District Council No. 19 and Local 334, Etc.

National Labor Relations Board - Board Decisions

Jun 20, 1962

137 N.L.R.B. 682 (N.L.R.B. 1962)

682 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Waldemar Haug, Respondent's vice president, testified without con-
tradiction that the boiler department does not have a department chief
and that the employees in the boiler department receive instructions
from him, his brother, who is president of the Company, and Tony
Calabrese, the plant superintendent. According to Moran's testimony,
the employees in the department make repairs on their own initiative,
and when necessary, ask other employees in the department to help
'them perform jobs requiring more than one man. When Superintend-
ent Calabrese wishes to have a specific job done, he sends a message to
the boiler department and whoever is there to receive the message will
carry out the order. The record shows Moran receives a weekly salary
of $225, but the record does not indicate how Moran's salary com-
pares with the' salary of the next highest' salaried employee in the
department.
There is no evidence in the record to support a finding that Moran
has the authority to hire or discharge employees or effectively recom-
mend the same. Nor is it established that Moran responsibly directs
employees. Therefore, as the record does'not establish that Moran
possesses the statutory'indicia of supervisory authority, we affirm the
Trial Examiner's ruling that the complaint be dismissed.3
[The Board dismissed the complaint.]
MEMBER LEEDOM took no part in the consideration of the above Sup-
plemental Decision and Order.
a Cf. Nassau and Suffolk Contractors' Association, Inc., and its Members, 118 NLRB
174, 181-184.
District Council No. 19 and Local 334, Brotherhood of Painters,
Decorators and Paperhangers of America and Frank D. Fabian
and William B. G. Pitman Co., Inc.; George Simmons t/a
Simmons and Ruiter ; and Other Employers . Case No. 22-CB-
361. June 20, 1962
DECISION AND ORDER
On February 15, 1962, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondents had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief and the Respondents filed a brief in
reply.
137 NLRB No. 69.
DISTRICT COUNCIL NO. 19 AND LOCAL 334, ETC. 683
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
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 briefs, and the entire record in
the case, and hereby adopts the findings and conclusions of the Trial
Examiner, only insofar as they are consistent with the Decision and
Order.
On or about September 13, 1960, the Respondents entered into
collective-bargaining agreements effective from about May 1, 1960, to
about April 30, 1963, with Pitman, Simmons, and approximately 60
other employers, all of whom are engaged in the construction industry
in the Bergen County, Paterson, and Passaic areas of New Jersey.
These agreements have a union-security clause requiring union mem-
bership after 7 days of employment, and establish exclusive hiring
halls to be maintained by the Respondents for the purpose of supply-
ing the employers with painters. The agreements also contain the
following provision :
Article III, Section 3.7 (g). Anything to the contrary herein
notwithstanding, any employee who has at any time registered at
any Union Hiring Hall and who thereafter :
(3) works at the trade in an area not covered by this Agree-
ment for an Employer who is not signatory or who has not ac-
cepted and is not abiding by a Collective Bargaining Agreement
with a Trade Union covering said employment, shall thereafter
be denied the use of the Hiring Hall for a period of one (1) year.
There is no evidence that any employee has ever been denied use of
the hiring hall for failure to comply with the requirements of the
foregoing contractual provisions. Similarly there is no showing that
any employer ever violated its provisions. However, the Respondents'
special notification to the employees concerning its provisions 1 clearly
establishes that, at all times material , section 3.7(g) was in effect.
In finding no violation of Section 8(b) (1) (A) in the maintenance
and enforcement of section 3.7(g) (3) of the agreements, the Trial
I On October 6, 1960, the Respondents sent a letter to all union members and posted
copies of the letter at the District Council's office and meeting hall at the Passaic,
Hackensack , and Paterson hiring halls of the District Council, as well as at the respective
locals operating those hiring halls. In this letter the Respondents explained the opera-
tion of their hiring halls and stated , "You will be denied the use of the Hiring Hall for
a period of one year if you work at the trade in the manner set forth in Section 3.7(g) (1)
or (2) or ( 3) of the Union Agreement."
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner relied, in part, upon article II, section 2.3,2 of the agreement
which provides there shall be no discrimination against "new em-
ployees" either in hiring or referral "because of membership or non-
membership in the Union ." He also appears to accept the Respondent's
position that under Local 357, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America (Los
Angeles-Seattle Motor Express) v. N.L.R.B.,2 there can be no violation
absent a showing of actual discrimination designed to encourage or
discourage union membership or activities. We are unable to agree
with the Trial Examiner. Thus, section 3.7(g) (3), apart from any
other consideration, applies to already registered employees and not
to new employees as does article II, section 2.3. Secondly, the critical
issue does not involve hiring practices alleged to be unlawful under
Section 8(a) (3) and 8(b) (2) of the Act. Rather it is whether section
3.7(g) (3) unlawfully restrains and coerces employees in the exercise
of their Section 7 rights to engage in, or refrain from engaging in,
union activities, by barring previously registered employees from the
use of the hiring hall for a period of 1 year, if they work under non-
union conditions outside the area covered by the Respondents' agree-
ments. To state the issue is to answer it. For, the penalty of relin-
quishment of the right by registered employees to have access to the
hiring hall should they work under nonunion conditions outside the
area inevitably serves as a restraint upon their right under the Act
to engage or not to engage in union activities for the duration of the
agreements. Under such circumstances the fact that the sanction of
section 3.7 (g) (3) has never been enforced against any employees does
not preclude the finding of a violation, for it is the restraining and
coercive effect of the 1-year sanction, which is tantamount to a threat
of loss of employment opportunity in the contract area, that contra-
venes the Act. In fact, the need or opportunity to impose the sanction
prescribed by the provision would diminish in direct proportion to
the effectiveness of the unlawful threat.
Consequently, we find, contrary to the Trial Examiner, that Re-
spondents by maintaining section 3.7(g) (3) in their agreements have
been and are violating Section 8(b) (1) (A) of the Act.
CONCLUSIONS OF LAW
The Board upon the basis of the foregoing facts and the entire
record, concludes as follows :
1. William B. G. Pitman Co., Inc., and George Simmons t/a Sim-
mons and Ruiters, are employers within the meaning of Section 2(2)
2 The Trial Examiner 's citation of this provision as article II, subsection ( 3), is an
inadvertence because there is no subsection 3 under the article.
8 365 U. S. 567.
DISTRICT COUNCIL NO . 19 AND LOCAL 334 , ETC. 685
of the Act and are engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District Council No. 19 and Local 334, Brotherhood of Painters,
Decorators and Paperhangers of America, are labor organizations
within the meaning of Section 2 (5) of the Act.
3. By including and maintaining in effect a contract provision which
denies the use of the hiring hall for a period of 1 year to any em-
ployee who works at the trade, in an area not covered by Respondents'
agreement, for an employer who is not signatory to or who had not
accepted and is not abiding by a collective -bargaining agreement with
a trade union covering such employment, Respondents have engaged
in and are engaging in unfair labor practices in violation of Section
8(b) (1) (A) of the Act.
4. The activities of Respondents set forth above, occurring in con-
nection with the operations of the employers hereinabove described,
have a close , intimate , and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce
within the meaning of Section 2 ( 6) and ( 7) of the Act.
THE REMEDY
As we have found that the Respondents have engaged in unfair
labor practices in violation of Section 8 (b) (1) (A ) of the Act, we shall
order that they cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act . Nothing in our order
shall be deemed to set aside the existing collective -bargaining agree-
ment between Respondent and employers nor to affect any provision
thereof other than the one found above to be unlawful.
ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended the National Labor
Relations Board hereby orders that Respondents , District Council No.
19 and Local 334, Brotherhood of Painters , Decorators and Paper-
hangers of America , their officers, agents, successors , and assigns, shall :
1. Cease and desist from :
(a) Including and maintaining in effect in collective -bargaining
agreements with William B. G. Pitman Co., Inc. ; George Simmons
t/a Simmons and Ruiter; and any other employers with whom Re-
spondents have collective -bargaining agreements , any provision which
denies the use of the hiring hall , permanently or temporarily, to any
employee who works at the trade, in an area not covered by Respond-
ents' agreements, for any employer who is not signatory to or who has
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not accepted and is not abiding by a collective-bargaining agreement
with a trade union covering such employment.
(b) Notifying employees and members that they will be denied the
use of the hiring hall for failure to comply with the provision referred
to above.
(c) In any like or related manner restraining or coercing employees
of William B. G. Pitman Co., Inc.; George Simmons t/a Simmons
and Ruiter; or any other employer, in the exercise of their right to
self-organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing, to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid and protection, and to refrain from any
and all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their offices, meeting halls, and hiring halls, copies of
the notice attached hereto marked "Appendix." 4 Copies of said notice,
to be furnished by the Regional Director for the Twenty-Second Re-
gion, shall, after being duly signed by the Respondents' authorized
representatives, be posted by the Respondents immediately upon re-
ceipt thereof, and be maintained by them for 60 consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees and members are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that such notices are not altered,.
defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-second Region,.
in writing, within 10 days from the date of this Order, what steps
they have taken to comply herewith.
4In the event that this Order is enforced by a decree of a United States Court of-
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the-
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF DISTRICT COUNCIL No. 19 AND LOCAL_
334, BROTHERHOOD OF PAINTERS , DECORATORS AND PAPERHANGERS.
OF AMERICA
Pursuant to a Decision and Order of the National Labor Relations.
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby give notice that :
DISTRICT COUNCIL NO. 19 AND LOCAL 334, ETC. 687
WE WILL NOT include and maintain in our collective-bargaining
agreements with William B. G. Pitman Co., Inc.; George Sim-
mons t/a Simmons and Ruiter; or any other employer, any provi-
sion which denies the use of the hiring hall, permanently or
temporarily, to any employee who works at the trade, in an area
not covered by the above-mentioned agreement, for an employer
who is not signatory, or who has not accepted and is not abiding by
a collective -bargaining agreement with a Trade Union covering
such employment.
WE WILL NOT notify employees and members that they will be
denied the use of the hiring hall for failure to comply with the
provision referred to above.
WE WILL NOT in any like or similar manner restrain or coerce
employees of William B. G. Pitman Co., Inc. ; George Simmons
t/a Simmons and Ruiter; or any other employer, in the exercise
of their right to self-organization, to form, join, or assist labor
organizations , to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid and protection,
and to refrain from any and all such activities, except to the ex-
tent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
DISTRICT COUNCIL No. 19 AND LoCAL 334,
BROTHERHOOD OF PAINTERS, DECORATORS
AND PAPERHANGERS OF AMERICA,
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.
Employees may communicate directly with the Board' s Regional
Office, 704 Broad Street, Newark 2, New Jersey, Telephone Number,
Market 4-6151, if they have any question concerning this notice or com-
pliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, initiated by a charge filed on March 13, 1961, by Frank D.
Fabian , an individual , involves allegations that District Council No . 19 and Local
334, Brotherhood of Painters , Decorators and Paperhangers of America , herein
jointly called the Respondents , violated Section 8(b) (1) (A) of the National Labor
Relations Act, as amended . A hearing before Trial Examiner John H. Eadie was
held at Newark , New Jersey , on September 21, 1961 . At the close of the hearing
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents presented oral argument on the record. After the conclusion of the
hearing the General Counsel and,the Respondents filed briefs with the Trial Examiner.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
William B. G. Pitman Co., Inc., is a New Jersey corporation with its principal
office and place of business in the city of Hackensack, where it is engaged, and at
various other places of business in the States of New Jersey, New York, and Con-
necticut, in the business of providing and performing painting and related services.
During the year prior to July 20, 1961, the date of the complaint herein, Pitman
performed services valued at in excess of $50,000, of which services valued at in ex-
cess of $50,000 were performed in States other than the State of New Jersey.
George Simmons, a private individual doing business under the name and style
of Simmons and Ruiter, has his principal office and place of business in the city of
Paterson , New Jersey . He is engaged at said place of business , and at various other
places of business in the State of New Jersey, in the business of providing and per-
forming painting and related services. During the year prior to the date of the
complaint herein, Simmons performed services valued at in excess of $50,000, of
which services valued at in excess of $1,000 were furnished, inter alia, The Great
Atlantic and Pacific Tea Company, a retail enterprise whose gross annual revenue
is in excess of $500,000 and which purchases annually produce and other goods
valued at in excess of $50,000 which are shipped to its stores across State lines in
interstate commerce.
The complaint alleges, the Respondents' answer, as amended , admits, and the Trial
Examiner finds that Pitman and Simmons each is, and has been at all times mate-
rial herein, engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
District Council No. 19 and Local 334, Brotherhood of Painters, Decorators and
Paperhangers of America, are labor organizations within the meaning of Section
2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Since on or about September 13, 1960, the Respondents have maintained in
effect and enforced collective -bargaining agreements , effective from on or about
May 1, 1960, to on or about April 30, 1963, with approximately 60 employers, in-
cluding Pitman and Simmons , who are engaged in the construction industry in the
Bergen County, Paterson , and Passaic areas of New Jersey. These agreements pro-
vide for compulsory union membership after 7 days of employment and establish
exclusive hiring halls to be maintained by the Respondents for the purpose of supply-
ing the employers with painters . The agreements contain the following provisions:
Article III, Section 3.7(g). Anything to the contrary herein notwithstanding,
any employee who has at any time registered at any Union Hiring Hall and who
thereafter:
(1) works at the trade and in the area covered by this Agreement without
receiving the full rate of pay and all other benefits herein provided; or
(2) works at the trade and in the area covered by this Agreement for an
Employer who is not signatory .to this Agreement or for an Employer who has
not accepted this Agreement and who is not fully complying with all the terms
hereunder; or
(3) works at the trade in an area not covered by this Agreement for an
Employer who is not signatory or who has not accepted and is not abiding by a
Collective Bargaining Agreement with a Trade Union coverdng said employ-
ment, Shall thereafter be denied the use of the Hiring Hall for a period of one
(1) year.
On or about October 6 , 1960, the Respondents sent a letter to all union mem-
bers, advising them that the above -quoted provisions were contained in the collective-
bargaining agreements with the area employers . Copies of this letter also were posted
DISTRICT COUNCIL NO. 19 AND LOCAL 334, ETC. 689
"at the District Council's office and meeting hall, and at the Passaic, Hackensack
and Paterson Hiring Halls of the District Council, and the particular local operating
those hire halls "
Joseph T. Iacone, a painting and building contractor and one of the employers
mentioned herein, testified credibly and without contradiction that during the 1960
negotiations with the Respondents he as "chairman" represented "all the painting
contractors of Bergen-Passaic County" and as such signed the resulting collective-
bargaining agreement; that during the negotiations "we' requested language such as
that contained in paragraph 3.7(g) of article III of the collective-bargaining agree-
ment; and that the employers stated at the time the reason why they wanted such
language was "to maintain an established way of negotiating for other contractors
that would come into the area, or other people that would come into the area, a
stabilized situation whereby someone weren't allowed to get a lesser rate or better
working conditions than we normally had to fulfill ourselves and comply with."
The General Counsel does not contend, nor was any evidence adduced to establish,
that the Respondents barred any applicant for employment from use of the hiring
halls, pursuant to the contractual provisions in question. Nor does the General
Counsel contend that subsections (1) and (2) of article III, section 3 7(g), which
concern employment within the area covered by the agreements, are violative of the
Act. He does contend, however, that per se "Subsection (3) which extends the
prohibition and consequent penalty to areas not covered by the agreements infringes
upon the rights guaranteed in Section 7 of the Act and thereby violates Section
8(b)(1)(A) of the Act." In this connection the General Counsel points out that
Section 7 of the Act "preserves to an employee the right to refrain from self-
organization of collective bargaining through a representative and the right to
decide, who, if anyone, should represent him"; and argues that subsection 3, by
threatening the loss of employment opportunities if an employee elects to refrain
from engaging in collective bargaining through a labor organization, unlawfully
restrains employees in the exercise of such rights.
The Respondents contend that ". . . in order to establish a violation, it must be
shown, first, that actual discrimination was practiced, and second, that the discrimina-
tion stemmed from the motive of encouraging or discouraging membership in the
union, or union activities. Subparagraph (3) of Section 3.7(g) has no relation at
all to such a motive. It is obviously designed to preserve the standards of wages and
conditions established, in this instance, not by the respondent union, but by one of
its sister locals. It is obvious that both the Employers, who are painting contractors
not limited to the territorial jurisdiction of the union, and the Union are directly
and substantially interested in the maintenance of standards not only within the
territorial jurisdictions of the local union, but wherever the Employers may have
jobs and wherever the members of the local union or the district council work."
As evidence of this the Respondent points to section 1.2 of the collective-bargaining
agreement, which provides in part as follows:
The Employers when engaged in work outside the geographical jurisdiction of
the union party to this agreement, shall comply with all of the lawful clauses
of the collective bargaining agreement in effect in said other geographical
jurisdiction and executed by the employers of the industry and the local unions
in that jurisdiction, including, but not limited to, the provisions of the wages,
hours, working conditions, and all fringe benefits therein provided.. . .
In support of its position the Respondents cite the opinion of the Supreme Court of
the United States in Local 357, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Los Angeles-Seattle Motor Express) v.
N.L.R.B., 365 U.S. 567.
In the instant case article II, subsection 3, of the collective-bargaining agreement
specifically provides that there will be no discrimination against "new employees"
either in the hiring by the employers or in the referral by the Respondents "because
of membership or non-membership in the Union." Under the circumstances, I do
not believe or find that subsection 3 of section 3.7(g) of the contract is per se
violative of the Act.'
RECOMMENDATION
It is recommended that the complaint be dismissed in its entirety.
1 Local 557, International Brotherhood of Teamsters, etc v. N L R B , supra.
(349856-63-vol. 13 7-4 5