Enterprise Association, Local 638, Etc.

National Labor Relations Board - Board Decisions

Nov 2, 1960

129 N.L.R.B. 555 (N.L.R.B. 1960)

ENTERPRISE ASSOCIATION, LOCAL 638, ETC. 555
Enterprise Association , Local 638, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Industry
,of the United States and Canada , AFL-CIO [Allen-Stevens
Corporation] and Jerry Bady, d/b/a Bomat Plumbing and
Heating. Case No. d-CC-549. November L, 1960
DECISION AND ORDER
On July 18, 1960, Trial Examiner Sidney Linder issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices and recom-
mending 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 Intermedi-
ate Report.
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
Jenkins and Fanning].
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 Intermedi-
ate Report, the exceptions, and the entire record in this case, and here-
by adopts the findings, conclusions, and recommendations of the Trial
Examiner.
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 the Respondent, Enterprise As-
sociation, Local 638, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO, its officers, agents, representatives, successors,
and assigns, shall:
1. Cease and desist from threatening, coercing, or restraining Allen-
Stevens Corporation or its officers, where an object thereof is to force
•or require Allen-Stevens Corporation or its officers to cease doing busi-
ness with Jerry Bady, d/b/a Bomat Plumbing and Heating..
2. Take the following affirmative action which the Board finds will
•effectuate the policies of the Act :
(a) Post in the Respondent Union's business offices and meeting
halls, copies of the notice attached hereto marked "Appendix A." 1
I In 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"
129 NLRB No. 63.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, to be furnished by the Regional Director for the
Second Region, shall, after being duly signed by the Respondent
Union's authorized representative, be posted by Respondent Union
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 to insure that such notices are not altered, defaced, or
covered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director for the Second Region for posting, Allen-Stevens Corpor-
ation and Bomat Plumbing and Heating willing, at all locations where
notices to their respective employees are customarily posted.
(c) Notify the Regional Director for the Second Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
APPENDIX A
NOTICE TO ALL MEMBERS OF ENTERPRISE ASSOCIATION, LOCAL 638,
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA, AFL-CIO, AND TO ALL EMPLOYEES OF ALLEN-STEVENS
CORPORATION AND BOMAT PLUMBING AND HEATING
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 threaten, coerce, or restrain Allen-Stevens Cor-
poration or its officers, with an object of forcing or requiring
Allen-Stevens Corporation or its officers to cease doing business
with Bomat Plumbing and Heating.
ENTERPRISE ASSOCIATION, LOCAL 638, UNITED
ASSOCIATION OF JOURNEYMEN AND APPREN-
TICES OF THE PLUMBING AND PIPEFITTING
INDUSTRY OF THE UNITED STATES AND CAN-
ADA, AFL-CIO,
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 RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding brought under Section 10 (b) of the National Labor Relations
Act, as amended , 61 Stat. 136, 73 Stat . 519, herein called the Act , was heard at
ENTERPRISE ASSOCIATION, LOCAL 638, ETC. 557
New York, New York, on April 25, 1960, pursuant to due notice, with all parties
represented by counsel. The complaint issued by the General Counsel dated
March 21, 1960, against Enterprise Association, Local 638, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, herein called Respondent Union, alleged that Respond-
ent Union has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act. More
specifically, the complaint alleged, inter alia, that on or about February 17, 1960,
the Respondent Union by its agent Thomas Brady, threatened , coerced, and
restrained Allen-Stevens Corporation, herein called Allen-Stevens, by threatening
to picket said employer and to cause its employees to strike and refuse to perform
services in the course of (their employment , with an object of forcing Allen-Stevens
to cease doing business with Jerry Bady, an individual proprietor , doing business
under the trade name and style of Bomat Plumbing and Heating, herein called
Bomat . In its answer Respondent Union generally denied this allegation.
Upon the entire record, and from my observation of all witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF ALLEN-STEVENS AND BOMAT
Allen-Stevens Corporation is a corporation duly organized under the laws of the
State of New York and at all times material herein maintained its principal office
and place of business at Woodside , New York, where it manufactures , sells, and
distributes diecastings and related products. During the past year Allen-Stevens,
in the course and conduct of its business operations , cause to be manufactured,
sold, and distributed at its place of business products valued at in excess of $1,000,000
of which products valued at in excess of $100,000 were sold and shipped by it in
interstate commerce directly to persons located in States of the United States
other than the State of New York.
Bomat, a plumbing and heating contractor , maintains its principal office and place
of business at Queens Village, New York, where it is engaged in providing and
performing plumbing contracting services and related services . During 1959 Bomat
caused to be purchased , transferred , and delivered to its place of business various
supplies valued at $70,000, of which goods and materials valued at in excess of
$50,000 were purchased by the suppliers from manufacturers located in States
other than New York. I find that Allen-Stevens and Bomat are engaged in com-
merce or in operations affecting commerce , within the meaning of the Act, and that
it will effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Enterprise Association , Local 638, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act, It is undisputed and I find, that at all times material herein , Thomas
Brady was business agent of the Respondent Union.
III. THE UNFAIR LABOR PRACTICES
On February 17, 1960 , Allen-Stevens was in the process of having certain reno-
vation work done in its plant and also constructing a new addition thereto.
The general contractor for the new construction was Lumbermen 's Construction
Corporation. Allen-Stevens selected and subcontracted individually with the elec-
trical , heating and air-conditioning , sprinkler , and elevator contractors. The
Dynaire Corporation , the contractor for heating and air-conditioning , in turn sub-
contracted with Bomat for the installation of the heating equipment in the new
construction . Allen-Stevens also contracted directly with Bomat to do renovation
work in its present plant. Unlike Allen-Stevens , ' and certain of the other contractors
and subcontractors at the jobsite , Bomat did not have a contract with any union
covering its employees . On February 17, two of Bomat 's employees were working
on the new construction at the Allen-Stevens jobsite.2 On that day, Thomas Brady,
business agent of Respondent Union , had three conversations with Albert Sanders
and Murray Sanders, president and treasurer , respectively , of Allen-Stevens. The
1 Allen-Stevens had a collective -bargaining agreement with District 15, International
Association of Machinists, covering all of its production and maintenance employees.
2 These men had been working on the job for several weeks prior to this date.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aforesaid findings are uncontroverted. The dispute herein is concerned primarily
with the substance of the three conversations.
Albert Sanders testified that the first conversation took place in his office in the
latter part of the morning. Brady inquired if nonunion steamfitters were work-
ing on the Allen-Stevens addition. Upon Albert Sanders' affirmative reply, Brady
told him he would have to get rid of them or there would be "serious trouble."
Brady said he would arrange for the other union tradesmen working on the job
to be pulled off.
Albert Sanders testified further that he told Brady he would be willing to remove
Bomat's nonunion steamfitters from the new construction work and bring them
into the Allen-Stevens plant to do some renovation work, and by that means they
would be of no concern to the union people working on the new construction.
Brady did not accept Albert Sanders' proposal, but rather told him that unless the
nonunion steamfitters were removed from the job he could also cause a strike of
the Allen-Stevens organized employees, and have the Teamster Union members stop
making deliveries to the plant. After some further conversation during which Albert
Sanders pleaded for time in order to contact the contractor to see what the latter
would do, Brady said he would give Albert Sanders several more hours to get the
nonunion steamfitters off the job "before pulling all other union trades off the job
and stopping deliveries." Murray Sanders, who was present during the entire
conversation, testified to the same effect.
The second conversation took place at 2:30 p.m. Murray Sanders was again
present. According to Albert Sanders, he had returned from lunch and was standing
outside the building with his brother (Murray), when Brady talked with them.
Albert Sanders testified he told Brady he had not yet been able to make arrangements
to get the nonunion steamfitters off the job, whereupon Brady indicated that trouble
was now very imminent. Albert Sanders offered his "personal word" to Brady
that as soon as he was able to reach Bomat he would ask the contractor to take the
people off the job immediately. Brady, according to Murray Sanders, also men-
tioned notifying the Building Trades Council and that organization would stop the
job. Brady agreed to check back later that day
About 6 p.m. Brady called the Allen-Stevens plant on the telephone and inquired
what was going to be done. Among other matters discussed, Albert Sanders testified
he told Brady he had spoken to the contractor and Allen-Stevens had decided that
it was not going to force the contractor to remove the nonunion people from the
job. Brady thereupon said "Okay."
Brady testified that as business agent of Respondent Union his duties included,
among others, the investigation of a "nonunion condition" on jobs. Based on a
complaint to this effect, Brady went to the Allen-Stevens plant where he first talked
with the general contractor's superintendent and brought to his attention the non-
union condition there. Brady was then ushered into Murray Sanders' office where
after repeating the nonunion condition because of the steamfitters working there,
he asked if Murray Sanders could get in touch with Bomat so that Brady could
talk to the contractor and "maybe [I] can sign him to an agreement or something."
Brady claimed he left the office after Murray Sanders was not successful in reaching
Bomat and asked him to drop back later.
With regard to his afternoon visit to Allen-Stevens, Brady testified that Murray
Sanders told him he had not yet been able to contact Bomat and for Brady to call
about 6 p.m. Brady said "Okay" and left.
Brady admitted that he called Allen-Stevens on the telephone about 6 p.m. He
testified that he inquired if there was any information from Bomat and was told
by the person on the other end of the telephone 3 "I am not going along with it."
Brady stated he was then asked what he was going to do about it. His reply was
"the best I will do about it is turn it in to the Building Trades Council." Brady denied
telling either of the Sanders to get rid of the nonunion men working on the job. He
also denied telling either of the Sanders that he was going to picket or strike the
job by getting the other crafts to walk off.
Albert Sanders' testimony was straightforward and contained considerable cir-
cumstantial detail. On most essential points it was corroborated by Murray Sanders.
Indeed, from my observation of the demeanor of the Sanders brothers, and so far as
appears from the record, they had no reason to falsify or color their testimony.
From Brady's version of the various conversations, one would be led to believe that
only a few brief remarks were exchanged. I can only conclude from this that
3 Brady did not know which of the Sanderses was talking.
ENTERPRISE ASSOCIATION, LOCAL 638, ETC. 559
Brady's version contained only those parts of the conversation which served his best
interests. In the light of Brady's experience as a union business agent I am unable to
accept his testimony that the reason he went to the Allen-Stevens plant was to have
Sanders make the telephone call to Bomat, to assist him (Brady) in getting Bomat to
sign up with the Respondent Union.
Under all the circumstances, I credit the testimony of Albert Sanders and Murray
Sanders and reject Brady's testimony and find that the statements attributed to Brady
were made substantially as testified by the Sanders brothers.
It is conceded that Brady did not return to Allen-Stevens after February 17. Nor
has there been a strike or picketing at the Allen-Stevens plant at any time.
Conclusions
Section 8 (b)(4)(ii)(B) of the amended Act provides as follows-
8 (b) It shall be an unfair labor practice for a labor organization or its agents-
* *
(4) (ii) to threaten, coerce, or restrain any person engaged in commerce or
in any industry affecting commerce, where in either case an object thereof is:
* * * * * *
(B) forcing or requiring any person to cease using, selling, handling,
transporting, or otherwise dealing in the products of any other pro-
ducer, processor, or manufacturer, or to cease doing business with
any other person, or forcing or requiring any other employer to recog-
nize or bargain with a labor organization as the representative of his
employees unless such labor organization has been certified as the
representative of such employees under the provisions of section 9:
Provided, That nothing contained in this clause (B) shall be construed
to make unlawful, where not otherwise unlawful, any primary strike
or primary picketing.
I have heretofore found that Brady told the Sanders brothers to remove Bomat's
nonunion steamfitters from the Allen-Stevens construction job, or there would be
"serious trouble," such as a strike by other union tradesmen working on the job as
well as a strike of the Allen-Stevens' organized employees, and the stopping of
deliveries to the plant by Teamster Union members. By such statements, I find that
Brady as Respondent Union's agent threatened, coerced, and restrained a secondary
employer (Allen-Stevens) within the meaning of Section 8(b)(4)(ii)(B). I find
further that by making such statements to Allen-Stevens' officers, Respondent Union
had the unlawful "secondary boycott" objective of Section 8(b)(4)(ii)(B), i.e., to
force Allen-Stevens to cease doing business with Bomat, all in violation of Section
8(b) (4) (ii) (B) of the Act. See Gilmore Construction Company, 127 NLRB 541,
particularly footnote 6, dealing with the legislative history of the 1959 amendments
to the Act.
IV. THE REMEDY
Having found that the Respondent Union has engaged in unfair labor practices
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Allen-Stevens and Bomat are employers within the meaning of Section 2(2)
of the Act.
2. The Respondent Union is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening, coercing, or restraining Allen-Stevens with the object of forcing
or requiring Allen-Stevens to cease doing business with Bomat, the Respondent
Union has engaged in unfair labor practices within t he meaning of Section
8(b) (4) (ii) (B) of the Act.
4. The aforesaid unfair labor practices having occurred in connection with the
operations of Allen-Stevens and Bomat, as set forth above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
substantially affect commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]