Local 169

National Labor Relations Board - Board Decisions

Aug 7, 1958

121 N.L.R.B. 308 (N.L.R.B. 1958)

M DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
6. Because no exceptions have been filed to the Regional Director's
recommendation that the Employer's objection Number 2 be over-
ruled, we shall adopt that recommendation.
As we have overruled the objections to the election, and as the tally
of ballots shows that the Petitioner received a majority of the valid
ballots cast, we shall certify the Petitioner as the collective-bargaining
representative of the employees in the appropriate unit
[The Board certified Textile Workers Union of America, AFL-CIO,
as the designated collective-bargaining representative of the employees
of the Employer in the appropriate unit.]
Local 169, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and Carpenters District Council of Tri-
Counties, Illinois and W. H. Condo, Brick Contractor, and
Mason Contractors' Association of East St. Louis. Case No.
14--CD--65. August 7,1958 1
DECISION AND ORDER
On April 16,1958, Trial Examiner Eugene F Frey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certauui unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the,
Intermediate Report attached hereto Thereafter, the Respondents
filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in, connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed-the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed
The rulings are hereby affirmed The Board has considered the
Intermediate Report, the exceptions, and the entire record in this
case and hereby 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 Respondents , Local 169, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, and
Carpenters District Council of Tn-Counties , Illinois , and their re-
spective officers, representatives , agents, successors , and assigns, shall:
121 NLRB No 56
LOCAL 169 309
1. Cease and desist from engaging in, or inducing or encouraging
the employees of W. H. Condo, Brick Contractor, or of any other
member of Mason Contractors' Association of East St. Louis, or
the employees of any other employer to engage 'in, a strike or con-
certed refusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any goods, articles,
materials, or'commodities or to perform any services, where an object
thereof is to force or require W. H. Condo, Brick Contractor, or any
other employer to assign particular- work to employees who are mem-
bers of Local 169 rather than to other employees, except insofar as
any such action is permitted under Section 8 (b) (4) (D) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post ' at each of the Respondents' respective business offices
copies of the notice attached to the Intermediate Report marked
"Appendix A." 1 Copies of said notice, to be furnished by the Re-
gional Director for the Fourteenth Region, shall, after being duly
signed by their respective official representatives, be posted immedi-
ately and maintained by the Respondents for a period of sixty (60)
consecutive days thereafter, in conspicuous places, including all
places where notices to members of the Respondents are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, as to the
steps the Respondents have taken to comply herewith.
1 This notice , however , shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner" and substituting in
lieu thereof the words "A Decision and Order ." 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."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On August 21, 1956 , and subsequent dates, original and amended charges were
filed in this case by W. H. Condo, Brick Contractor,' and Mason Contractors'
Association of East St . Louis,2 ' with the Regional Director for the Fourteenth
Region, which alleged that Local 169, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, herein called Local 169 , and Carpenters Dis-
trict Council of Tri-Counties , Illinois, herein called the District Council (both
labor organizations being called herein collectively the Respondents ), had engaged
in certain activities described below and proscribed by Section 8 (b) (4) (D)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Pursuant to Section 10 (k) of the Act and appropriate Rules and Regulations
of the Board , the Regional Director investigated the charges , and a hearing was
'Hereinafter referred to as Condo. _
2 Hereinafter referred to as Association.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held on November 14, 1956, on due, notice to all parties, before a hearing officer
of the Board, for the purpose of determining the dispute out of which the charges
had arisen. All parties except International Hod Carriers, Building and Com-
mon Laborers Union of America, Local 454, AFL-CIO, hereinafter called the
Hod Carriers, appeared and participated in that hearing. On December 12,
1957, the Board issued its Decision and Determination of Dispute,3 in which it
found that a dispute determinable under Section 10 (k) of the Act was properly
before it, and determined that both Respondents "are not and have not been law-
fully entitled to force or require W. H. Condo, Brick Contractor, or any employer
member of the Association, to assign the work of erecting or dismantling scaffold-
ing to employees who are members of Local 169 rather than to employees assigned
by W. H. Condo, Brick Contractor, or any other employer member of the Asso-
ciation, to perform such work." The Board also ordered Respondents to notify
the Regional Director aforesaid, in writing, within 10 days from the date of its
Decision, whether they would accept the Board's Determination of Dispute, and
would "refrain from forcing or requiripg W. H. Condo, Brick Contractor, or any
employer member of the Association by means proscribed by Section 8 (b) (4)
(D) of the Act to assign the work in dispute to members of Local 169 rather than
to other employees assigned to perform the work by their employers." _
On February 4, 1958, the General Counsel of the Board issued a complaint
herein against the Respondents, alleging that in August 1956, at two construction
projects described hereafter, Respondents induced employees of Condo to engage
in a work stoppage, the object of which was to force or require Condo to assign
the erection and dismantling of scaffolding to employees who are members of Local
169 rather than to employees to whom Condo had assigned such work, and that
since December 12, 1957, Respondents had failed and refused to comply with
the Board's Decision and Determination of Dispute of that date, all in violation
of Section 8 (b) (4) (D) of the Act: Respondents duly filed answer, admitting
the issuance of the Decision and Determination of Dispute, but charging that all
proceedings in Case No. 14-CD-65 had been without authority in law and the
said Decision and Determination of Dispute was in terms contrary to the Board's
Rules and Regulations, and denying that they had committed any unfair labor
practices as charged.
Pursuant to notice, a hearing was held before the duly designated Trial Examiner
on February 18, 1958, at St. Louis, Missouri, in which all parties noted above
appeared by counsel and participated in the hearing, and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, to adduce evidence
bearing on the issues, and to present oral argument and file briefs, and proposed
findings of fact and conclusions of law, or both. No testimony by witnesses was
adduced by any party, as all agreed that all pertinent evidence bearing on the is-
sues had been adduced in the prior Section 10 (k) proceeding, the record of which
becomes part of the record in this proceeding under Board Rules and Regulations,
Section 102.75 as worded at the time of the hearing herein.4 At the close of the
hearing, Respondents' motion to dismiss the complaint was taken under consid-
eration. I now deny it for reasons which will appear below. Respondents and
the Charging Parties presented oral argument. Written briefs were filed with the
Trial Examiner by counsel for the General Counsel and the Charging Parties.
Upon a consideration of the entire record in the case, which includes the entire
record in the prior proceedings in Case No. 14-CD-65 held under Section 10 (k)
of the Act, and the arguments of counsel, I make the following:
FINDINGS OF FACT
I. THE RESPONDENTS
Local 169 and District Council are labor organizations within the meaning of
Section 2 (5) of the Act.
IT. BUSINESS OF THE EMPLOYER
Condo is a partnership existing under the laws of the State of Illinois and main-
tains its principal office and place of business in East St. Louis, Illinois, where it
is engaged in the brick and masonry contracting business. It is a member of the
3119 NLRB 726.
1 The Board Rules discussed herein are those contained In Series 6 9f the Board's
Rules and Regulations, effective as of February 1,1956, and still in effect at the time
of the hearing herein
LOCAL 169 311
Association, which is an unincorporated association of brick and masonry con-
tractors organized for the purpose of collective bargaining with labor organiza-
tions for its members. During the period from April 1, 1955, to March 31, 1956,
Condo, in the course of its business, furnished goods or services valued in excess
of $100,000 to enterprises which shipped goods or furnished services valued in
excess of $50,000 to States other than the States in which they are located. Upon
the foregoing facts the Board found in its Decision and Determination of Dispute
aforesaid, and I likewise find, that Condo is engaged in interstate commerce within
the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The facts
Under the Board's Rules and Regulations, Section 102.75, the entire record,
including the transcript of testimony, in the proceeding under Section 10 (k) are
made part of the record herein. In the Section 10 (k) proceeding the parties
here involved stipulated that the transcript of the record with all exhibits in a prior
proceeding in Case No. 14-CC-97 should become part of the record therein. Since
no new evidence has been adduced by any party, the findings below are in part a
repetition of findings made by the Board in the proceeding under Section 10 (k),
supplemented by my own findings on the records in both proceedings to the ex-
tent that the Board made no specific findings thereon.
In August 1956, Condo was engaged on a project for the construction of a new
high school in East St. Louis. The general contractor on the job was J. J. Altman
and Co., hereinafter called Altman. On August 8 or 9, 1956, pickets for Local 169
appeared at the project carrying signs which read:
On Strike the Carpenters, Local Union 169, contractor refusing to recognize
rulings of National Joint Board for Settlement of Jurisdictional Dispute.
The pickets appeared at several truck entrances to the project, including one 5
which was used by Condo employees and was nearest to the area of the project in
which they were working. It is conceded that Condo is the "contractor" referred
to in the plant sign. About a week before the picketing began, when Condo's
bricklayers and hodcarriers began the brickwork, Condo's bricklayer foreman,
Wayne A. Mueller, was approached by Gray Hodge, the union steward for Altman's
carpenters on the project, who claimed he was going to build the scaffolding, which
had to be built about 23 feet high. Shortly after, Eugene P. Clayton, business
agent of Local 169 and a delegate to the District Council, accompanied by Robert
Curtis, assistant business agent of Local 169, and Hodge, approached William
Waters, the Condo Hod Carrier foreman, and told him that he "wanted to make
a jurisdictional dispute" about the scaffolding, and was also going to advise the
bricklayer foreman. Clayton then sought out Mueller on the job and told him
that "we are in dispute . . . about the scaffolding." Mueller told him to notify
the business agent of the bricklayers and hodcarriers. After the picketing began,
Condo's bricklayers continued to work until an unspecified date thereafter, when
the flow of materials to the project ceased due to the failure of trucks delivering
materials to come through the picket line. On this point, Waters also testified
without contradiction in Case No. 14-CC-97 as follows:
Q. Did you employees-did subcontractors or others use the entrance of
E-1?-A. Yes.
Q. You said before the picket line was established they used both en-
trances?-A. Yes.
Q. After the picket line was established, they didn't come to work, did
they?-A. No, sir.
During August 1956, Condo's employees also worked on construction of an
office, garage, and truck shelter for Union Electric Company at French Village,
Illinois. The general contractor on this job was William H. and Nelson Cunliff
Company, hereinafter called Cunliff. On August 21, 1956, Knute Campbell,
Cunliff's superintendent on the job, appeared and picketed at the only entrance to
the project carrying a picket sign bearing the same legend as the signs carried at the
high school project. It is conceded that Campbell picketed the project at the
direction of Local 169, and that the picketing was in furtherance of a dispute between
Local 169 and Condo. About 4 or 5 days after Campbell started picketing, an
inspector for Union Electric Company asked Campbell to move his picketing to
6 It is designated as entrance E-1 on General Counsel's Exhibit No. 3 in Case No.
14-CC-97.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another point closer to the specific area in which Condo employees were working
"so that . . . the other crafts could work on the other part of the building."
Campbell refused to move without consulting his business agent. Thereafter, he
continued picketing in the same place.
The picketing at both projects continued until October 1, 1956, when enjoined
by the United States District Court under Section 10 (1) of the Act.
Local 169 conceded in the prior proceedings that at the time of the picketing
aforesaid it had a current dispute with Condo concerning the erection of scaffolding,
and that it caused the picketing of these projects for the purpose of causing the
reassignment by Condo of the construction of such scaffolding. I find on the
basis of the above facts, concessions and testimony that in August 1956, Local 169
induced and encouraged employees of Condo and other employers to engage in a
work stoppage,6 the object of which was to force or require Condo to assign the
construction and dismantling of scaffolding to its employees who were members of
Local 169 rather than to employees who were members of the Hod Carriers, to
whom Condo had assigned such work.?
On January 13, 1958, Local 169 sent the Regional Director for the Fourteenth
Region a letter formally refusing to comply with the Board's Decision and Deter-
mination of December 12, 1957. Respondents concede that the letter should be
considered as having been sent on behalf of, and stating the position of, the
District Council as well.
B. The contentions of Respondents
Respondents make three points in support of their refusal to comply with the
Board's Decision and Determination of Dispute.
1. Lack of certification by the Board
Respondents say that they need not comply with the Decision and Determination
of Dispute because the Board therein never issued a "certification" indicating which
labor organization, if any, was entitled to the scaffolding work, as required by the
terms of the Act and its own Rules; hence, the Board did not comply either with
the law or its own Rules issued thereunder, and its Decision is fundamentally
defective in that respect. Section 10 (k) of the Act provides, in pertinent part,
that, when a charge of violation of Section 8 (b) (4) (D) of the Act has been
filed, "the Board is empowered and directed to hear and determine the dispute out
of which such unfair labor practice shall have arisen, unless, within ten days
9 Even if the record lacked proof that the picketing actually succeeded in inducing
employees to engage in a work stoppage or refusal to perform services, that is not con-
trolling, for such picketing, for a proscribed objective, necessarily invites employees to
make common cause with the strikers and hence amounts to inducement and encourage-
ment of employees within the meaning of Section 8 (b) (4) of the Act. Dallas General
Drivers, etc, Local 745 (Associated Wholesale Grocery of Dallas, Inc ), 118 NLRB
1251.
11 note that in Case No 14-CC-97, the Board dismissed the complaint by its Decision
and Order of November 25, 1957 (119 NLRB 583), in which it adopted the findings,
conclusion, and recommendations of the Trial Examiner who, among other things, con-
cluded that the record before him was lacking in facts sufficient to show that Union
Electric Company was engaged in commerce or that it would effectuate the purposes of
the Act to assert jurisdiction over it Although the General Counsel specifically excepted
to this finding, the Board adopted it in its Decision without specific mention or discus-
sion thereof. However, the Trial Examiner did find that Condo, Altman, and Smith
Brennan Pile Company, another subcontractor working on the high school job, were en-
gaged in commerce In its subsequent Decision and Determination of Dispute herein,
while the Boaid asserted jurisdiction only on the basis of its finding that Condo was
engaged in commerce, it based its Decision and remedy on facts relating to both the high
school and Union Electric Company projects Since it found, as I must find here, that
Respondents' activities at both projects were directed at the same primary employer,
Condo, for an object proscribed by the Act, and in furtherance of the same dispute with
that employer, I conclude that the lack of jurisdictional facts as to Union Electric
Company, the secondary employer at one project, does not affect the power of the Board
to take jurisdiction and deal under Section 8 (b) (4) with a pattern of secondary boy-
cott action where at least one of several victims of that action meets the Board's juris-
dictional standards. Commission House Drivers, etc. Local 400, et als. (Euclid Foods,
Inc.), 118 NLRB 130.
LOCAL 169 313
after notice that such charge has been filed, the parties to such dispute submit to
the Board satisfactory evidence that they have adjusted , or agreed upon methods
for the voluntary adjustment of, the dispute." It should be noted that the mandate
-of the statute is broad, and does not in terms require any type of "certification."
However, Section 102.73 provides, in pertinent part, that, after a hearing (under
.Section 102.72), "the Board shall proceed . . . forthwith . . '. to certify-the labor
organization or the particular trade , craft , or class of employees, as the case may
be, which shall perform the particular work tasks in issue, or to make other dispo-
sition of the matter." In its Decision and Determination aforesaid, the Board
,did not issue an affirmative "certification," awarding the work in question to the
Hod Carriers, but found that Local 169 "was not and is not lawfully entitled to
force or require Condo to assign such work to members of Local 169 rather than
to its employees who are members of the Hod Carriers." It then added, "However,
we are not, by this action, to be regarded as 'assigning' the work in question to
the Hod Carriers." Respondents claim that Section 102.73 requires either a "negative"
certification, to the effect that no labor organization, or trade, craft, or class of
employees is entitled to the work, or an "affirmative" certification that a specific
anion, or trade, craft , or class is so entitled . I conclude that the Board 's finding
and determination quoted above amounts to a "negative " certification , at least so far
-as Local 169 and its members are concerned; and that appears to be sufficient under
the Act, since only Local 169 and its members, and the District Council with which
they are affiliated, are engaging- in the activities complained of. As to the need
for an "affirmative" certification, the Board has considered and consistently rejected
the same contention in similar cases arising under Sections 10 (k) and 8 (b) (4)