees
of Cliff Compton, Inc., Carlson Construction Company or Sandy
Plumbing Company, or of any other employer, to engage in a
strike or a concerted refusal in the course of their employment to
perform any services, where an object thereof is to force or require
Adams & Swett Cleansing Company, Inc., or any other employer
or person, to cease doing business with J. J. Reddington Electric
Service Co.
BUILDING & CONSTRUCTION TRADES
COUNCIL OF BOSTON, AFL-CIO
(METROPOLITAN DISTRICT),
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
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 AND RECOMMENDATIONS
ISSUES
The issues herein are: (1 ) Whether the Building & Construction Trades Council
of Boston , AFL-CIO ( Metropolitan District ), herein sometimes called the Council,
and John E . Deady induced and encouraged employees of Cliff Compton, Inc.,
Carlson Construction Company and Sandy Plumbing Company to engage in a con-
certed refusal to work with employees of J. J. Reddington Electric Service Co., herein
sometimes called Reddington , with an object of forcing or requiring Adams & Swett
Cleansing Company, Inc., to cease doing business with Reddington and (2 ) whether
the Council is a labor organization within the meaning of the National Labor
Relations Act, as amended , herein called the Act.
THE FACTS
During the latter part of January 1957, J. J. Reddington Electric Service Co., a
nonunion electrical contracting concern , contracted with Adams & Swett Cleansing
Company, Inc., to install electrical wiring in a building being renovated at 376
Dorchester Avenue, South Boston , Massachusetts . Reddington started this work
during the latter part of May 1957.
On June 4, 1957, John E. Deady, secretary- treasurer and acting general agent
for Building & Construction Trades Council of Boston , AFL-CIO ( Metropolitan
District ), appeared at the Dorchester Avenue job site about 8:15 a. in. He walked
over to Arthur A. Berube ( an employee of Cliff Compton, Inc.), the carpenter
foreman on the job,' and asked Berube if he knew "this job was nonunion ." Berube
1 There were only two carpenters on this job Consequently , the carpenter foreman
worked with tools, putting in partitioning.
1820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responded "it isn't" and Deady then said "well, it is. There are men here on the
job nonunion . You have got a bricklayer nonunion ; you have got electricians
nonunion ." Berube answered he did not think that was the situation and called
to an electrician 2 who was nearby and asked him if he belonged to "a local." The
electrician responded that he did not . Deady then told the group which had as-
sembled ( consisting of Berube , a carpenter mate named Stanley Galemo, both
employees of Cliff Compton Inc., two plumbers , employees of Sandy Plumbing
Company, and some ironworkers , employees of Carlson Construction Company)
"this job being nonunion , they are trying to get away with something . They can't
do that; we are going to put a stop to it." Deady then told Berube and the carpenter
mate that he (Deady ) could not do anything to them because they did not belong
to the Building & Construction Trades Council of Boston , AFL-CIO (Metropolitan
District ), but they ( the Carpenters Union ) had their own rules (about working
with nonunion workers ). Deady then told the ironworkers ( 4 in number) and
the plumbers ( 2 in number ), employees of subcontractors Carlson Construction
Company and Sandy Plumbing Company , that they could not work there. The
carpenters , the ironworkers and the plumbers ceased working and the ironworkers
and pliunbers left the job site.
After talking with the workmen , Deady conferred with L. Cliff Compton, the
person responsible for coordination of the job.3 Compton asked Deady how he
could "straighten out the job so we could go back to work" and Deady told Compton
he would have to get rid of the nonunion men-either employ all unionmen or all
nonunion men but not employ some of each .4 Compton stated he would get rid
of Reddington and hire a union electrical concern and Deady said "when you do
that , I will give you a release." That afternoon J. J. Reddington Electric Service
Co. was replaced by Electric Service & Co., a union electrical contracting concern
and Deady agreed "to release the job and let all the men go back to work." There-
after, work at this job site resumed with Electric Service & Co., instead of Reddington,
installing the electrical wiring.
Conclusions
The facts found above reveal that Deady, secretary-treasurer and acting general
agent for the Council induced and encouraged employees of Subcontractors Cliff
Compton, Inc., Carlson Construction Company, and Sandy Plumbing Company to
engage in a concerted refusal to work with employees of J. J. Reddington Electric
Service Co. and that an object of this conduct was to force or require Adams & Swett
Cleansing Company, Inc., to cease doing business with Reddington. The Act pro-
scribes inducement or encouragement of a concerted refusal by employees to perform
work in the course of their employment for such an object. (See Local 11 United
Brotherhood of Carpenters & Joiners of America et al. (General Millwork Corpo-
ration), 113 NLRB 1084.)
The Council, as its name implies, is a council or association of Building & Con-
struction Trades Unions of Boston and is in turn affiliated with the National Building
& Construction Trades Department, AFL-CIO. The Council is composed of dele-
gates from its affiliated unions. Since Deady is the secretary-treasurer and acting
general agent for the Council there is no doubt herein that the Council is responsible
for the acts and conduct involved herein. However, Respondents contend that the
Council is not a labor organization within the meaning of the Act (Section 2 (5))
and that, consequently, there can be no order against it or its agent, Deady. Coun-
cils similar to the one involved herein have been uniformly held to be labor organi-
zations under the Act and Respondent's contentions are hereby rejected. (See Metal-
lic Building Company, 98 NLRB 386 at 387, footnote 3, and 395; enfd. 204 F. 2d
826 (C. A. 5), cert. denied 347 U. S. 911, and Montgomery Ward & Co., 110 NLRB
256 at 257, footnote 1.) For similar reasons the Trial Examiner rejects Respondent's
contention that the Council is not a legal entity capable of being proceeded against
in its own name. Also, the Act expressly authorizes actions against labor organiza-
tions (see Sections 2 (1), 10, and 301).
2 An employee of Reddington.
s Arthur Berube and Stanley Galemo were also present.
* In the abstract this would indicate Deady's object was to cause Adams & Swett
Cleansing Company, Inc, either to cease doing business with Reddington or to cease doing
business with the union subcontractors. Obviously Deady was not interested in the latter
and he made this clear to Compton.
GENERAL ELECTRIC CO. 1821
ULTIMATE FINDINGS AND CONCLUSIONS
In summary, the Trial Examiner finds and concludes.
(1) The evidence adduced in this proceeding satisfies the Board's requirements
for the assertion of jurisdiction herein.5
(2) Building & Construction Trades Council of Boston, AFL-CIO (Metropoli-
tan District), is a labor organization within the meaning of the Act and John E.
Deady is its agent within the meaning of the Act.
(3) The Council and its agent, John E. Deady, by inducing and encouraging
employees of Cliff Compton, Inc., Carlson Construction Company, and Sandy Plumb-
ing Company to engage in a concerted refusal to perform services with an object
of forcing or requiring Adams & Swett Cleansing Company, Inc., to cease doing
business with J. J. Reddington Electric Service Co. engaged 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 affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
i At the hearing before the Trial Examiner it was stipulated that
.T. J. Reddington Electric Service Co during the year 1956 performed services in
excess of $100,000 for the Boston Edison Company, a public utility doing an annual
gi oss business in excess of $3,000,000; Massachusetts Cement Block Company, New
England Metallurgical Company, white Bros. Milk Company, and the Bay State
Chemical Company, all of which ship products valued in excess of $50,000 annually
to States outside the Commonwealth of Massachusetts and are engaged in interstate
commerce within the meaning of the National Labor Relations Act.
General Electric Co.-Apparatus Service Shop and International
Union of Electrical, Radio and Machine Workers, AFL-CIO.
Case No. 14-CA1-1548. February 28, 1958
DECISION AND ORDER
On May 31, 1957, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices 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
filed exceptions to the Intermediate Report and a supporting brief.
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 Leedom and Members
Bean and Jenkins].
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 Intermedi-
ate Report,' the exceptions and brief,' and the entire record in the
'We correct a typographical error in the Intermediate Report respecting the hearing-
dates The hearing was held on March 27 and April 23 through April 25, 1957
2After the Respondent filed its exceptions and supporting brief, it filed a motion to re-
open the record. The General Counsel filed a memorandum in opposition to the motion.
Because we dismiss the complaint for reasons set out in this Decision and Order, we find:
that it is not necessary to rule on the Respondent's motion
119 NLRB No. 219.