Iron Workers Local 167

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 201 (N.L.R.B. 1969)

IRON WORKERS LOCAL 167
Iron Workers Local Union No. 167, International
Association of Bridge , Structural and Ornamental
Iron Workers, AFL-CIO and Tayloe Glass
Company . Case 26-CC-171
December 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On October 22, 1969, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
proceeding, finding that the 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,
the General Counsel filed exceptions to the Trial
Examiner ' s Decision and a supporting statement,
and the Respondent filed an answering 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 case, and hereby adopts the
findings , conclusions, and recommendations of the
Trial Examiner with the modifications noted.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein , and hereby orders that the
Respondent , Iron Workers Local Union No. 167,
International Association of Bridge, Structural and
Ornamental Iron Workers , AFL-CIO , its officers,
agents , and representatives, shall take the action set
forth in the Trial Examiner ' s Recommended Order,
as modified herein:
Amend paragraphs 1(a) and 1 (b) and the
corresponding paragraphs in the notice to be posted
by adding before "to cease doing business with
Tayloe Glass Company ," the phrase "or any other
person engaged in commerce or in an industry
affecting commerce."
'We agree with the Trial Examiner that the broad order requested by the
General Counsel is not warranted . However, we shall correct the Order
and Notice recommended by the Trial Examiner as required by the
circumstances of the case Plumbers and Pipe Fitters Local Union 142
(Cross Construction Co., Inc.). 169 NLRB No. 113
TRIAL EXAMINER'S DECISION
201
ARTHUR M. GOLDBERG, Trial Examiner: Based upon a
charge filed on July 22, 1969,' by Tayloe Glass Company
(herein called Tayloe or the Charging Party) the
complaint herein issued on August 13 alleging that Iron
Workers Local Union No. 167, International Association
of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO (herein called the Iron Workers or the
Respondent) had violated Section 8(b)(4)(i) and (ii)(B) of
the National Labor Relations Act, as amended (herein
called the Act). The complaint alleged that Respondent by
its picketing of Harmon Construction Company (herein
called Harmon) at its Southern College of Optometry
jobsite in Memphis, Tennessee, from July 22 to 24, and by
other means, including orders, directions, instructions,
requests, and appeals, has induced and encouraged
individuals employed by Harmon and by other persons
engaged in commerce to engage in strikes or refusals, in
the course of their employment, to perform services and
has threatened and coerced Harmon and other persons
engaged in commerce, all with the object of forcing or
requiring Harmon and others engaged in commerce to
cease doing business with Tayloe and to force or require
Tayloe to recognize and bargain with the Respondent as
the representative of Tayloe's employees although
Respondent has not been certified as the representative of
such employees in accordance with the provisions of
Section 9 of the Act. The complaint alleged that at no
time material herein had the Respondent been engaged in
a labor dispute with Harmon or the Southern College of
Optometry. The answer admitted that Respondent had
maintained a lawful picket at the Southern College of
Optometry jobsite on the dates alleged but denied all
material allegations of the complaint.
All parties participated in the hearing in Memphis,
Tennessee, on September 8 and were afforded full
opportunity to be heard, to introduce evidence, to examine
and cross-examine witnesses, and to present oral
argument. Oral argument was waived and briefs were filed
by General Counsel and the Respondent.'
Based upon the entire record in the case, my reading of
the briefs, and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated and I find that Harmon
Construction Company , with its home office in Oklahoma
City, Oklahoma, annually in the course and conduct of its
business operations in Memphis , Tennessee , purchased
and received goods valued in excess of $50,000 directly
from points located outside the State of Tennessee.
Tayloe Glass Company, in the 12 months preceding the
hearing herein , purchased and received at Memphis,
Tennessee , where , among other things, it operates as a
' Unless otherwise noted all dates herein were in 1969.
'On October 9 General Counsel moved to strike portions of
Respondent' s brief pertaining to Business Agent Bevell's statement taken
during the Regional Office 's investigation of the charge herein . General
Counsel argues that such a discussion "is devoid of any competent matter
whatsoever for this Trial Examiner 's consideration ." Bevell testified about
the circumstances surrounding his making said affidavit Accordingly, as
an issue litigated and for what light it sheds on Bevell's credibility , this is a
matter upon which Respondent may properly comment in its brief . General
Counsel ' s motion is denied.
180 NLRB No. 42
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
glass subcontractor , glass and metal products valued in
excess of $50,000 directly from points outside the State of
Tennessee.
I find that Harmon and Tayloe are each and at all
times material herein have been , a person engaged in
commerce or in an industry affecting commerce within the
meaning of Section 8(b)(4)(B) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Iron Workers Local Union No. 167, International
Association of Bridge , Structural and Ornamental Iron
Workers, AFL-CIO, is and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Harmon began work on the Southern College of
Optometry construction project (herein called the
Southern College job or jobsite), a 12-story building, in
January 1968. The only Harmon employees on the
Southern College job are George Skinner, the job
superintendent, and a timekeeper. Tayloe was awarded a
written subcontract for glass installation at Southern
College, including the installation of glass curtain walls.
In performance of its subcontract Tayloe has employed
only members of Glaziers Local 242 with whom Tayloe
maintains a collective -bargaining relationship.
Although Tayloe does not have a contract with the Iron
Workers, on previous occasions when Tayloe was
performing work which it believed fell within the
Respondent's jurisdiction, it has contacted the Iron
Workers and used its members on such projects.
The Tayloe crew began its work at the Southern
College job on February 24, was removed from the job in
April when they caught up with the work of the other
crafts, returned to the jobsite for a period of time in June,
and has worked continuously since July 1.
Approximately 6 weeks before the critical events herein,
George Vincent , Respondent 's then business agent,3 and
his assistant met with John P. Tayloe, the Charging
Party's president, and Winston W. Jackson, Tayloe's
superintendent . Vincent claimed the Tayloe work at the
Southern College for the Iron Workers. Mr. Tayloe
explained that the work had been assigned to the Glaziers
based upon information he had received from the Glaziers
business agent and that once an assignment had been
made it was impossible to shift the work.' Jackson added
that, when he asked why Vincent had not come down to
claim the work, Vincent replied that he was waiting to get
Jackson on a job.
On Friday, July 18, Bevell, Respondent's new business
agent, visited the Southern College job. Accompanied by
the Iron Workers steward, Bevell spoke to C. D. Wyatt,
Tayloe' s superintendent on the jobsite and a member of
Glaziers Local 242. Bevell asked Wyatt if he was aware
that he was doing Respondent's work. Wyatt denied
Bevell's claim and Bevell asked Wyatt to call his business
agent . Wyatt said he would do so, but continued working.
Bevell asked if Wyatt was going to leave, Wyatt said he
would not and Bevell left .' Bevell then went to Harmon's
'Vincent was Respondent ' s business agent until July 3 when he was
succeeded by Lonnie L. Bevell.
'From the credited testimony of John Tayloe
Job Superintendent Skinner's office where, in Skinner's
words, Bevell said "the Glaziers was doing the work and
asked me what we wanted to do about it." Skinner
claimed and Bevell denied that the question of the work
assignment had been settled. Skinner then called Tayloe's
office and arranged for a meeting at the Southern College
jobsite for Monday morning, July 21.6
The July 21 meeting in Skinner's office was attended by
Skinner, Bevell, and Brumley, the Glaziers business agent.
Wyatt was present in an adjoining office, overheard the
discussion, and entered the conversation at only one point.
Skinner opened the meeting by asking if the dispute had
been settled. Brumley said that it had been settled, Bevell
denied that it had. Bevell asked Brumley if he was aware
that he was doing Bevell's work. Brumley denied the claim
and said that, as far as he was concerned, the job
assignment had been settled 2 months before. If Bevell
wanted to continue the dispute, Brumley stated, it should
be processed through proper channels. Skinner attempted
to reach the National Joint Board office in Washington,
D.C., where jurisdictional disputes are adjusted, but was
unable to do so. After Skinner and Brumley held a private
discussion, Bevell returned and, in Skinner's words, said
that "he wasn't going off half cocked on this deal and he
wanted to know what he was going to be doing when he
did it." Skinner asked what Bevell was planning to do, to
which Respondent' s business agent replied, "I think you
have been around long enough to know."
Skinner asked Bevell to read the "Green Book" which
barred stoppages and said that he could not have a work
stoppage because Harmon was months behind schedule on
the Southern College ,lob.
Skinner then called his superiors in Oklahoma City and
was instructed to call Tayloe to request that Tayloe
remove its men from the job for a few days until the
dispute was settled. Tayloe refused to do so, saying that
the business agent would not permit them to move the
men. Skinner then asked Brumley, the Glaziers business
agent, if he would agree to removal of the Tayloe crew.
Brumley refused the request, because he said to do so
would amount to an admission that the work was that of
the Iron Workers.
Bevell then stated that he would do everything in his
power to get the Tayloe crew off the work. The meeting
ended when Bevell asked Skinner if the Glaziers were
going to be doing his work. Skinner replied that he did
not know, that Bevell had heard Skinner call his boss in
Oklahoma City, and that Skinner was expecting to hear
further from Tayloe.'
Later that day Skinner heard from his superiors in
Oklahoma City who had spoken to Tayloe It was
Skinner's understanding that Tayloe had agreed to remove
its crew for a period of time while attempts were made to
settle the controversy.
Skinner arrived at the jobsite on July 22 at or about
7:30 a.m. When he discovered Wyatt, Tayloe's foreman at
the jobsite, Skinner asked what Wyatt was doing there, as
Skinner understood from his talk with Oklahoma City
that the Tayloe crew would be taken off the job. Wyatt
replied that he had not been instructed not to work at the
Southern College. Skinner called Tayloe and was advised
'From Wyatt 's credited testimony . Bevell admitted a conversation on
July 18 with a glazier at the jobsite.
'From Skinner's credited testimony . Bevell admitted that he "might"
have asked Skinner what was going to be done about the situation.
'The foregoing account of the July 21 meeting is used on a synthesis of
the credited testimony of Skinner , Brumley, and Wyatt.
IRON WORKERS LOCAL 167
that the Glaziers business agent would not permit Tayloe
to leave the job. Skinner then attempted to reach Bevell
but learned that Respondent's business agent was on his
way to the Southern College jobsite.
When Bevell arrived at the Southern College at or
about 8 a.m., he went directly to the sixth floor where the
Tayloe men were working. Observing Wyatt at work with
Glaziers Business Agent Brumley standing by, Bevell
turned away and went to Skinner's office. In Skinner's
words, "Bevell stuck his head in the door and said well, I
see they are working and I said, yes." Bevell shut the
office door and left. Skinner called after Bevell but the
latter just walked on out.
A short time later pickets appeared at the jobsite
bearing picket signs prepared at Bevell's instruction. The
picket signs read:
Notice to public. Wages and working conditions being
paid on this project by Tayloe Glass Company are
helping to undermine and destroy the Iron Workers in
the.... I
The Iron Workers on the job left immediately after the
pickets appeared. The plumbers and operating engineers
left later in the day. On July 23 only Glaziers reported for
work at the Southern College job.
The instant charge was filed on July 22.
Early in the morning of July 24 Bevell called Tayloe
and told John Tayloe that, if the Charging Party would
take steps to withdraw its charge filed with the Board,
Bevell would remove the pickets. Tayloe replied that he
could not promise to effectuate a withdrawal as he did not
know if he had authority to do so but would attempt to
quash the proceedings. Further, Tayloe told Bevell that, if
he would remove the pickets, Tayloe would call in Bevell
and Brumley to settle work assignments on future jobs
where jurisdiction was in question. Bevell told Tayloe that
he considered this a fair deal and that he would remove
the pickets.'
Within minutes of the Bevell-Tayloe conversation on
July 24, the pickets were removed and all crafts returned
to work on the Southern College job.
B. Conclusions and Findings
I find that by Bevell's conduct on July 18, 21, and 22
Respondent enmeshed Harmon, a secondary employer, in
its dispute with Tayloe. Thus, on July 18 after
determining that Tayloe's Glazier employees were
performing work claimed by the Iron Workers, Bevell
went to Harmon, not Tayloe, told Skinner, Harmon's
superintendent, that "the Glaziers was doing the work and
asked [Skinner] what [Harmon] wanted to do about it."
At the July 21 meeting after it was suggested that the
Joint Board machinery for resolution of jurisdictional
disputes without work stoppages be followed Bevell
instead said that he was not going to go "off half cocked
on this deal and he wanted to know what he was going to
be doing when he did it." He further told Skinner that the
latter had "been around long enough to know" what
Bevell was planning to do . Following this Bevell said he
would do all in his power to get the Glaziers off the job
and again asked Harmon, the secondary 's superintendent,
'The parties stipulated to the quoted language of the picket signs but
were unable to agree on the last two words of the text.
'The foregoing account of the Tayloe-Bevell conversation is based on
John Tayloe's credited testimony. Bevell testified that Tayloe had called
him with an offer to take the Glaziers off the job if Bevell would remove
the pickets. I do not credit Bevell's version of the conversation.
203
if the Glaziers would be doing Iron Workers work.
Finally, on July 22, after ascertaining that the Glaziers
were still performing the disputed work , Bevell went to
Skinner and stated " I see they are working," leaving
Skinner ' s office to set up the picket line . At no time did
Bevell bring a complaint about the work assignment to
Tayloe , the primary Employer , but instead addressed all
inquiries and requests that the Glaziers be removed from
the job to the secondary employer . Further, I find that, in
the context of his rejection of the established procedure
for resolution of work disputes, Bevell 's statement that
while he would not go off "half cocked " Skinner had been
around long enough to know what Bevell planned to do
constituted a threat of direct action , in this case the
picketing which followed . Wells v. N.L.R.B., 361 F.2d
737, 742 (C.A. 6).
Having found that in the meeting of July 21 Bevell
stated that he would do everything in his power to get the
Tayloe Glazier crew off the job and that coupled with this
declaration of object was a veiled threat to picket the
Southern College job, I find that on July 21 the
Respondent threatened and coerced Harmon with the
object of causing Harmon to cease doing business with
Tayloe in violation of Section 8(b)(4)(ii)(B).
As the Board stated in Local 3 , International
Brotherhood of Electrical Workers , AFL-CIO (New York
Telephone Company ), 140 NLRB 729, 730, enfd. 325
F.2d 561 (C.A. 2):
While it does not appear that Respondent explicitly
demanded that [Harmon ] cancel the [Tayloe] contract
if [Tayloe] refused to use its members , this was the only
alternative [Harmon] had if [Tayloe] continued to
refuse replacement of its employees by members of
Respondent . We conclude , therefore , that Respondent's
threat to [ Harmon] had an object of forcing [Harmon]
to cease doing business with [Tayloe ]. Even assuming,
arguendo , that Respondent did not consciously
contemplate imposition of this sanction, it is
nonetheless clear that Respondent sought by its threat
to require that [Harmon ] superimpose upon its existing
agreement with [Tayloe] an added condition of
performance , that the work had to be done by
Respondent ' s members . Acceptance of this condition by
[Tayloe] would require [Harmon ] to cease doing
business with [Tayloe ] on the basis of their original
arrangement . The objective of causing such a disruption
of an existing business relationship, even though
something less than a total cancellation of the business
connection, is a "cease doing business" object within
the meaning of Section 8(b)(4)(B ) of the Act . [Footnote
omitted.]
Further , under the teaching of International
Brotherhood of Electrical Workers , Local 11 (L.G.
Electric Contractors , Inc.), 154 NLRB 766, I find that
Respondent ' s picketing of the Southern College jobsite
also violated Section 8 (b)(4)(B) of the Act since one of its
objectives was illegal . The picketing does not stand in
isolation and an examination of its entire course of
conduct discloses that Respondent would not have been
satisfied if Tayloe had maintained for its Glazier
employees the standards of employment prescribed by the
Iron Workers but wanted nothing less than replacement of
those Glazier employees by members of the Iron Workers.
As in L . G. Electric , it is impossible to separate the
picketing from ' Bevell ' s accompanying statements
explaining the purpose of the picketing and how Harmon
could obtain its end.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find that Respondent's conduct violated
the provisions of Section 8(b)(4)(i) and (ii)(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 connection with Employers' operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
.iav ►ng found that the Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
In his brief General Counsel argues "that a broad cease
and desist order is the only appropriate remedy." In
support of this requested relief General Counsel relies on
Respondent's actions in the instant proceeding and points
to one prior case, an unreported one in which the Board
adopted the Trial Examiner's findings and conclusions on
a motion for summary judgment.10 General Counsel asks
for such a broad order "to prevent Respondent from
committing future violations in its disputes with Tayloe
and other primary employers." The evidence does not
bear out the contention that Respondent had "disputes"
with Tayloe To the contrary, John Tayloe's testimony
establishes that on prior occasions Tayloe had utilized
Iron Workers members on its projects although Tayloe
does not maintain a collective-bargaining relationship with
Respondent." Moreover, I do not find that the violations
set forth above warrant such a sweeping remedy. In
essence General Counsel is requesting that the remedy
here encompass employers whose activities are not within
the scope of Respondent's actions in this proceeding.
Communications Workers of America v. N.L.R B, 362
U.S. 479.
On the basis of the foregoing findings of fact, and on
the entire record in this case, I make the following-
CONCLUSIONS OF LAW
1. Harmon Construction Company and Tayloe Glass
Company are each engaged in commerce within the
meaning of the Act.
2. Iron Workers Local Union No. 167, International
Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By engaging in certain conduct referred to
hereinabove in section III, the Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the Act.
"Local 167, International Association of Bridge, Structural and
Ornamental Iron Workers , AFL-CIO (Rebel Erectors ). Case 26-CC-124,
TXD-126-68.
"In view of this prior relationship and since there is no record evidence
that Respondent, in seeking displacement of the Glaziers at the Southern
College job and substitution of Iron Workers, sought to vary the past
practice of Tayloe employing Iron Workers members without recognition
of or bargaining with Respondent by Tayloe, I find that General Counsel
had failed to establish that an object of Respondent 's conduct herein was
to force or require Tayloe to recognize and bargain with Respondent.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Iron Workers Local Union No. 167, International
Association of Bridge , Structural and Ornamental Iron
Workers, AFL-CIO, its officers , agents, and
representatives , shall:
1. Cease and desist from:
(a) Threatening , coercing , or restraining Harmon
Construction Company, or any other person engaged in
commerce or in an industry affecting commerce where an
object thereof is forcing or requiring Harmon
Construction Company to cease doing business with
Tayloe Glass Company.
(b) Engaging in, or inducing or encouraging individuals
employed by Harmon Construction Company, or any
other person engaged in commerce or in an industry
affecting commerce , to engage in, a refusal in the course
of their employment to perform any services where an
object thereof is to force or require Harmon Construction
Company to cease doing business with Tayloe Glass
Company.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at its offices in Memphis , Tennessee , copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's
authorized representative , shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by the Respondent for 60 consecutive days
thereafter , 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) Promptly after receipt of said notices return signed
copies thereof to the Regional Director for posting by
Harmon Construction Company and Tayloe Glass
Company, if they be willing, at their respective places of
business , including all places where notices to employees
are customarily posted.
(c) Notify said Regional Director , in writing , within 20
days from the receipt of this Decision , what steps have
been taken to comply herewith "
"In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided ;n Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes . In the event
that the Board's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify the Regional Director for
Region 26 , in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
IRON WORKERS LOCAL 167
APPENDIX
NOTICE TO MEMBERS
Posted by Order of the National Labor Relations
Board, an agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the law and has ordered
us to post this notice and keep our word about what we,
say in this notice.
WE WILL NOT threaten, coerce, or restrain Harmon
Construction Company, or any person engaged in
commerce, with the object of forcing or requiring
Harmon Construction Company to cease doing business
with Tayloe Glass Company.
WE WILL NOT engage in, or induce or encourage
individuals employed by Harmon Construction
Company, or any other person engaged in commerce or
in an industry affecting commerce, to engage in, a
refusal in the course of their employment to perform
any services where an object thereof is to force or
205
require Harmon Construction Company to cease doing
business with Tayloe Glass Company.
Dated By
IRON WORKERS LOCAL
UNION No. 167,
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL AND
ORNAMENTAL IRON
WORKERS, 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 compliance
with its provisions may be directed to the Board's Office,
746 Federal Office Building, 167 North Main Street,
Memphis, Tennessee 38103, Telephone 901-534-3161.