International Hod Carriers, Local No. 1140

National Labor Relations Board - Board Decisions

Feb 5, 1960

126 N.L.R.B. 488 (N.L.R.B. 1960)

488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 All production and maintenance employees of the Respondent 's Dalton,
Georgia, plant, excluding office clerical employees , guards, professional employees,
and supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act
3. The aforesaid labor organization is and has been at all mater ial times the ex-
-elusive representative of the employees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act
4 By discriminating in regard to the hire and tenure of employment of its em-
ployees, and thereby discouraging membership in the aforesaid labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of,Section 8 (a) (3) of the Act
5 By locking out and laying off its employees in the aforesaid bargaining unit
during the course of collective bargaining for the purpose of forcing the aforesaid
labor organization and the employees in the aforesaid bargaining unit to abandon
bargaining demands made by them and to accept instead contract terms proposed
by the Respondent , the Respondent has impeded and impaired collective bargaining
with the Union and has acted ina manner inconsistent with good -faith bargaining,
and by reason thereof has failed to bargain in good faith with the Union , thereby
engaging in unfair labor practices within the meaning of Section 8(a)(5) of the
Act
,6 By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act , the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)<1) of the Act
7 The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act
[Recommendations omitted from publication I
International Hod Carriers, Building and Common Laborers'
Union of America, Local No. 1140 , AFL-CIO and Economy
Forms Corporation
International Hod Carriers, Building and Common Laborers'
Union of America, Local No. 1140, AFL-CIO and, Peter Kiewit
Sons' Company
International Hod Carriers , Building and Common Laborers'
Union of America, Local No 1140, AFL-CIO and Miller Exca-
vating Company
International Hod Carriers , Building and Common Laborers'
Union of America , Local No. 1140, AFL-CIO and Natkin & Co.
Cases Nos 17-CC-91, 17-CC-992, 17-CC-93, and 17-CC-94 Feb-
rvary 5, 1960
2
DECISION AND ORDER
I
On October 2, 1959, Trial Examiner C W Whittemore issued his
Intermediate Report in the above-entitled proceeding , finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative 'action, as set forth in the copy of the
Intermediate Report attached hereto Thereafter, the Respondent
and the General Counsel filed exceptions and supporting briefs
,126 NLRB No 66
INTERNATIONAL HOD CARRIERS, LOCAL NO. 1140 489,
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
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 Interme-
diate Report, the exceptions and briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
tion of the Trial Examiner, with the modifications set forth below.'
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor-
Relations Board hereby orders that the Respondent, International
Hod Carriers, Building and Common Laborers' Union of America,.
Local No. 1140, AFL-CIO, its officers, representatives, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from engaging in a strike, or inducing or en-
couraging the employees of Peter Kiewit Sons' Company, Natkin
Co., Miller Excavating Company, or of any employer other than
Economy Forms Corporation, to engage in a strike or a concerted
refusal in the course of their employment to perform services for their
employer, where an object thereof is (a) to force or require Peter
Kiewit Sons' Company or any other employer or person to cease doing-
business with Economy Forms Corporation and subcontractors to
cease doing business with their general contractor, or (b) to force or
require Economy Forms Corporation to recognize or bargain with
the Respondent as the representative of its employees unless the Re-
spondent has been certified as the representative of such employees
under the provisions of Section 9 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
' We find no merit In the Respondent's reliance upon Brotherhood of Painters, etc.,
Local Union No. 193, et al., AFL, (Pittsburgh Plate Glass Company), 110 NLRB 455, in
support of its contention that its picketing did not violate the Act. There, the Board
held that a union did not violate the Act by picketing a construction site for part of
1 day, as the union was unaware that no employees of the primary employer were
working on that particular day and the union removed thepickets promptly upon learning
of this fact. In the Instant case, no employees of Economy Forms, the primary em-
ployer, ever worked on the construction site, the Respondent picketed for a total of 3-
days and continued to do so after being notified that Economy Forms had no employees
on the job, and the Respondent extended its picketing to a separate area of the con-
struction site where it knew that only employees of Miller Excavating were working.
Radio Broadcast Teehnicxan's Local No. 1225 et al., AFL-CIO (Rollins Broadcasting,
Inc ), 117 NLRB 1491, 1493.
We have also modified the Order recommended by the Trial Examiner to identify some
of the employers whose employees were illegally induced, as indicated In the record and
the Intermediate Report. We further find that it will effectuate the policies of the Act
to provide in our Order for posting of the Respondent's notice by these employers, if they
are willing to do so.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at its business offices in Lincoln and Omaha, Nebraska,
copies of the notice attached hereto marked "Appendix." 2 Copies of
said notice, to be furnished by the Regional Director for the Seven-
teenth Region, shall, after being duly signed by a representative of
the Respondent, be posted by the Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for the Seventeenth Region
signed copies of the aforesaid notice for posting by Peter Kiewit
Sons' Company, Natkin & Co., and Miller Excavating Company, at
places where they customarily post notices to their respective em-
ployees, if these companies are willing to do so.
(c) Notify the Regional Director for the Seventeenth Region in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2 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 , Enfoi sing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL HOD CARRIERS, BUILDING
AND COMMON LABORERS' UNION OF AMERICA, LOCAL No. 1140, AFL-
CIO AND EMPLOYEES OF PETER KIEWIT SONS' COMPANY, NATKIN &
CO., AND MILLER EXCAVATING COMPANY
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, as amended, we hereby notify our members that :
WE WILL NOT engage in a strike, or induce or encourage the em-
ployees of Peter Kiewit Sons' Company, Natkin & Co., Miller
Excavating Company, or any employer other than Economy
Forms Corporation, to engage in a strike, or a concerted refusal
in the course of their employment to perform services for their
employer where an object thereof is (a) to force or require Peter
Kiewit Sons' Company or any other employer or other person to
cease doing business with Economy Forms Corporation and sub-
contractors to cease doing business with their general contractor;
or (b) to force or require Economy Forms Corporation to recog-
nize or bargain with International Hod Carriers, Building and
Common Laborers' Union of America, Local No. 1140, AFL-CIO,
INTERNATIONAL HOD CARRIERS , LOCAL NO. 1140 491
as the representative of its employees unless and until it has been
certified as the representative of such employees under the pro-
visions of Section 9 of the Act.
INTERNATIONAL HOD CARRIERS, BUILDING AND
COMMON LABORERS' UNION OF AMERICA,
LOCAL No. 1140, 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
STATEMENT OF THE CASE
Charges having been filed in each of the above -entitled cases ; an order con-
solidating said cases and a complaint thereon having been issued by the General
Counsel of the National Labor Relations Board ; and an answer having been filed by
the above-named Respondent Union , a hearing involving allegations of unfair labor
practices in violation of Section 8(b)(4)(A ) and (B) of the National Labor Rela-
tions Act, as amended , was held in Lincoln, Nebraska, on August 11, 1959 , before
the duly designated Trial Examiner.
At the hearing all parties were represented by counsel , and were afforded full
opportunity to be heard , to examine and cross-examine witnesses , to introduce
evidence pertinent to the issues , and to present oral argument and briefs. Oral
argument was waived . Briefs have been received from General Counsel and the
Respondent.
Upon the entire record , and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE CHARGING EMPLOYERS
The amended answer admits the following allegations of the complaint:
( a) Economy Forms, an Iowa corporation with its main office and principal
place of business at Des Moines, Iowa, is engaged in the business of selling and
renting steel forms and supplies for use in forming concrete . During the year 1958
it sold and rented forms and supplies in an amount in excess of $150,000 to con-
tractors outside the State of Iowa.
(b) Kiewit, a general construction building contractor with its principal office
in Omaha, Nebraska, conducts its operations in most of the States of the United
States and it annually performs services outside of the State of Nebraska valued in
excess of $150,000.
(c) Miller, a Nebraska corporation having its principal office at Omaha, Nebraska,
is engaged primarily in earth excavation , pile driving, wrecking , and paving. In the
course and conduct of its operations it annually performs services outside the State
of Nebraska valued in excess of $150,000.
(d) Natkin , a Missouri corporation with its main office located in Kansas City,
Missouri, is engaged in mechanical construction work and operates in many States
throughout the United States. In its business operations it annually performs serv-
ices outside the State of Missouri valued in excess of $150,000.
It is concluded and here found that each of the above-named employers is engaged
in commerce within the meaning of the Act.
H. THE RESPONDENT LABOR ORGANIZATION
International Hod Carriers, Building and Common Laborers' Union of America,
Local No. 1140, AFL-CIO, is a labor organization within the meaning of the Act.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
For a period of 21/2 days the Respondent Union, by action of its business rep-
resentative, Leonard Shaeffer, brought to a complete halt construction work at the
Sheldon Station site of the Consumers Public Power District at Hallam, Nebraska.
Employees of at least three national construction and service concerns left and
remained away from their jobs when, upon Shaeffer's instructions, union pickets
appeared at entrances to and upon the premises of the site, carrying signs stating
that Local 1140 was "on strike for a contract" with Economy Forms-a Des Moines,
Iowa, employer who had no employees at this atomic energy site, had had none,
and who, so far as the record shows, never intended to have any on the job.
At the hearing the Respondent offered no evidence as to why Shaeffer took such
action.
Only in General Counsel's case is there indication that Shaeffer may have mis-
understood what he was told by Superintendent Kullman of the general contractor,
-Peter Kiewit Sons' Company, and by mistake ordered the picket line.
Briefly stated, the circumstances established by uncontradicted testimony are as
follows:
,1. On or about April 27, 1959, a number of steel forms, rented by General
Contractor Kiewit from the Des Moines' firm of Economy Forms, were delivered
and unloaded at the job site.
2. On April 28 about 70 employees of various crafts were working at the project
under supervision of the general contractor and certain subcontractors, including
Charging Employers Natkin and Miller excavating. No employee of Economy
Forms was there.
3. During the afternoon of the same day, April 28, Business Representative
Shaeffer and two assistants approached Superintendent Kullman. Shaeffer pointed
to someone 50 feet away and told Kullman: "You got a non-union man working
over here, get him off the job by quitting time." Kullman replied that he was
unaware of any nonunion man on the job, and then added that it might be someone
"our Economy Forms foreman hired Monday morning to unload his forms." (This
foreman, Surls, is employed by Kiewit, not by Economy Forms, but is commonly
referred to by Kullman as his "Economy Forms foreman" because of his experience
in erecting this particular type of forms on construction jobs ) Shaeffer then went
to Foreman Surls, talked with him, and came back by Kullman. As he passed by,
he said to one of his assistants standing near Kullman, "Well, we won't make it
Thursday, we will make it tomorrow morning." Kullman turned to the union
representative beside him and asked what Shaeffer meant by that remark and received
the reply: "I guess he means he will picket the job tomorrow morning."
4. At no time was Superintendent Kullman asked by Shaeffer if an Economy
Forms employees were employed on the site.
5. The forecast of the union representative was accurate. The next morning,
April 29, pickets appeared at the project. At one location in the area nine em-
ployees of Miller Excavating reported for and began work at 6 o'clock. About 10
o'clock pickets of the Respondent Union appeared and took positions at a point
which Miller's employees had to cross to dump the earth being moved. All these
employees left the job; the pickets remained. Miller's employees returned to the
site both the next morning and Friday, May 1. The pickets were there each morning
and they declined to work.
6. About 8 a.m. on April 29 union pickets appeared at the north entrance to the
site. Employees of Subcontractors Kelly-Hill Company of Kansas City and Layne-
Western Drilling Company, who had started work earlier that morning, promptly
left the site. Employees of other employers, also, who were either already on the
job or just reporting for work, left the site.
7. Picketing continued both at the north and the south entrances to the project
until about 2 o'clock in the afternoon of May 1. After the pickets left, employees
resumed work. All work on the project, due to the tresence of the pickets, was at a
standstill] from the morning of April 29 until midafternoon of May 1.
8. Pickets at all times carried signs bearing the legend:
LABORERS' LOCAL 1140
ON STRIKE FOR CONTRACT
AGAINST ECONOMY FORMS
AGAINST THIS CONTRACTOR ONLY
9. On April 29, having been informed by Superintendent Kullman of the pickets'
presence, the local sales manager of Economy Forms made several futile attempts
to reach Shaeffer by telephone. On April 30, the head of Economy Forms sent
INTERNATIONAL HOD CARRIERS , LOCAL NO. 1140 493
Shaeffer the following wire , which was received at the union office at 2:30 p.m. on
that date:
THIS IS TO CONFIRM OUR SEVERAL VERBAL NOTICES THAT
1. ECONOMY FORMS CORPORATION HAS FOR YEARS HAD COL-
LECTIVE BARGAINING AGREEMENT WITH ALL OF ITS PRODUC-
TION EMPLOYEES . 2. NONE REPEAT NONE OF OUR EMPLOYEES
ARE EMPLOYED ON THE HALLAM NEBRASKA PROJECT OR UN-
LOADING OR HANDLING OUR EQUIPMENT THERE AND 3. THAT
THE STATEMENT ON YOUR PICKET BANNERS THAT YOU ARE
ON STRIKE AGAINST US OR THAT WE ARE UNFAIR ARE BOTH
UNTRUE AND SEVERELY DAMAGING TO OUR VALUEABLE [sic]
TRADE AND LABOR RELATIONS.
10. Not until at least 24 hours after the Respondent Union received the above
wire were the pickets removed from the site.
There is no dispute as to the above facts. The sole question to be resolved is
whether by such conduct the Respondent Union violated Section 8(b) (4) (A) and
(B) of the Act.
B. Conclusions
Whether the Respondent Union's conduct as above described was engaged in by
mistake or by intent , the resultant work stoppage was effective and commerce was
interrupted . The placing of pickets was plainly designed to induce and encourage
employees of all employers on the job to cease performing any work and to cause
both Kiewit to cease doing business with Economy Forms and the various sub-
contractors to cease doing business with the prime contractors . The wording of the
picket sign , also, set out above, makes it visibly clear that an object of the picketing
was to force or require Economy Forms to recognize and bargain with the Union,
although the Union , as the answer admits, at no material time had been certified as
the collective -bargaining representative of Economy Forms employees.
In short, the undisputed testimony and unrefuted evidence confers merit upon the
allegations of the complaint that by such conduct the Respondent Union violated
Section 8 ( b) (4) (A) and ( B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Employers described in section I, above, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Union has engaged in activities violative of
Section 8 ( b) (4) (A) and ( B) of the Act, the Trial Examiner 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 above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Employers Economy Forms , Kiewit, Miller , and Natkin are engaged in com-
merce within the meaning of the Act.
2. International Hod Carriers, Building and Common Laborers' Union of Amer-
ica, Local No. 1140, AFL-CIO, is a labor organization within the meaning of Sec-
tion 2 ( 5) of the Act.
3. By inducing and encouraging employees of employers to engage in a concerted
refusal in the course of their employment to perform services for their respective
employers , an object thereof being: ( a) to require Kiewit to cease doing business
with Economy Forms, and subcontractors to cease doing business with Kiewit, and
(b) to force or require Economy Forms to recognize and bargain with the Respond-
ent as the collective -bargaining representative of its employees , although the Re-
spondent has not been certified as such representative in accordance with the pro-
visions of the Act, the Respondent Union has engaged in unfair labor practices
within the meaning of Section 8 (b)(4)(A) and ( B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of the Act.
[Recommendations omitted from publication.]