Glaziers Local Union 1184, Painters

National Labor Relations Board - Board Decisions

Apr 25, 1967

164 N.L.R.B. 116 (N.L.R.B. 1967)

116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glaziers Local Union 1184 , Brotherhood of
Painters , Decorators and Paperhangers of
America , AFL-CIO and Tennessee Glass
Company, Incorporated . Cases 26-CC-97 and
26-CC-99.
April 25, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On September 28, 1966 , Trial Examiner John F.
Funke issued his Decision in the above-entitled
proceeding , finding that Respondent had engaged in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter , Respondent' and
the General Counsel2 filed exceptions to the Trial
Examiner 's Decision and supporting briefs. The
Brotherhood of Painters , Decorators and
Paperhangers of America , AFL-CIO, filed an
amicus curiae brief in support of Respondent, and
the Charging Party filed an answering brief to the
Respondent ' s brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 Trial
Examiner 's Decision , the exceptions and briefs, and
the entire record in this proceeding , and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner , as modified
below.
We agree with the Trial Examiner 's finding of a
violation herein . The wording of the letter of
September 12, 1965, demonstrates that it was aimed
specifically at those of its members who were
independent contractors with the design and intent
of restraining and coercing them through threat of
disciplinary action . Indeed , Respondent by its
answer to the complaint admits that an object of the
letter was to force or require Wells, Weeks, Green,
and White and Williams to cease doing business
with Tennessee Glass. As the target of the coercion
was to achieve, through such members in their
capacity as independent contractors , an objective
interdicted by Section 8(b)(4)(B ) of the Act, we find,
contrary to Respondent's contention that it was not
immunized from illegality by the proviso to Section
8(b)(1)(A) of the Act. Accordingly , we adopt the Trial
Examiner's findings , conclusions , and recommenda-
tions to the extent that he finds that, by sending its
letter of September 12, 1965 , with the aforesaid
design , to Wells, Weeks, Green, and White and
Williams, threatening such persons with disci-
plinary action for doing business with Tennessee
Glass, and by imposing disciplinary action on Wells
for doing business with Tennessee Glass, Respond-
ent had violated Section 8(b)(4)(ii)(B) of the Act.3
However, we do not find that Respondent has
violated Section 8(b)(4)(ii)(B) of the Act by sending
the letter to its members who are not independent
contractors.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Glaziers Local
Union 1184, Brotherhood of Painters, Decorators
and Paperhangers of America, AFL-CIO, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's
Recommended Order.
i Respondent 's request for oral argument s hereby denied as
the record , including the exceptions and briefs , adequately
presents the issues and positions of the parties
2 The General Counsel excepted to the failure of the Trial
Examiner to find that the action of Respondent in bringing
charges against Wells under procedures set up within
Respondent's organization , because Wells had aided and abetted
Tennessee Glass in the processing of the unfair labor practice
charges in Case 26-CC-97, constituted action violative of Sec
8(b)(4)(u)(B) To find such action violative of Sec 8(b)(4)(u)(B), it
would be necessary to find that , by bringing the above charges,
Respondent threatened , coerced , or restiamed Wells with the
object of forcing him to cease doing business with Tennessee
Glass . We do not pass on this issue , for, even if the aforesaid
action of Respondent were found to be a violation of Sec
8(b)(4)(u)(B), it would in no way expand the scope of our Order
Accord: Local 150 International Union of Operating Engineers,
AFL-CIO, et at. (Frisch Contracting Service Company, Inc.), 149
NLRB 29, 36
9 Accord American Guild of Musical Artists, AFL-CIO and
Washington Branch, American Guild of Musical Artists, AFL-CIO
(National Symphony Orchestra Association), 157 NLRB 735
4 Nor do we find it necessary to express any view in this
case-since we do not deem that specific issue to be now before
us-as to whether absent a specific design such as herein found, a
union's issuance of a "do-not-patronize " notice might run afoul of
Sec 8 ( b)(4)(B) simply because some of the union's members may
also be businessmen having actual or potential business contacts
with the struck employer
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN FUNKE, Trial Examiner: Upon a charge filed in
Case 26-CC-97, on September 23, 1965, by Philip M.
Carden, an individual, against Glaziers Local Union 1184,
Brotherhood of Painters, Decorators and Paperhangers,
AFL-CIO, herein Local 1184, or the Respondent, and
upon another charge filed on March 26, 1966, by
Tennessee Glass Company, Incorporated, herein
Tennessee, the General Counsel issued a consolidated
complaint alleging Respondent violated Section
8(b)(4)(ii)(B) of the Act.
164 NLRB No. 19
GLAZIERS LOCAL UNION 1184 , PAINTERS 117
Respondent denied the commission of unfair labor
practices and asserted affirmative defenses.'
This proceeding, with all parties represented, was heard
by me at Nashville, Tennessee, on May 25, 1966. At the
conclusion of the hearing the parties were given leave to
file briefs. Briefs were received from the General Counsel,
the Respondent, and Tennessee on July 13.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
I. THE BUSINESS OF THE COMPANIES INVOLVED
Tennessee has its office and place of business at
Nashville, Tennessee, where it is engaged in the sale,
distribution, and manufacture of installation glass and
related products. During a representative 12-month period
Tennessee received gross revenues in excess of $500,000.
During the same period it purchased goods and materials
valued in excess of $50,000 directly from points outside the
State of Tennessee.
Gyndel E. Wells, d/b/a Pete Wells Glazing Contractor,
herein Wells, is a sole proprietorship engaged in the
installation of glass and related products at Nashville.
Tennessee, and during a representative 12-month period
purchased goods and materials in the approximate value of
$30,000 from Tennessee, of which it is estimated 80
percent originated outside the State of Tennessee.
Charles Weeks, d/b/a Woodbine Glass Co., herein
Weeks, Doyle Green, d/b/a G.E. Glass Co., herein Green,
James White and Jimmy Williams, d/b/a W & W Glass
Co., herein White and Williams, are single proprietorships
and a partnership engaged in the installation and glazing of
glass and related products.
Tennessee, Wells, Weeks, Green, and White and
Williams are engaged in the building and construction
industry. Respondent admits or does not deny that
Tennessee, Weeks, Green, and White and Williams are
engaged in commerce or an industry affecting commerce.
I so find. It does not admit that Wells is engaged in
commerce within the meaning of the Act. Despite the fact
that the jurisdictional issue was raised with respect to
Wells, little testimony was taken on the issue. From the
record, however, I think it can be established that Wells
was engaged in the installation of glass, as were the other
proprietorships, on construction projects and I would
therefore find that he was engaged in commerce within the
meaning of the Act.2 It is also the policy of the Board in so-
called secondary boycott situations to assert jurisdiction
over secondary employers if the primary employer meets
the Board's standards.3
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. The September 14 letter
Tennessee, together with Pittsburgh Plate Glass Co.,
herein Pittsburgh, and Bingswanger Glass Co., herein
Bingswanger, had had contractual bargaining
relationships as a multiemployer bargaining unit at
Nashville with Local 1184 for a period of some years prior
to October 1, 1964. On that date, which was the contract
termination date, Local 1184 struck Tennessee and
Bingswanger over economic issues. Local f184 had
identical contracts with two smaller glazing companies,
Weeks and Green, which were also struck. In March
1965,4 Local 1184 settled its strike with Bingswanger,
Weeks, and Green and entered into new contracts with
them.5 The dispute with Tennessee and the strike at that
plant was continuing at the time of the hearing.
During all times material herein and up to and including
the time of hearing Charles Weeks. Doyle Green . James
White, Jimmy Williams, and Gyndel Wells were members
of Local 1184. On September 14, Local 1184 sent to all its
members copies of a letter (G. C. Exh. 6) which read:
The Executive Board meeting was held
September 12th 1965. It was decided that a non-union
condition has existed at Tennessee Glass Company
since October 1 1964 up until now , and as we have
been informed will be non-union from now on. We, the
membership and Executive Board of Local Union
No. 1184 except this position of Tennessee Glass Co.,
and are instructing our members who are in any way,
form or fashion doing business with Tennessee Glass
Co. or any of their Associates to stop immediately. We
are saying that beginning Monday September 20th,
1965, Local Union No. 1184 will bring charges against
any member found guilty of having any connection
with this situation with Tennessee Glass Co. or their
Associates.
We are also instructing members of Local Union
No. 1184 that beginning September 20th 1965 that no
one will work for anyone who does not have a signed
Contract. We refer this to Article 2 of our present
agreement which expires March 21st 1967.
Signed EXECUTIVE
BOARD
C. W. Russell
Evert Steele
Frank McMurty
Jim D. Dier, Jr.
2. The case of Wells
II. LABOR ORGANIZATION INVOLVED
Local 1184 is a labor organization within the meaning of
the Act.
I At the hearing Respondent moved to amend its answer by
striking from paragraph 3 the admission as to paragraph 3(d) of
the complaint and by striking from paragraph 8 of its answer the
words "as to Tennessee Glass Company and its allies." Both
motions were granted. As to any motions by any party on which
decision was reserved they are disposed of by the terms of this
Decision.
2 Sheet Metal Workers International Association, Local Union
Gyndel Wells testified that he entered the glazing
business at Nashville on or about July 15. His home was
his office and at the time of the hearing he had one
employee, employed 4 or 5 months prior to the hearing. He
No. 299, AFL-CIO, et al . (S.M. Kisner and Sons), 131 NLRB 1196,
1198-99 ; Chauffeurs , Teamsters & Helpers Local No. 364, et al.
(The Light Co., Inc .), 121 NLRB 221.
3 Id.
4 Unless otherwise stated all dates hereinafter refer to 1965.
5 About this time White and Williams entered this business as
small contractors.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had entered into a collective-bargaining contract with
Local 1184 about 1 week prior to November 16 and the
contract had been approved by the membership of
Local 1184. When Wells started business he borrowed
$200 from Tennessee, which he repaid (he also invested
some $600 of his own money), at least in substantial part.
While counsel for Respondent attempted to show that
Tennessee paid for his tools the evidence establishes that
the saw and the repairs to it were paid for by Wells. (G. C.
Exh. 8-a and 8-b.) He bought his truck from Tennessee
and received estimates on the cost of materials, plans, and
specifications from Tennessee. Tennessee did not,
however, do any fabricating or glazing work for Wells.
While the General Counsel introduced no evidence on
direct examination to establish that disciplinary action was
taken by Local 1184 against Wells because he did
business with Tennessee, counsel for Respondent on
cross-examination elicited testimony which established
that Wells had been tried three or four times by Local 1184
for doing business with Tennessee. In the first case he
paid the fine, in the second the charges were dismissed,
and on December 21 other charges were brought against
him for the same offense. He was fined on this charge and
his appeal to the executive board of the International was
pending at the time of hearing.
This summarizes the testimony which I consider
relevant.
B. Conclusions
The only issues in the case have been summarized in the
brief of the Charging Party as:
1. Where an individual is both a union member and
an employing contractor, is the union generally
privileged to threaten, coerce and restrain the union
member by means of intra-union disciplinary
procedures where an object thereof is admittedly to
prevent the individual from buying his contracting
materials from a struck primary employer?
2. If there is no such general privilege, has the
respondent union shown a special privilege in this
case by establishing, as an affirmative defense, that
one of the member-contractors involved (Gyndel E.
Wells, d/b/a Pete Wells Glazing Contractor) was an
ally of the struck primary employer and performing
struck work for such primary employer?
I believe the first question must be answered in the
negative and since I believe the district court judge has
fully provided the reasons for this conclusion in his
decision in John J. A. Reynolds, Jr., Reg. Dir. v. Glaziers
Local Union 1184, Painters, etc. (Tennessee Glass Co.,
Inc.), an injunction proceeding brought in the U.S. District
Court of Tennessee, Civil No. 4401, issued May 23, 1966, I
shall quote from so much of the decision as relates to this
issue. The court stated:
Defendant further asserts that an injunction is not
authorized for the reason that the Regional Director is
seeking to interfere with the internal affairs of a labor
organization. The claim here is that Wells, Weeks,
Green, White and Williams are members of the
defendant union, and that they are disciplined only as
members. For the purpose of analyzing this claim, let
us call Tennessee Glass employer "E" with Wells
Glazing Contractor being employer "A", Woodbine
6 Cf Local 138, International Union of Operating Engineers
AFL-CIO (Charles S Skura), 148 NLRB 679, Tawas Tube
Products, Inc , 151 NLRB 46
'This defense is not asserted in Respondent 's brief His
Glass Company being employer "B", C. E. Glass
Company being employer "C", and W. W. Glass
Company being employer "D". In the ordinary
secondary boycott situation, the union orders its
members not to work for employers A, B, C, or D if
employers A, B, C, or D do business with employer E.
The union objective is to compel employer E to
resolve a dispute between the union and employer E.
This type of union activity is illegal because it brings
pressure to bear against employers A, B, C, and D,
with whom (as in this case) the union has no dispute.
It is illegal even though the union disciplines only
union members, because the necessary effect of such
discipline is to disrupt the business of employers A,
B, C and D. Genuine Parts, 119 NLRB 1806 [3991,
enforced sub nom . Truck Drivers and Helpers Local
Union No. 728 v. N.L.R.B., 265 F.2d 439 (5th Cir.),
cert. denied, 361 U.S. 917 (1959). In the present case,
if the union were to order its members to refuse to
work for employers A, B, C, or D, the order would
clearly be illegal. In fact, however, the union
members do not work for employers A, B, C, and D,
they are employers A, B, C, and D. Thus, although
this is not the typical secondary boycott case, it is
arguable that the union's order is even more illegal in
that it brings pressure to bear directly against
employers A, B, C and D, rather than through their
employees. The union contends that it is ordering the
members as members, and the fact that some of the
members are also contractors and employers is an
irrelevant coincidence. In fact, however, the
members, as members, do not do business with
Tennessee Glass. They are certainly not employed by
Tennessee Glass. Any business they may do with
Tennessee Glass is done by them as contractors.
Consequently, a union order which directs them not
to do business with Tennessee Glass must be directed
to their activities as contractors. It is not the fact that
they are contractors which is a coincidence, but the
fact that they are union members. The union is
attempting to justify an otherwise illegal secondary
boycott solely because the secondary employer is also
a union member. The question is certainly unique, but
it must be said that the petitioner has established at
least reasonable cause to believe that such boycott is
prohibited by the Act. Certainly, the union, by
threatening Wells, Weeks, Green, and White and
Williams, is threatening Pete Wells Glazing
Contractor, Woodbine Glass Company, C. E. Glass
Company, and W. W. Glass Company.
I am in complete agreement with the court.6 As to the
defense that certain contractors were not in fact coerced
by this letter,' I find such a defense to be without merit.
The issue is not the fact of coercion but whether the letter
reasonably tended to coerce the contractors. A reading of
the letter demonstrates conclusively that it was intended
to coerce the independent contractors into a cessation of
business with Tennessee by threatening the contractors
herein with disciplinary action.
Respondent has raised a special defense with respect to
Wells, claiming that he was an "ally" of Tennessee to
perform work for union contractors which Tennessee, by
reason of the labor dispute, could not perform. The
interrogation of the General Counsel's witness was directed in
part to the fact of coercion so I think the issue had best be
determined
GLAZIERS LOCAL UNION 1184, PAINTERS 119
Board ' s ally doctrine applies to two sets of circumstances.
In one the primary employer and the secondary employer,
although separate legal entities , are commonly owned and
controlled so that they may be considered a single
employer . Although Respondent sought to show that
Tennessee had established and assisted Wells in his
glazing business the proof fell far short of the contention.
The evidence in this case does not establish the "common
ownership and control" and an "actual integration of
operations and management policies" sufficient to make
Wells an ally of Tennessee under this criteria.8
I likewise find an insufficiency of evidence to bring the
case within the purview of the second set of
circumstances . The leading case on this issue, as counsel
for Respondent points out in his brief, is N.L.R.B. v.
Business Machine and Office Appliance Mechanics
Conference Board, Local 459, etc. (Royal Typewriter Co.),
228 F .2d 553 (C.A. 2). In the Royal case , Royal was struck
by its service employees who customarily repaired Royal
typewriters either at Royal' s branch offices or at its
customers ' places of business . Royal was under contract
with certain customers to repair its typewriters under its
warranty . When the strike began Royal ' s contract
customers were advised to have their typewriters repaired
by independent repair companies and to send Royal the
bill. The union then picketed those employers whom it
suspected of using the service of independent contractors
and those firms which it suspected of performing the
repair work . The court, reversing the Board ,9 held that the
picketing of the repair companies was not unlawful under
Section 8 (b)(4)(B) of the Act. The court stated:
Thus the picketing of the independent typewriter
companies was not the kind of secondary activity
which §8(b)(4)(A) of the Taft-Hartley Act was designed
to outlaw. Where an employer is attempting to avoid
the economic impact of a strike by securing the
services of others to do his work, the striking union
obviously has a great interest , and we think a proper
interest, in preventing those services from being
rendered . This interest is more fundamental than the
interest in bringing pressure on customers of the
primary employer. Nor are those who render such
services completely uninvolved in the primary strike.
By doing the work of the primary employer they
secure benefits themselves at the same time that they
aid the primary employer . The ally employer may
easily extricate himself from the dispute and insulate
himself from picketing by refusing to do that work.
I find a significant distinction between the facts of this
case and Royal Typewrtter. With the exception of the DX
contract , 1° I cannot find that Wells performed any work
which had been under contract to Tennessee. On the
record herein he sought and got his own contracts and,
while he used Tennessee materials , at least for the most
part , he was free to do so. The use of a struck employer's
materials does not constitute engaging in "struck work."
As to whether Tennessee would have obtained the
,contracts which Wells obtained but for the strike the
answer must be purely speculative . Unlike the
independent repair contractors in the Royal Typewriter
case, Wells received his remuneration from the
contractors , not from Tennessee , and the remuneration
was fixed by negotiations between Wells and his
customers.
Having found that the action taken by Local 1184
against the contractors who dealt with Tennessee was
taken against them as employers and not as union
members, I do not reach the so-called preemption issue
raised by Respondent in its brief.
IV. THE REMEDY
Having found Respondent has engaged in and is
engaging in certain unfair labor practices , it shall be
recommended that it cease and desist therefrom , and take
certain affirmative action necessary to effectuate the
policies of the Act.
Upon the foregoing findings and conclusions and upon
the entire record I make the following:
CONCLUSIONS OF LAW
1. By its letter of September 12, 1965, to all its
members, including Wells, Green , Weeks, and White and
Williams, and by imposing disciplinary action upon Wells
for doing business with Tennessee with the object in the
first instance of forcing Wells, Green, Weeks, and White
and Williams to cease doing business with Tennessee, and
in the second of forcing Wells to cease doing business with
Tennessee, Respondent has violated Section 8(b)(4)(ii)(B)
of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the entire record in this case , it is recommended
that Glaziers Local Union 1184, Brotherhood of Painters,
Decorators and Paperhangers of America, AFL-CIO, its
officers , agents, and representatives, shall:
1. Cease and desist from threatening , restraining, and
coercing Gyndel E. Wells, d/b/a Pete Wells Glazing
Contractor, Charles Weeks, d/b/a Woodbine Glass Co.,
Doyle Green, d/b/a G. E. Glass Co., and James White and
Jimmy Williams, d/b/a W & W Glass Co., or any other
employer engaged in the construction industry who is a
member of Local 1184 with the object of forcing Wells,
Weeks, Green, and White and Williams or any other
employer engaged in the construction industry who is a
member of Local 1184 to cease doing business with
Tennessee Glass Company, Incorporated.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its offices and meeting halls, copies of the
attached notice marked "Appendix."" Copies of said
notices, to be furnished by the Regional Director for
8 See Miami Newspaper Printing Pressmen 's Local No 46
(Knight Newspapers , inc.) v N L R .B , 322 F 2d 405 , 408, 409
(C A 5)
0 The Board ' s decision is reported in 111 NLRB 317
10 The General Counsel concedes in his brief that Wells was
performing struck work when it assumed the DX contract from
Tennessee Counsel for Tennessee also concedes in his brief that
the DX job was a subcontracting job performed for Tennessee but
contends that this lone performance cannot serve to make him an
ally I agree N L R B v Dallas General Drivers, etc , Local
No 745, 264 F 2d 642 , 647 (C A 5)
11 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for
the words " the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board ' s Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision -and Order "
120 DECISIONS OF NATIONAL
Region 26, shall , after having been duly signed by an
authorized representative of Respondent , be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for a period of 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 said notices
are not altered , defaced , or covered by other material.
(b) Sign and mail sufficient copies of said notice to the
Regional Director for Region 26, for posting by Wells,
Green , Weeks, and White and Williams , and Tennessee, if
willing, at all locations on their premises where notices to
employees are customarily posted.
(c) Notify said Regional Director within 20 days from
the receipt of this Decision and Order , what steps have
been taken to comply herewith.12
12 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read: "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF GLAZIERS LOCAL
UNION 1184 , BROTHERHOOD OF PAINTERS,
DECORATORS AND PAPERHANGERS OF AMERICA,
AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
LABOR RELATIONS BOARD
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT threaten , restrain , or coerce Gyndel
E. Wells, d/b/a Pete Wells Glazing Contractor,
Charles Weeks, d/b/a Woodbine Glass Co., Doyle
Green , d/b/a G . E. Glass Co., James White and Jimmy
Williams, d/b/a W & W Glass Co., or another
employer engaged in the construction industry who is
a member of Local 1184 , with the object of forcing
Wells, Green , Weeks, and White and Williams , or'any
other employer who is engaged in the construction
business who is a member of Local 1184 to cease
doing business with Tennessee Glass Company,
Incorporated.
GLAZIERS LOCAL
UNION 1184, BROTHERHOOD
OF PAINTERS, DECORATORS
AND PAPERHANGERS OF
AMERICA, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
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.
If members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with Board ' s Regional Office, 746 Federal Office
Building, 167 North Main Street , Memphis, Tennessee
38103, Telephone 534-3161.