Local 20, Sheet Metal Workers Int'l Association

National Labor Relations Board - Board Decisions

Jul 11, 1961

132 N.L.R.B. 73 (N.L.R.B. 1961)

LOCAL 20, SHEET METAL WORKERS INT'L ASSOCIATION 73
against whom the plan would be initiated. The instant conduct of Respondents was
illustrative of conduct planned against other Minneapolis stores . Our recommenda-
tion for a broad order is therefore appropriate to the circumstances.
Upon the basis of the foregoing findings of fact, conclusionary findings, and upon
the entire record in the case , we make the following:
CONCLUSIONS OF LAW
1. Minneapolis House Furnishing Company and Allied Central Stores, Inc., of
Missouri d/b/a L . S. Donaldson Company are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Upholsterers Frame & Bedding Workers Twin City Local No. 61, affiliated
with Upholsterers International Union of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By picketing Minneapolis House Furnishing Company and L. S. Donaldson
Company on November 30 and December 1, 1959, respectively , and by publicizing
plans to picket on November 26, 1959 , Respondent induced and encouraged indi-
viduals employed by Minneapolis House Furnishing Company and L. S. Donaldson
Company and more specifically supervisors , other than corporate officers , employed
by said companies who determined or effectively influenced the purchasing policies
of said companies with respect to furniture and bedding , to refuse in the course of
their employment to use , process, transport , or otherwise handle or work on any
furniture and bedding products of manufacturers located outside the Minneapolis-
St. Paul area , or to perform any services in connection with such products with an
object of forcing or requiring Minneapolis House Furnishing Company, L. S.
Donaldson Company, or any other Minneapolis retail store to enter into an agree-
ment prohibited by Section 8(e) of the Act; with a further object of forcing or
requiring Minneapolis House Furnishing Company , L. S. Donaldson Company, and
other Minneapolis retail stores to cease using , selling , handling, transporting, or
otherwise dealing in the furniture and bedding products of manufacturers located
outside the Minneapolis -St. Paul area , or to cease doing business with such manu-
facturers . Respondent by the foregoing conduct engaged in unfair labor practices
within the meaning of Section 8(b)(4)(i )(A) and (B) of the Act.
4. By picketing Minneapolis House Furnishing Company , L. S. Donaldson Com-
pany on November 30 and December 1, 1959 , respectively, and by publicizing plans
to picket on November 26, 1959, Respondent threatened , coerced , and restrained
Minneapolis House Furnishing Company and L. S. Donaldson Company and their
agents with an object of forcing or requiring Minneapolis House Furnishing Com-
pany, L. S. Donaldson Company, and other Minneapolis retail stores to enter into
an agreement prohibited by Section 8(e) of the Act; with a further object of forcing
or requiring Minneapolis House Furnishing Company, L . S. Donaldson Company,
and other Minneapolis retail stores to cease using , selling, handling , transporting,
or otherwise dealing in the furniture and bedding products of manufacturers located
outside the Minneapolis-St. Paul area , or to cease doing business with such manu-
facturers . Respondent by the foregoing conduct engaged in unfair labor practices
within the meaning of Section 8(b) (4) (ii ) (A) and ( B) of the Act.
5. By leaflets distributed on November 30 and December 1 , 1959 , Respondent did
not engage in unfair labor practices within the meaning of Section 8(b) (4) (ii) (A)
or (B) of the Act.
6. The unfair labor practices aforesaid are unfair labor practices within the mean-
ing of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
Local 20, Sheet Metal Workers International Association, AFL-
CIO and Bergen Drug Company , Inc. Case No. 02-CC-94.
July 11, 1961
DECISION AND ORDER
On November 8, 1960, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, recommend-
132 NLRB No. 4.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing that the complaint be dismissed in its entirety, as set forth in the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel and the Respondent filed exceptions to the Intermediate Report
and briefs in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Leedom].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case , and finds merit in the exceptions filed by the General Counsel.
Accordingly, the Board hereby adopts the findings of the Trial Exam-
iner only to the extent consistent with the following :
Bergen Drug Company, the Charging Party, entered into a con-
tract with Hull Construction Company, a general contractor, for the
construction of a warehouse at South Brunswick, New Jersey. Except
for minor work, the building was virtually completed by July 26,
1960. Bergen also contracted with Robert P. Rudy Co. for the pur-
chase and installation of metal shelving for the warehouse. Rudy in
turn subcontracted the installation of the shelving to Eastern Locker
Repair Company.
A letter from Rudy to Bergen, dated June 22, 1960, set forth the
following in connection with the installation agreement :
I have also made arrangements for nonunion labor to start instal-
lation of this shelving on July 5th .... We would appreciate
your confirmation of this order for the nonunion labor. [Empha-
sis supplied.]
Bergen subsequently agreed to the employment of nonunion labor
on June 24, when it confirmed its order to Rudy in accordance with
the letter.
Between July 19 and July 26, 1960, three nonunion employees of
Eastern Locker Repair were engaged in the installation of the shelv-
ing at Bergen's warehouse. On July 26, Milton Hull, a partner in
Hull Construction Company discovered Mr. Ryan, Respondent's busi-
ness agent, at the warehouse. Ryan told Hull that he had found non-
union men installing shelving at the warehouse and planned to picket
the job on July 27.
At about 7:45 a.m. on July 27, two pickets appeared at the two
driveway entrances to the warehouse, carrying signs with the follow-
ing inscription :
LOCAL 20, SHEET METAL WORKERS INT'L ASSOCIATION 75
SHEET METAL
WORKERS .
ARE NOT PROTECTED
BY UNION WAGES
AND. CONDITIONS
L.U. 20, S.M.W.L.U.
The picketing continued on July 28, 29, and August 1. On each
day picketing occurred between the hours of 7:45 a.m. and 3 :30 p.m.
At the time the picketing began, Edward S. Cardinali, Bergen's
warehouse superintendent, was in the building. In addition, it is un-
disputed that an electrician, a carpenter, and a tileman, all employees
of Hull subcontractors,, saw the picketing soon after reporting to
work in the warehouse at about 8 a.m., on July 27, and left the ware-
house premises. At about 8:30 a.m. on the first morning of the picket-
ing, three employees of Eastern Locker noticed the picket line while
approaching the warehouse and did not cross it. Thereafter no em-
ployee of Eastern returned to the plant. The installation of shelving
was completed by Bergen's employees. Roy B. Dey, an employee of
New Jersey Bell Telephone Company, came to the warehouse on either
July 27 or 28 to install a telephone. As he approached the plant he
noticed a picket. Dey asked the picket if it was "all right to cross."
The picket replied, "I'd rather you didn't." Dey turned away and
proceeded to his next order. According to Cardinali's uncontradicted
testimony two electricians of Allan Electric Company drove to the
warehouse at about 8 a.m. on July 27, spoke to a picket and did not
enter the warehouse.
The complaint alleged that Respondent had violated Section 8(b)
(4) (i) (B) of the Act by inducing individuals employed by secondary
persons engaged in commerce or in industries affecting commerce to
refuse to perform services for their employers, for proscribed objec-
tives, and Section 8(b) (4) (ii) (B) by threatening, coercing, and re-
straining secondary persons for proscribed objectives.a
1 Allan Electric Company, Wood -Art, Inc., and Harry,-Rich Floor, Inc.
' Section 8(b) provides:
It shall be an unfair labor practice for a labor organization or its agents-
(4)(i) to engage in, or to induce or encourage any individual employed by any
person engaged in commerce or in an industry affecting commerce to engage in, a
strike or a refusal in the course of his employment to use, manufacture , process,
transport, or otherwise handle or work on any goods , articles , materials , or com-
modities or to perform any services ; or (ii ) to threaten , coerce, or restrain any
person engaged in commerce or in an industry affecting commerce, where in either
case an object thereof is :
• • • • s • •
(B) forcing or requiring any person to cease using , selling, handling, trans-
porting, or otherwise dealing in the products of any other producer , processor; or
manufacturer , or to cease doing business with any other person, or forcing or
requiring any other employer to recognize or bargain with a labor organization
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner recommended dismissal on two grounds: (1)
that the record lacks evidence that any of the alleged secondary em-
ployers were persons engaged in commerce; and (2) that the Charg-
ing Party and Rudy had agreed to employ nonunion labor in the in-
stallation of the shelving. On the first point, the Trial Examiner
stated that the "only evidence as to commerce in the record relates to
Bergen, the Charging Party, and to Hull, the general contractor."
He also declared that present Board policy obliged him to apply cur-
rent jurisdictional standards in determining whether or not a sec-
ondary employer is "engaged in commerce" for purposes of finding
violations under Section 8(b) (4) (i) and. (ii) (B) of the Act. On the
second point, the Trial Examiner asserted that "it would offend and
negate public interest and the purposes of the Act to issue a remedial
order perpetuating Bergen's unlawful policy...."
. The Trial Examiner's interpretation of Section 8 (b) (4) fails to give
full scope,to its language. That section requires that a secondary em-
ployer be "engaged in commerce" or in "an industry affecting com-
merce." Thus, the fact that the secondary employer is not itself
"engaged in commerce" is immaterial if it is in fact engaged "in an
industry affecting commerce." The Trial Examiner considered rele-
vant only the first.of these terms, "engaged in commerce." In this he
was in error. Hull's subcontractors, the employers of the employees
who were induced not to cross the picket line, and Robert P. Rudy
Co., are all engaged in the building and construction industry. This is
an "industry affecting commerce" within the meaning of the statute a
We also take judicial notice of the fact that New Jersey Bell Telephone
Company is engaged in the communications industry which is an "in-
dustry affecting commerce." Accordingly, we find. contrary to the
Trial Examiner, that the secondary employers are "person[s] engaged
in commerce or in an industry affecting commerce" within the meaning
of Section 8(b) (4). We shall therefore consider the- details of Re-
spondent's alleged unlawful conduct.
As stated, Respondent discovered that Eastern Locker Repair Com-
pany was employing nonunion men to install metal shelving at Ber-
gen's warehouse. It appears from the record that the Respondent
wanted its members to install the shelving. We therefore find, con-
trary to the Trial Examiner, that Respondent's dispute was with the
nonunion subcontractor, Eastern Locker Repair Company, and that
Bergen was a secondary employer. We also find that Hull and its
as'the representative of his employees unless such labor organization has been
certified as the representative of such employees under the provisions of sec-
tion 9 : Provided, That nothing contained in this clause ( B) shall be construed
to make unlawful , where not otherwise unlawful , any primary strike or primary
picketing ; . . . [ Emphasis supplied.]
$ S. M Kisner, et al., d/b/a S. M: Kisner and Sons, 131 NLRB 1196.
LOCAL 20, SHEET METAL WORKERS INT'L ASSOCIATION 77
subcontractors, Rudy and New Jersey Bell Telephone, were secondary
employers.
As secondary and primary employers were doing business at Ber-
gen's warehouse, the Respondent was engaged in common situs picket-
ing. Hence, our Moore Dry Dock criteria 4 become relevant. Al-
though these criteria require, inter alia, that the picketing must
clearly disclose that the dispute is only with the primary employer, at
no time during the picketing did the signs identify Eastern as the
employer against whom the picketing was aimed. In addition, it is
clear that employees of three of Hull's subcontractors left the ware-
house as soon as they became aware of the picketing, that Dey, an em-
ployee of New Jersey Bell Telephone, was induced not to cross the
picket line, and that two employees of Allan Electric Company came
to the warehouse, spoke to a picket, and left.
In view of the foregoing, we find that Respondent induced and
encouraged individuals employed by persons engaged in commerce
or in an industry affecting commerce to cease doing work for their re-
spective employers with an object of forcing Bergen or Rudy to cease
doing business with Eastern, thereby violating Section 8 (b) (4) (i) (B)
of the Act.,' We also find that such conduct violated Section
8(b) (4) (ii) (B).6
For the reasons set forth in our recent decision in Jerry Bady,
d/b/a Bomat Plumbing and Heating,? we do not agree that the
Bergen-Rudy agreement to utilize nonunion labor justified or excused
Respondent's unlawful conduct.
THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth above have a. close, .inti-
mate, and substantial relation to. trade, traffic, and. commerce among
the several States, and tend to lead to labor disputes burdening and.
obstructing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in unfair .,labor
practices, we shall order it to cease. and desist therefrom. and to take
certain affirmative action designed to effectuate the.policies, o£the Act.
Upon the basis of the foregoing findings of fact, and upon the entire,
record in the case, the Board makes the following:
d Moore Dry Dock Company, 92 NLRB 547.
5 Jerry Bady, d/b/a Bomat Plumbing and Heating, 131 NLRB 1243; S. M. Eisner,
at al., d/b/a S . M. Eisner and Sons, supra ; James D. O'Dell. at al., d/b/a Ada Transit
Mix, 130 NLRB 788; Gilmore Construction Company, 127 NLRB 541.
6 James D . O'Dell, et al ., d/b/a Ada Transit Mix, supra; Gilmore Construction Company,
supra.
7 Supra.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
,1. Bergen Drug Company, Inc., and Hull Construction Company
are engaged in commerce within- the meaning of Section 2(6) and (7)
of the Act.
2. Local 20, Sheet Metal Workers International Association, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
3. By engaging in, or inducing or encouraging individuals em-
ployed by persons engaged in commerce or in an industry affecting
commerce at the South Brunswick, New Jersey, warehouse of Bergen
Drug Company, Inc., to engage in, a strike or a refusal in the course of
their employment to perform services, and by threatening, coercing,
or restraining persons engaged in commerce or in an industry affecting
commerce, with an object of forcing or requiring Bergen Drug Com-
pany, Inc., or Robert P. Rudy Co., to cease doing business with East-
ern Locker Repair Company, Respondent has violated Section
8(b), (4) (i) and (ii) (B) of the Act.
4': The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon, the entire record in ' the case and pursuant to Section 10(c) of
the Act', as amended, the National Labor Relations Board hereby
orders that Local 20, Sheet Metal Workers International Association,
AFL-CIO, its, officers , representatives , agents , successors , and assigns,
shall :
' 1. Cease' and desist from engaging in or inducing or encouraging
any' individual employed by persons engaged in commerce or in an
industry affecting commerce at the South Brunswick , New Jersey,
warehouse of Bergen Drug Company , Inc., other than Eastern Locker
Repair Company , to engage in a strike or a refusal in the course of
his employment to use, manufacture , process, transport, or otherwise
handle'or work on any 'lgoods ,_ articles , materials, or commodities or
to''perform ' any: services , or, by picketing at the South Brunswick,
New Jersey,warehouse of Bergen Drug Company, Inc., to threaten,
coerce , or'restrain any`person 'engaged in commerce or in an industry
affecting commerce ; 'other than Eastern Locker Repair Company,
where in either case an object thereof is to force or require Bergen
Drug Company , Inc., or Robert P. Rudy Co., to cease doing business
with Eastern Locker Repair Company.
2. Take ' the following affirmativeaction, which the Board finds will
effectuate the policies of the Act :
LOCAL 20, SHEET METAL WORKERS INT'L ASSOCIATION 79
(a) Post in conspicuous places in Respondent's business offices,
meeting halls, and places where notices to members are customarily
posted, copies of the notice attached hereto marked "Appendix A." I
Copies of said notice, to be furnished by the Regional Director for
the Twenty-second Region, shall, after being duly signed by an official
representative of Respondent, be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 consecutive days
thereafter. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Furnish to the Regional Director for the Twenty-second Re-
gion signed copies of the aforementioned notice for posting by Bergen
Drug Company, Inc., at its South Brunswick, New Jersey, warehouse,
if the Company is willing, in places where notices to employees are
customarily posted. Copies of said notice, to be furnished by the Re-
gional Director, shall, after being signed by Respondent, as indicated,
be forthwith returned to the Regional Director for disposition by him.
(c) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of this Order, what steps
have been taken to comply herewith.
s 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."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF
BERGEN DRUG COMPANY, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that:
WE WILL NOT induce or encourage any individual employed by
persons engaged in commerce or in an industry affecting com-
merce at the South Brunswick, New Jersey, warehouse of Bergen
Drug Company, Inc., other than Eastern Locker Repair Com-
pany, to engage in a strike or a refusal in the course of his em-
ployment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities
or to perform any services, or, by picketing at the South Bruns-
wick, New Jersey, warehouse of Bergen Drug Company, Inc., to
threaten, coerce, or restrain any person engaged in commerce or
in an industry affecting commerce, other than Eastern Locker
Repair Company, where in either case an object thereof is to force
or require Bergen Drug Company, Inc., or Robert P. Rudy
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company to cease doing business with Eastern Locker Repair
Company.
LOCAL 20, SHEET METAL WORKERS
INTERNATIONAL Assoc] a noNy
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 and duly served, a complaint, amended complaint, and
notice of hearing thereon having been issued and served 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)(i) and (ii)(B) of the National Labor Re-
lations' Act, as amended, was held in Newark, New Jersey, on September 27, 1960,
before the duly designated Trial Examiner.
At the hearing all parties were represented by counsel, and were afforded full
opportunity to present evidence pertinent to the issues, to argue orally, and to file
briefs. Briefs have been received from General Counsel and the Respondent.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE CHARGING PARTY
Bergen Drug Company is a New Jersey corporation, with principal office and place
of business in Hackensack, New Jersey, where it is engaged in the sale and distribu-
tion of pharmaceuticals and related products to drugstores and hospitals.
During the year preceding issuance of the complaint Bergen purchased, trans-
ferred, and delivered directly to its place of business pharmaceuticals and other goods
and materials valued at more than $4,000,000 from points outside the State of New
Jersey. During the same period Bergen sold and shipped directly to customers out-
side the State of New Jersey goods valued at more than $800,000.
The Charging Party is engaged in commerce within the meaning of the Act.
On December 30, 1959, Bergen entered into a contract with Hull Construction
Company, a general contradtor, for the construction of a warehouse in South Bruns-
wick, New Jersey. The contract price for materials and services was $450,000.
Except for''minor details, Hull competed construction under the contract in June
1960, and 'the key was formally turned over to Bergen on June,21, 1960.
On the basis of Board standards set out in Jonesboro Grain,' and because Hull
provided Bergen, found above to be engaged in commerce, with goods and services
valued' at more than $200,000, it is concluded and found that at least during the
period of this warehouse construction Hull was engaged in commerce within the
meaning of the Act.2
'Jonesboro Grata Drying Cooperative, 110 NLRB 481, 484.
2 As will be' noted more fully below, in the complaint, General Counsel alleged that
numerous other employers, including some claimed to have been subcontractors under Hull,
aie "employers engaged In commerce or In industries affecting commerce." No factual
evidence was introduced, however, except as to Bergen and FIull Since the Respondent's
answer denied sucli allegations, the issue was created and the burden was upon General
Counsel to prove his claims. There being no proof in the record, there is no evidence
before the Trial Examiner upon which to base commerce findings as to any other employer
except Bergen and Hull.
LOCAL 20, SHEET METAL WORKERS INT'L ASSOCIATION 81
II. THE RESPONDENT UNION
Local 20, Sheet Metal Workers International Association , AFL-CIO, • is a labor
organization within the meaning of the Act. -
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting and issues ''It , - -
In performance of the above-described contract with Bergen, Hull subcontracted
a good part of the construction work. The identity of these subcontractors is im-
material to the issues since, as pointed out in a footnote below, the record is barren
of evidence to support General Counsel's claim that such employers are "engaged
in commerce or in industries affecting commerce." -
According to the testimony of Milton Hull, a partner in Hull Construction Com-
pany, he "turned the key" over to Bergen on June 21, 1960, and it appears from
his account that by July 26, 1960, his performance on this job had been finished
except for such minor matters as radiator covers missing or damaged in shipment.
In any event, none of Hull's employees were working on this job on July 27 or
any material date thereafter because, he said "there was no work to be done" by
them.
In addition to the general construction contract with Hull, Bergen also contracted
with a New York "equipment-engineering-service" called Robert E. )Rudy Co.; ac-
cording to its letterhead in • evidence, for the purchase and installation of certain
metal shelving in the warehouse. This contract was in the form of Bergen's pur-
chase order of June 24, which incorporated by reference a letter dated June 22,
1960, from Rudy to Bergen, which states:
I am very pleased to advise that your order for shelving has been entered
with our factory and they will make shipment so that the shelving will arrive on
Tuesday, July 5th, at your new warehouse in South Brunswick, N.J.
I have also made arrangements for nonunion labor to start installation of
this shelving on July 5th. The price for this installation is $1,510.00.
[Emphasis supplied.]
It appears that Rudy, in turn , subcontracted the actual installation of the shelving
to a concern called Eastern Locker Repair Company . According to the testimony
of John H . Kenney, brother of the head of Eastern Locker, he and two other men,
all nonunion , worked at - the installation of shelving in the Bergen warehouse from
about July 19 through July 26, 1960, without interruption.
On July 26 Milton Hull, on an inspection tour through the warehouse, observed
near a rear door two individuals whom he did not know. He asked what they were
doing there . One replied that he was Business Agent Ryan of the Sheet Metalet l
Workers Union . In response to further inquiry Ryan told him that he had dis-
covered nonunion men working on the shelving and planned to picket the job the
next day. The next day Hull urged Ryan , by telephone , to get together with Bergen
and settle the dispute . Ryan readily agreed . Arrangements were then made for
Ryan to meet with a Bergen official, but according to Hull's uncontradicted testi-
mony this official canceled the scheduled meeting. This same official , the same
day, filed the original charge with a Board agent.
There is competent evidence that on the morning of July 27 pickets appeared
at the two driveway entrances to the warehouse premises , carrying signs bearing
the legend: -- -
SHEET METAL
WORKERS'
ON THIS JOB
ARE NOT PROTECTED
BY UNION WAGES
AND CONDITIONS
L.U 20, S.M.W.L.U.
It appears that pickets carrying similar signs were present also on July 28, 29, and
August 1. There were no pickets at the site on Saturday and Sunday , July 30 and 31.
Upon discovering pickets at the premises on July 27, the following individuals
failed to perform work at the warehouse under circumstances briefly described:
We would appreciate your confirmation of this order for the nonunion labor.
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) John Kenney, acting upon instructions received the night before from his
brother, head of Eastern Locker, and two other Eastern employees declined to
cross the picket line that iday (July 27) and did not return to complete installation
of the shelving. According to Kenney, no picket spoke to him and he did not read
the sign. He was informed upon approaching the plant by the Bergen superintendent
that it was a union picket line, and having previously received instructions from his
brother to do so, turned around and left.
(2) Frank Holzworth, a carpenter employed by one of the subcontractors, had
about a half day's work to complete on the morning of July 27. He had not started
work when he saw pickets drive up. "Not feeling so hot," he testified, he packed
up and left.
(3) Either on July 27 or 28, according to R. B. Dey, an installer for the New
Jersey Bell Telephone Company, he drove up to the premises, upon order (from the
Telephone Company, apparently) to install a coin telephone at the warehouse. Ap-
proaching the premises he saw a picket and asked him if it "was all right to cross."
The picket replied, "I'd rather you didn't," so he proceeded on to his next order.
The foregoing facts- were developed by General Counsel, and the Respondent
offered no evidence to rebut them.
Upon such facts General Counsel contends that it must be found that the Respond-
ent Union violated the Act in these respects: (1) by picketing, etc., "induced and
encouraged individuals employed by Hull" and numerous other "employers engaged
in commerce or in industries affecting commerce" not to perform work for their
respective employers; and (2) "threatened, coerced and restrained" Hull, Bergen,
and various "other persons engaged in commerce or in an industry affecting
commerce."
B. Conclusions
The sections of the Act, as amended , invoked by General Counsel, read as follows:
8. (b) It shall be an unfair labor practice for a labor organization or its
agents-
. * * * * * * *
(4) (i) to engage in, or to induce or encourage any individual employed
by any person engaged in commerce or in an industry affecting commerce
to engage in, a strike, or a refusal in the course of his employment to use,
manufacture, process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any services or (ii) to
threaten, coerce, or restrain any person engaged in commerce or in an in-
dustry affecting commerce. . . . [Emphasis supplied.]
Early in the hearing General Counsel advanced the theory that "Eastern Locker
Repair and Maintenance Company" is the "primary employer herein," and that
"picketing was in violation of the precepts laid down in Moore Dry Dock" (92
NLRB 549). He maintains this position in his brief, but does not explain precisely
how he figures this to be so. Clearly Hull, the general contractor, considered the
dispute to be between Bergen , who was alone responsible for the hiring of nonunion
labor, and the Respondent, and the Trial Examiner discerns no other reasonable con-
clusion. In any event, for reasons set out below, it appears unnecessary to reach
determination of the point.
Certain basic facts must be established before any theory may reasonably be
applied. This the very language of the Act requires, as well as the obligations of due
process.
Reverting to the italicized portions of Section 8(b)(4)(i) and (ii), quoted above,
it seems rudimentary that in order to reach any conclusion of violation the Trial
Examiner must find, as facts, that (1) some "individual" employed by "any person
engaged in commerce or in an industry affecting commerce" has been induced or
encouraged to stop or refuse to work, or (2) that some "person engaged in commerce
or in an industry affecting commerce" has been threatened, coerced, or restrained.
And facts, to be found, require evidence to support them.3
S Unless and until the Board announces , as agency policy, that it requires no evidence,
or standard , to find a secondary employer "engaged in commerce ," the Trial Examiner
assumed that he should continue to apply commerce standards currently observed to deter-
mine Board jurisdiction. The Trial Examiner notes that in each of the only two cases
coming to his attention where the Board itself has issued decisions involving the same
srctioiis of the Act Gilmore Construction Company (127 NLRB. 541) and Republic Wire
LOCAL 20, SHEET METAL. WORKERS INT'L ASSOCIATION 83
As noted above, the only evidence as to commerce in the record relates to Bergen,
the Charging Party, and to Hull, the general contractor. Neither Bergen nor Hull
had any employees at the warehouse at the time pickets were there, and it follows
that none of them was "induced" to do or not to do anything. Hull's testimony makes
it clear that he was neither threatened nor coerced in any fashion. And Bergen
officials refused even to meet with a union representative.
Even assuming that the incidents noted above of employees of other employers
declining to cross the picket line are of sufficient merit to warrant a finding that they
were "induced" not to work by the mere presence of pickets, in the lack of any
evidence in the record that such employees were "employed by any person engaged in
commerce" no conclusion of violation may properly be drawn in terms of the Act.
Furthermore, and in the opinion of the Trial Examiner, an even more potent reason
for recommending dismissal of the complaint is the documented fact that Bergen,
the Charging Party, is responsible for its unlawful contract with Rudy, requiring the
hiring of nonunion labor to install the metal shelving.
There can hardly be any question but that the Charging Party had knowledge of
its own act. Robert Martini, division manager for Bergen, not only signed the
original charge filed with the Board, but also the order to Rudy for the use of non-
union labor. The documents in evidence show both that his order incorporated by
reference Rudy's letter of June 22, quoted above, in which Rudy specifically requested
confirmation of "this order for the nonunion labor," and that Martini graphically con-
firmed the order by circling the reference to nonunion labor in Rudy's letter and
writing "OK-R. Martini 6/24/60" upon that letter which was returned to Rudy.
In a recent Intermediate Report (Jerry Bady, d/b/a Bomat Plumbing and Heating,
131 NLRB 1243), Trial Examiner Charles W. Schneider had occasion to appraise
and pass upon a similar situation: where the charging employer, party to a similarly
unlawful hiring contract, sought relief from picketing. At one point Trial Examiner
Schneider said:
In my opinion to find a violation of the Act in the Respondent's conduct here,
and to issue the requested remedial order, would be to perpetuate a condition
of affairs itself in derogation of law, would be contrary to the public interest,
and is consequently to be avoided.
The Trial Examiner agrees with and adopts the quoted reasoning in full.
In the same report Trial Examiner Schneider cited Vaughn Bowen, et al., 93 NLRB
1147, as authority for recommending dismissal on the ground of abuse of the Board's
process. The relevant quotation from that Board decision (p. 1153) :
. We are satisfied that the Board's process has not been invoked to secure a
remedy for violations of the Act, but for the sole purpose of getting the Board
to assist the Teamsters in its scheme, which had, as its ultimate objective, forcing
upon the Respondent Companies the employment of Teamsters members.
This attempt to use the Board's processes to further the cause of the Teamsters
in its jurisdictional conflict with the Respondent Union constitutes, in our
opinion, a palpable abuse of the Board's machinery. The Board may, of course,
refuse to allow such advantage to be taken of it. In the words of the Supreme
Court, "it is not required by the statute to move on every charge; it is merely
enabled to do so. It may decline to,be imposed upon or to submit its processes
to abuse." [N L.R.B. v. Indiana & Michigan Electric Company et al, 318
U.S. 9.] Under these circumstances we believe that it would serve the public
interest to dismiss the allegations of the complaint... .
In concluding summary, the Trial Examiner will recommend that the complaint be
dismissed in its entirely for the following reasons: (1) the record lacks factual evi-
dence for a finding that any individual employed by any person engaged in commerce
was induced to stop or refuse to work, or that any person engaged in commerce was
threatened, coerced, or restrained by the Respondent or its agents; (2) it would offend
and negate public interest and the purposes of the Act to issue a remedial order per-
petuating Bergen's unlawful hiring policy; and (3) the Board should not countenance
so obvious an abuse of its processes.
[Recommendations omitted from publication.]
Corporation (129 NLRB 376) the Board specifically found that certain secondary em-
ployers were engaged in commerce on the basis of the value of goods moving in commerce
and according to current standards.
614913-62-vol. 132-7