Carpenters Local 751

National Labor Relations Board - Board Decisions

Jul 16, 1973

204 N.L.R.B. 1102 (N.L.R.B. 1973)

1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, Local Union 751, AFL-CIO and Paul J.
Ortega and Melvin T. Azevedo , d/b/a Imperial Cab-
inet Shop . Cases 20-CC-1235 and 20-CB-2666
July 16, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On November 13, 1972, Administrative Law Judge
David E. Davis issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief. The Respondent filed
a statement in response to the General Counsel's ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith.
The complaint, in substance, alleges that: (1) Re-
spondent Union threatened AMB' with a work stop-
page if AMB did not cease using nonunion employees
to install cabinets manufactured under nonunion cir-
cumstances and/or if AMB attempted to install such
cabinets; (2) Respondent induced and encouraged an
employee of AMB to refuse in the course of his em-
ployment to install such cabinets; and (3) an object of
Respondent's conduct has been to force or require
AMB to cease doing business with Imperial in viola-
tion of Section 8(b)(4)(i) and (ii)(B) of the Act. The
complaint further alleges that Respondent restrained
and coerced AMB in the selection of their representa-
tive for the purposes of collective bargaining and the
adjustment of grievances in violation of Section
8(b)(1)(B) of the Act.
AMB is general contractor and in the course of its
operation at Creekside Medical Plaza project, it sub-
contracted to Imperial 2 certain work relative to the
manufacture and installation of cabinets and formica
tops. AMB is also a party to the Carpenters Agree-
ment for the 46 Northern California counties, which
includes the Respondent Union. Said agreement pro-
hibits certain subcontracts. The General Counsel does
not attack the legality of the subcontracting clause but
Associated Medical Builders, Inc.
2 Paul J . Ortega and Melvin T Azevedo, d/b/a Imperial Cabinet Shop
claims that Respondent Union applied it in an illegal
manner here. Although there was no explicit demand
by Respondent that AMB cease doing business with
Imperial, we believe, contrary to the Administrative
Law Judge, that all the circumstances establish that
Respondent's conduct herein violated Section
8(b)(4)(i) and (ii)(B) of the Act.
The record reveals that on April 18, Frank Morobi-
to, Respondent Union's secretary-treasurer, told Rus-
sell Jones, AMB's vice president in charge of the
construction project, that he had a problem, namely,
that AMB was using nonunion cabinets and non-
union employees to install the cabinets. Morobito also
told Jones to remove the nonunion installers or he
would have to remove the union men from the job.
Jones replied that he was not aware that Imperial (the
supplier and installer of the cabinets under a subcon-
tract with AMB) was nonunion and asked for a cou-
ple of hours to contact Imperial and see what could
be done to correct the problem. Thereafter, as a result
of a conversation between Jones and Imperial, the
Imperial employees took their tools and left the job-
site . That same afternoon Jones told Morobito that
the nonunion employees had been removed. Morobi-
to replied "okay" and left the jobsite. Later that same
afternoon AMB and Imperial held a conference and
agreed that AMB would install the cabinets and that
the installation costs would be deducted from the
agreed-upon price for the cabinets and installation
under the subcontract.
The next morning, April 19, Jones told James Lom-
bard, a foreman for AMB and a member of the Re-
spondent Union, that the problem had been resolved
and that union carpenters could be hired to install the
cabinets. Lombard arranged for carpenters from
Respondent's hiring hall to install the cabinets. Later
that day, Carl Mainert and James Evans, representing
the Respondent, came to the jobsite and told Lom-
bard they wanted to see the cabinets. Lombard direct-
ed the two men to the cabinets.
On April 27 Lombard received a summons to ap-
pear before the Respondent's Executive Board to
show cause why charges should not be preferred
against him. The charge was signed by Carl Mainert.
When Lombard appeared before the Executive
Board on May 2 he testified that he was asked if he
knew whether the cabinets were of union or nonunion
manufacture and he replied that he did not know.
Lombard further testified that no one at the meeting
told him not to handle the Imperial cabinets, that he
was not told that charges would be brought against
him for handling the cabinets, and that he was not
fined or punished in any way.
After the Executive Board meeting concluded,
Lombard called Jones and told him that he had been
204 NLRB No. 154
CARPENTERS LOCAL 751
cited by the Respondent for employing nonunion car-
penters and installing nonunion materials and that he
would not install the next group of cabinets when they
arrived. Lombard repeated his position to Jones the
following day. On May 9, McKenzie, a business agent
for the Respondent, told Jones that AMB could go
ahead and install the cabinets and that he would re-
solve the problem with Imperial when Ortega, a part-
ner in Imperial who was out of the country at the time,
returned.'
With respect to the 8(b)(4)(ii)(B) allegations, we are
persuaded that Morobito's reference on April 18 to
the nonunion character of the Imperial cabinets and
installers clearly demonstrates that Respondent's pro-
test was directed toward AMB's doing business with
a nonunion subcontractor, Imperial, rather than
being supportive of a work preservation object .4 We
base this conclusion on the testimony by: (1) Jones
that Morobito told him, inter alia, not to use nonunion
materials on the job S which Jones understood to
mean , specifically, the Imperial cabinets; and (2)
Morobito's testimony that Respondent has not ob-
jected to union subcontractors using carpenters from
Respondent's hiring hall, who have performed the
same kind of work under a subcontract arrangement.
Moreover, as late as May 9, Respondent' s Business
Agent MacKenzie told AMB it could go ahead and
install the cabinets with union carpenters and he
would try and resolve the problem with Imperial later.
Clearly the only problem remaining with Imperial af-
ter April 18 and on May 9 involved the fact that the
cabinets were manufactured under nonunion circum-
stances . Finally, it would appear that Respondent's
agreement with AMB refers only to the installation of
the cabinets and not to the manufacture of the cabi-
nets . There is no evidence in the record that AMB's
carpenters engage in the manufacture of such cabi-
nets . Therefore, Respondent could not claim a valid
work preservation object as a basis for objecting to the
manufacture of the cabinets under nonunion circum-
stances . Accordingly, under all the circumstances
3 The record evidence with respect to the situation at the jobsite between
May 3 and May 9 is not entirely clear . Jones testified that he never asked
any of the men to install the cabinets . Lombard testified that there were not
any cabinets to install and when the next group of cabinets arrived they sat
for only a day or so while other work was being done. However, Jones also
testified that he told Lombard , during this period , that some men would have
to be laid off if "we couldn't go ahead and set the cabinets , and there was
some men laid off due to this fact." The one man Jones identified was
Moorhead , one of the carpenters hired by Lombard on April 19 to install the
cabinets
4 The Administrative Law Judge found that Morobito sought to enforce
the "perfectly legal clauses" of the Carpenters agreement with AMB and
discounted Morobito's reference to the nonunion character of the Imperial
cabinets . We disagree for the reasons discussed in the body of our Decision.
5 While Morobito credibly testified that he never told Lombard not to
handle Imperial cabinets, the record reveals that Morobito did not deny
telling Jones not to use the nonunion materials
1103
here, we find that by Morobito's threat of a work
stoppage on April 18, Respondent violated Section
8(b)(4)(ii)(B) of the Act.
The record further reveals that even after AMB
replaced the Imperial installers with union carpenters,
Respondent exerted pressure on AMB through its su-
pervisor, James Lombard, a member of the Respon-
dent Union. Thus, Respondent sent its representa-
tives, Mainert and Evans, to thejobsite to examine the
cabinets. Thereafter, a notice, based on a charge
signed by Mainert, was issued to Lombard to appear
before the Respondent's Executive Board. When
Lombard appeared before the Executive Board he
was questioned about the nonunion manufacture of
the cabinets.6 There can be little doubt that Respon-
dent was exerting pressure on Lombard to refrain
from installing the Imperial cabinets in view of the
fact that immediately after the Executive Board meet-
ing Lombard telephoned Jones and told him he had
been cited by the Respondent for employing non-
union carpenters and for installing nonunion mate-
rials and that he would not install the next group of
cabinets when they arrived. These products had al-
ready been purchased and delivered to the jobsite for
installation . It was not within the discretion of Lom-
bard to decide whether or not to install the cabinets.
Rather, Lombard was in constant communication
with his superior, Jones, who was in charge of the
construction project. Under these circumstances, we
find that the Respondent's effort to dissuade Lom-
bard from installing the cabinets himself or assigning
such work to employees under his direction constitut-
ed an attempt to induce him as an individual to with-
hold his services in order to force AMB (his employer)
to cease dealing with Imperial within the meaning of
Section 8(b)(4)(i)(B) of the Act. Sheet Metal Workers
International Association, Local 99, AFL-CIO (Associ-
ated Pipe & Fitting Mfgrs.), 175 NLRB 738, 739.
The consolidated complaint also alleged, and we
find, contrary to the Administrative Law Judge, that
Respondent Union violated Section 8(b)(1)(B) of the
Act. As described above, Mainert signed the charge
which resulted in Lombard being summoned to ap-
pear before the Respondent's Executive Board soon
after visiting the jobsite to examine the cabinets. The
problem of the nonunion installers had already been
resolved. Further, Morobito acknowledged that the
citation involved the installation of the cabinets.
Thus, it is clear that the underlying dispute giving rise
to Lombard's appearance before the Executive Board
was AMB's continuing to install the Imperial cabi-
nets .' Lombard had full authority to hire or fire per-
6 Morobito admitted on cross-examination that the citation against Lom-
bard involved the installation of the nonunion cabinets
7 Moreover , Respondent's business agent, MacKenzie, told AMB on May
Continued
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonnel as needed by the scheduling of work. He also
had the unrestricted authority to direct employees in
their work. Thus, the Administrative Law Judge cor-
rectly found that Lombard was a working foreman
and a supervisor within the meaning of the Act. It is
likewise significant to note that in his supervisory ca-
pacity Lombard was also responsible for settling mi-
nor disputes between craft groups working on the job.
Hence, when Lombard was summoned to the meet-
ing of the Executive Board, under the circumstances
described herein, it necessarily operated to inhibit and
restrain him in representing the Employer, on whose
behalf he acts. In fact, it is readily apparent that Lom-
bard was intimidated by Respondent's questions be-
cause after the meeting he called Jones and told him
he had been cited by the Respondent and that he
would not install the next group of cabinets. The fact
that Respondent did not discipline Lombard is not
determinative. That Lombard could reasonably have
concluded that further action by Respondent would
ensue if he continued to install the Imperial cabinets
cannot be gainsaid. Accordingly, we find that by sum-
moning Lombard to appear before the Executive
Board and there questioning him about the Imperial
cabinets, Respondent violated Section 8(b)(1)(B) of
the Act. See San Francisco-Oakland Mailers Union No.
18, International Typographical Union (Northwest Pub-
lications), 172 NLRB 2173.
CONCLUSIONS OF LAW
1. Paul J . Ortega and Melvin T. Azevedo, d/b/a
Imperial Cabinet Shop , is an employer engaged in
commerce within the meaning of Section 2 (6) and (7)
of the Act, and it will effectuate the purposes of the
Act to assert jurisdiction herein.
2. United Brotherhood of Carpenters and Joiners
of America , Local Union 751, AFL-CIO, is, and at all
times material herein has been , a labor organization
within the meaning of Section 2(5) of the Act.
3. By inducing and encouraging individuals em-
ployed in industries affecting commerce to engage in
a work stoppage or to refuse in the course of their
employment to handle or use materials, and to per-
form services , with an object of forcing or requiring
Associated Medical Builders , Inc., ar4i other persons
engaged in commerce or in industries affecting com-
merce to cease using , handling, or otherwise dealing
in products of, or to cease doing business with Imperi-
al Cabinet Shop , Respondent has engaged in unfair
9 to go ahead and install the cabinets with union carpenters and he would
try to resolve the problem with Imperial later Clearly, the only remaining
problem with Imperial after April 18 and on May 9 involved the fact that
the Imperial cabinets were manufactured under nonunion circumstances.
labor practices affecting commerce within the mean-
ing of Sections 8(b)(4)(i)(B) and 2(6) and (7) of the
Act.
4. By threatening, coercing, and restraining AMB
to cease doing business with Imperial Cabinet Shop,
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Sections
8(b)(4)(ii)(B) and 2(6) and (7) of the Act.
5. At all times material, James Lombard has been
a supervisor within the meaning of Section 2(11) of
the Act and is a representative of the Employer for the
purposes, among others, of adjusting grievances with-
in the meaning of Section 8(b)(1)(B) of the Act.
6. By summoning James Lombard to appear be-
fore Respondent's Executive Board and there ques-
tioning him about the installation of the nonunion
cabinets, Respondent restrained and coerced the Em-
ployer in the selection and retention of its representa-
tive for the purpose of collective bargaining or the
adjustment of grievances, and thereby has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(b)(1)(B) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
Having found that the Respondent has engaged in
unfair labor practices in violation of the Act, we shall
issue an Order designed to effectuate the policies of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board hereby orders that the Respondent, Unit-
ed Brotherhood of Carpenters and Joiners of
America , Local Union 751, AFL-CIO, Santa Rosa,
California , its officers , agents, and representatives,
shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging any
individual employed by Associated Medical Builders,
Inc., or by any other person engaged in commerce or
industry affecting commerce , to engage in a work
stoppage or to refuse in the course of his employment
to perform any services; and from threatening, coerc-
ing, or restraining the above -named Employer or any
other person where , in either case , an object thereof
is to force or require the above-named Employer, or
any other person , to cease doing business with Paul J.
Ortega and Melvin T. Azevedo, d/b/a Imperial Cabi-
net Shop.
(b) Restraining and coercing the Employer, Asso-
ciated Medical Builders , Inc., in the selection of its
representatives for the purposes of collective bargain-
CARPENTERS LOCAL 751
ing or adjustment of grievances.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix." I
Copies of said notice, on forms provided by the Re-
gional Director for Region 20, after being duly signed
by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(b) Furnish said Regional Director for Region 20
signed copies of the aforesaid notice for posting by the
above-named companies, these companies willing, at
places where they customarily post notices to their
employees.
(c)Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
8 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT engage in a work stoppage, or
induce or encourage any individual employed by
Associated Medical Builders, Inc., or an other
person engaged in commerce, or in an industry
affecting commerce, to engage in a work stop-
page or a refusal in the course of his employment
to perform any services; nor will we threaten,
coerce, or restrain the above-named Employer,
or any other person, where in either case, an ob-
ject thereof is to force or require the above-
named Employer, or any other person, to cease
doing business with Paul J. Ortega and Melvin T.
Azevedo, d/b/a Imperial Cabinet Shop.
WE WILL NOT in any manner restrain or coerce
Associated Medical Builders, Inc., in the selec-
tion of representatives chosen by it for the pur-
1105
pose of collective bargaining or adjustment of
grievances.
Dated By
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF
AMERICA , LOCAL UNION
751, AFL-CIO
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, Box 36047,
450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-3197.
DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Administrative Law Judge: These con-
solidated cases were heard before me on August 22, 1972,
at Santa Rosa, California, pursuant to a consolidated com-
plaint issued on June 1, 1972.1 The complaint alleged in
substance that Respondent Union 2 violated Section
8(b)(4)(i) and (H)(B) by threatening AMB 3 with a work
stoppage if AMB did not cease employing Imperial4 em-
ployees for the installation of cabinets manufactured by
Imperial or if it continued to install such cabinets, and that
Respondent Union on at least two occasions induced or
encouraged individuals employed by AMB to refuse to in-
stall such cabinets. The consolidated complaint further al-
leged that Respondent Union violated Section 8(b)(1)(B) of
the Act by ordering one of its members to appear before its
Executive Board for the purpose of hearing a charge filed
against him with regard to his conduct as a supervisor and
representative of AMB. Respondent Union while admitting
certain allegations of the consolidated complaint denied
that it had engaged in any unfair labor practices within the
meaning of the Act.
1 The charges were filed on behalf of Imperial Cabinet Shop Case 20-
CC-1235 was filed on May 9, 1972, and served on Respondent Union on the
next day, Case 20-CB-2666 was filed on May 26, 1972, and served on
Respondent Union on the next day
2 United Brotherhood of Carpenters and Joiners of America, Local Union
751, AFL-CIO
7 Associated Medical Builders
Paul J Ortega and Melvin T Azevedo, d/b/a Imperial Cabinet Shop
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
I JURISDICTIONAL FACTS
Imperial has its principal place of business at Clearlake
Highlands , California , where it is engaged in the manufac-
ture and sale of wood cabinets and formica tops. During the
past calendar year, it has sold merchandise exceeding
$50,000 in value to Broughton & Home Builders of Mill
Valley, California, Kaehler Timmer Development Compa-
ny, Inc., of Novato, California, and Horst Hanf General
Contractor of San Rafael, California, each of whom has in
the past calendar year purchased goods valued in excess of
$10,000 from points outside the State of California and each
of whom has had sales exceeding $500,000 during the past
calendar year.
I find that each of the above-named enterprises is en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act and that it would effectuate the purposes of
the Act to assert jurisdiction herein.
11 THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Respondent Union is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On about August 24, 1971, AMB, a newly formed enter-
prise, commenced operations as the general contractor in
the construction of a project known as the Creekside Medi-
cal Plaza at 95 Montgomery Drive, Santa Rosa , California.
About the time AMB commenced its operations it became
a party to the Carpenters Agreement for the 46 northern
California counties .5 This agreement by its terms effective
from June 15, 1971, until June 15, 1974, provides in Section
11 as follows:
SECTION 11. CONTRACTING AND
SUBCONTRACTING
B. On residential wood frame construction, all work
covered by this Agreement shall be performed by the
prime contractor direct with carpenters on the payroll
of the prime contractor on a straight per diem basis,
and no such work shall be subcontracted to any other
contractor except the installation of foundations, over-
head garage doors, plastic sink tops, hardwood floors,
roof and exterior wall shingles and traditional and nor-
mal drywall.
5 Resp. Exh I
C. For purposes of interpreting this Section, only
one contractor shall be recognized as the prime con-
tractor and 'he or it shall be the person, firm or corpora-
tion which is properly licensed under the State
Contractors License Law. The prime contractor shall
provide all materials and the prime contractor shall
employ all employees covered by this agreement who
shall be shown on his or its payroll records except as
provided herein. The prime contractor shall,be respon-
sible for and shall directly employ employees covered
by this Agreement to perform all work in connection
with the construction of all walls and roof framing,
installation of all subflooring, all exterior sheathing,
installation of all metal and wood sash and doors, in-
stallation of all interior trim, installation of all types of
cabinets, wardrobes and sliding doors.
D. The payment of excessive premium rates, exces-
sive travel time, or bonuses shall be prima facie evi-
dence of an attempt to violate the provisions of this
Section.
E. The Union will refuse workmen to any individual
employer who violates the provisions of this Section,
and such refusal shall not constitute a violation of this
Agreement.
F. The terms and conditions of this Agreement inso-
far as it affects an individual employer shall apply to
any subcontractor, or his subcontractors, providing
services for or working under contract with such an
individual employer upon work 'covered by this Agree-
ment and such subcontractor, or his subcontractors,
with respect to such work shall be considered as an
individual employer subject to all of the terms of this
Agreement. The remedies for default hereunder shall
apply directly to the subcontractor, or his subcontrac-
tors.
H. The provisions of this Section shall be operative
to the extent permitted by law, and should any final
determination of any board or court of ,competent ju-
risdiction affect the validity of such provisions, the Em-
ployer and the Union shall meet within ten days of such
final determination solely for the purpose of renegoti-
ating this Section to meet any objections to the validity
of the provisions raised by such determination.
1. To the extent permitted by law, the individual
employer will not require carpenters to handle non-
union fabricated materials.
B. The Evidence
Paul J. Ortega, an owner-partner of Imperial, testified
that Imperial employs about 18 persons; that it has no
collective-bargaining agreements; that a person known to
them as Joe Keefer, one of Respondent Union's representa-
tive, had contacted him sometime in January 1972,8 suggest-
ing that the shop should be organized and a contract signed;
6 Hereafter all dates will refer to the year 1972 unless otherwise specified.
CARPENTERS LOCAL 751
that he declined to enter into such an agreement because
Respondent Union did not represent a majority; that prior
to that time this representative had contacted him with the
same proposition on several other occasions ; that Imperial
supplied the cabinets and formica tops for the AMB medi-
cal center project; that Imperial employees on April 18 had
delivered and were installing cabinets at the project; that his
partner, Melvin Azevedo, called him on the telephone on
that day and told him that Respondent Union had threat-
ened to picket the medical center unless Imperial employees
were taken off the job; 7 that he told Azevedo to take Impe-
rial employees off the job; that in the evening he contacted
Jones; that Jones and he agreed that thereafter AMB
would install the cabinets and deduct the installation costs
from the agreed price for the cabinets and tops.
On cross-examination, Ortega testified that AMB was the
first contractor to whom cabinets were sold with the price
of installation included ; that this was arranged about the
latter part of 1971, just about the last time Keefer, the union
representative, came to see him; that the AMB project was
the first to which Imperial sent an installer to ajobsite; that
April 18 was the third time Imperial installers were at the
AMB jobsite; that Imperial cabinets continued to be in-
stalled on the job after April 18, but not by Imperial em-
ployees; that all cabinets sold to AMB have been installed;
that at no time was Imperial informed that AMB would not
purchase its cabinets ; that carpenters employed by AMB
are currently doing the cabinet and formica top installa-
tions; that after April 18 there was no time lost in the
installation and the job progressed "fairly normal."
Russell L. Jones, AMB's vice president in charge of con-
struction, testified that AMB was the general contractor at
the medical center project and subcontracted most of the
work for each trade; that it subcontracted the cabinets to
Imperial ; that in April, AMB employed five or six carpen-
ters and one laborer at the jobsite; that the "working super-
intendent" 9 was Jim Lombard; that Lombard had full
authority to hire or fire personnel as needed by the schedul-
ing of work ; that men are hired after discussion between
Lombard and himself by calling Respondent Union or the
laborers local; that Lombard was known to him to be a
member of Respondent Union; that Imperial had installed
some cabinets in March; that on April 18, about 9:30 a.m.,
Lombard introduced Frank Morobito and Carl Mainert to
him; that Morobito was introduced as the secretary-treasur-
er of Respondent Union and Mainert as a member; that
Morobito said that Jones had a problem on the job; that
upon inquiring what was the problem, Morobito said that
AMB was using nonunion cabinets and nonunion employ-
ees to install the cabinets; that Jones replied that he was not
aware Imperial was nonunion and asked for a couple of
hours so that he could contact Imperial to see what he could
do to correct the problem; that Jones requested the delay
because Morobito told him that he had to remove the non-
7 After this testimony was elicited , counsel for Respondent Union moved
to strike the answer . The motion was granted I now reverse my order to strike
and admit the statements for background purposes only.8 Russel L . Jones, AMB's job superintendent.
9 I find that Lombard was a working foreman and a supervisor within the
meaning of the Act.
1107
union men or Morobito would remove the union men from
the job; that Morobito agreed to give Jones a delay saying
he would return after lunch; that Jones then called Azeve-
do; that later Ortega called him back and told him to tell
the Imperial men to take their tools and go home; that Jones
then informed the two Imperial employees what Ortega had
said and they packed their tools and departed; that about
1:30 p.m., he met Morobito at thejobsite and informed him
the Imperial employees had been removed; that Morobito
replied "okay"; that about 5 p.m., Ortega, Jack W. War-
ren 10 and Jones held a conference and agreed that thereaf-
ter union carpenters would be employed to install cabinets
at the medical center; that he informed Lombard of the
decision on the following morning; that Lombard thereafter
had union carpenters employed by AMB perform the instal-
lation work on cabinets and formica tops at the jobsite.
Jones further testified that Lombard informed him about
May 2 that he had been cited by Respondent Union for
employing nonunion carpenters and installing nonunion
material; that MacKenzie, a business agent employed by
Respondent Union, conferred with him and Warren on
May 9; that MacKenzie said that inasmuch as Ortega was
out of the country at that time, AMB could go ahead and
install the cabinets with union carpenters and he would try
to resolve the problem with Ortega when he returned. On
cross-examination , Jones conceded that no official of Re-
spondent Union had ever told him that Imperial cabinets
could not be installed by union carpenters; that he received
that impression from his conversation with Lombard con-
cerning Lombard's citation by Respondent Union; that he
was informed that Lombard, after he was cited, refused to
permit any of his men to install Imperial cabinets; that he,
himself, had never asked any of the men to install the cabi-
nets ; that he considered this to be Lombard's decision to
make ; that Lombard generally works with the tools of his
trade and resolves minor problems among the men mainly
with reference to jurisdiction; that major problems and
those concerning collective bargaining are handled by
Jones ; that the number of men needed is determined by
Jones and that Jones determines when employees are to be
laid off.
James L. Lombard, called by the General Counsel, testi-
fied that he has been employed by AMB as a foreman for
about 1 year; that he has been a member of Local 751 for
the past II years; that Russel Jones is his superior; that he
hires men through the hiring hall; that on April 18 Morobito
and Mainert visited the jobsite; that he took them in to see
Jones after he was told by Morobito that there was a prob-
lem on the job in that nonunion cabinets were being in-
stalled by nonunion employees; t t that he received a letter
from Respondent Union about April 27,12 requesting that
he appear before the Executive Board of Respondent Union
on May 2; that Lombard complied and appeared before the
"heads" 13 of the locals; that he was asked if he knew wheth-
er the cabinets were of union manufacture; that he said he
did not know; that at a later date he made another appear-
10 President of AMB
11 This particular statement appears in Lombard's affidavit.
1z G.C. Exh 3
131 assume this refers to members of the Executive Board embracing
officers of the local
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance before the same board; that he was not fined or pun-
ished in any way; that he did call Jones when he was cited
and told Jones he would not install the next group of cabi-
nets when they arrived; that all cabinets at the jobsite were
installed; that there was no holdup or delay in the installa-
tion of cabinets; that MacKenzie told him on May 9 that
it was OK to install the cabinets.
On examination by counsel for Respondent Union, Lom-
bard said that no one at the Executive Board meeting told
him not to handle the Imperial cabinets; that he was not
told that charges would be brought against him for handling
the cabinets; that the Executive Board asked him why non-
union employees were installing the cabinets; that he re-
plied that he did not realize the installers were not union;
that he was told that it was his obligation to make sure that
the installation work was done by union employees under
his direction; that Jones gave him no orders or directions to
install cabinets; that whatever cabinets at the jobsite not
installed between May 2 and May 9 was due to the fact that
other work had priority. Lombard concluded his testimonial
account by stating that he has been employed in the area
since 1963 and it has been his observation that all cabinet
installations are performed by union carpenters whether
employed by the cabinet manufacturer or the carpenter
contractor at the jobsite.
Frank Morobito, a witness called by Respondent Union,
testified that he was the financial secretary-treasurer of Re-
spondent Union and assistant business agent. Morobito tes-
tified that he had never told Lombard not to handle
Imperial cabinets; 14 that most cabinet work in the area was
done by the general contractor by hiring carpenters and
placing them on his payroll; that occasionally when a spe-
cial cabinet is required, as in schools, a subcontractor will
come in but will hire carpenters through Respondent
Union; that in his opinion all work performed at the jobsite
must conform to the wages and conditions established by
the master agreement; that he was present part of the time
when Lombard appeared before the Union Executive
Board; the he heard no one instruct Lombard to refuse to
handle Imperial cabinets at that time or any other time; and
that Lombard was not fined or penalized in any way.
On cross-examination Morobito insisted that he objected
to Imperial employees working at the jobsite because it was
a violation of the agreement. Morobito also testified that the
notice to show cause was a preliminary step to discover
whether charges should be filed before the District Council;
that failure of the individual to show up may result in
charges being filed and a hearing held before the District
Council; that if the individual pleaded guilty to the charges,
the District Council could assess fines in accordance with
provisions of the constitution. In concluding his testimonial
account, Morobito conceded that he advised Jones that
Imperial cabinets were nonunion and that the installers
were nonunion; and that in his view the order to show cause
served on Lombard included the question whether the cabi-
nets were of nonunion manufacture. Morobito also agreed
that he did not know the wage scale or working conditions
under which Imperial installers were employed at the job-
141 credit Morobito in this regard Lombard's contrary statement is not
credited.
site, but he did know that Imperial was not a signatory to
the agreement and made no contributions to the health and
welfare trust fund.
Analysis and Conclusions
1. 8(b)(4)(i) and (ii)(B) allegations
The consolidated complaint alleges in paragraph VII(a)
that Respondent Union, through Morobito, threatened an
official of AMB with a work stoppage if AMB did not cease
to use employees of Imperial to install cabinets manufac-
tured by Imperial and/or if AMB attempted to install cabi-
nets manufactured by Imperial. The consolidated
complaint also alleges that Respondent Union induced or
encouraged individuals employed by AMB to refuse in the
course of their employment to install cabinets manufac-
tured by Imperial. It is further alleged that in paragraph
VIII that an object of the aforementioned conduct was to
force or require AMB to cease doing business with Imperial.
I conclude that the General Counsel has failed to estab-
lish by a preponderance of the evidence, as required by law,
that Respondent Union has engaged in the conduct de-
scribed above for the purposes alleged in paragraph VIII.
It seems abundantly plain that Respondent Union's Rep-
resentative Morobito sought to enforce the perfectly legal
clauses 15 of its agreement with AMB which required main-
tenance of wages and working conditions for work per-
formed at the jobsite. Despite minor contradictions in
Morobito's testimonial account, induced in part by the
wording of certain questions, I am convinced that enforce-
ment of the master agreement was the sole consideration
and purpose of his visit to the jobsite. I find that there was
no attempt by Morobito or any other representative of Re-
spondent Union to prohibit or to unlawfully induce AMB
to desist from using Imperial cabinets. Certainly in a con-
versation concerning the breach of the contract by Imperial
installers, there was mention of the fact that the cabinets
were manufactured under nonunion conditions. However,
this was clearly incidental to the discussion concerning the
installation of the cabinets by installers not employed by
AMB. Accordingly, I draw no adverse inferences against
Respondent Union from the fact that the nonunion charac-
ter of Imperial cabinets may have been referred to by union
representatives. Moreover, Lombard credibly testified that
the installation of Imperial cabinets was not delayed at any
time because they were manufactured under nonunion con-
ditions.
General Counsel's reliance upon San Francisco-Oakland
Mailers' Union No. 18 ITU (Northwest Publications), 172
NLRB 2173, is misplaced. In the ITU case there was specif-
ic agreement with regard to the handling of grievances
against supervisors. Additionally, the union in the ITU case
levied fines against individuals employed in a supervisory
capacity. Finally, the Board in the ITU case found that the
citations issued were not for investigative purposes, whereas
in the instant case it is clear that the notice to show cause,
15 The Board and the Courts have recognized the legality of subcontracting
clauses in labor agreements designed to preserve union standards . Cf. Brown
Transport Corp and Patton Warehouse, 334 F.2d 539 (C.A.D C., 1964). See
also National Woodwork Manufacturers Association, 386 U.S 612 (1967).
CARPENTERS LOCAL 751
as the proceedings demonstrated, was purely investigative
in nature . Accordingly, I find that this allegation has not
been proven by a preponderance of the evidence. Under the
foregoing circumstances I shall recommend the dismissal of
the 8(b)(4)(i) and ( ii)(B) allegations of the consolidated com-
plaint.
2. 8(b)(1)(B ) allegations
The consolidated complaint alleges that Respondent
Union issued a written notice 16 to Lombard to appear be-
fore its Executive Board "for the purpose of allowing it to
hear a charge filed against him for his conduct as a supervi-
sor and representative of AMB."
The evidence is contrary to the allegation in that it shows
that Lombard was cited to appear to show cause why
16 G.C. Exh 3.
1109
charges should not be preferred. While it is true than an
order to show cause is more than a request for information,
nevertheless it does not constitute a charge. While it is true
that the citation created some apprehension in Lombard,
nevertheless it appears that no action was taken agairst
Lombard and there was no interference with his duties aid
obligations to his employers. I find that Respondent Union
did not engage in a violation of the Act with reference to
its issuance of the notice to show cause to Lombard.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Union has not engaged in conduct viola-
tive of Section 8(b)(4)(i) and (ii)(B) of the Act.
2. Respondent Union has not engaged in conduct viola-
tive of Section 8(b)(1)(B) of the Act.
[Recommended Order omitted from publication.]