Local 2346, United Brotherhood of Carpenters

National Labor Relations Board - Board Decisions

Jan 24, 1966

156 N.L.R.B. 1105 (N.L.R.B. 1966)

LOCAL 2346, UNITED BROTHERHOOD OF CARPENTERS 1105
In light of all the foregoing statements, and the speech viewed in
its entirety, I cannot agree with my colleagues' conclusion that the
employees would not reasonably construe such remarks as pointing
to a loss of employment which necessarily would follow the advent of
the Union. Nor, in my opinion, is the speech made lawful because
the relocation of the companies may have been generally known in
Owosso. If this has any significance, it is only to heighten the employ-
ees' fear of unemployment which the Employer sought to impress
upon them. The nature of such comments manifestly create and
intensified a fear that job security could not be maintained if the
Union won the election. Thus, by repeatedly emphasizing-this theme,
the Employer did not simply answer prior propaganda but created an
atmosphere in which an uncoerced vote could not be cast. Accord-
ingly, I would direct the Regional Director to hold another election.
Local 2346, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO [Erectors, Inc.] and Lathers' Local No. 39
a/w Wood , Wire and Metal Lathers ' International Union, AFL-
CIO and Foster Engineering Company, Ltd ., Party of Interest
and J . C. Penney Company , Party of Interest
Indiana and Kentucky District Council , United Brotherhood of
Carpenters and Joiners of America , AFL-CIO [Erectors, Inc.]
and Lathers ' Local No. 39, a/w Wood , Wire and Metal Lathers'
International Union , AFL-CIO and Foster Engineering Com-
pany, Ltd., Party of Interest and J . C. Penney Company, Party
of Interest . Cases Nos. 25-CC-134 and 25-CC-137. January 04,
1966
DECISION AND ORDER
On October 22, 1965, Trial Examiner David S. Davidson issued his
Decision in the above-entitled proceeding, finding that the Respondent
District Council 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 attached Trial
Examiner's Decision. He also found that the Respondent Local 2346
had not engaged in unfair labor practices as alleged and recommended
that the complaint against it in Case No. 25-CC-134 be dismissed.
Thereafter, the Respondent District Council filed exceptions to the
Trial Examiner's Decision and a supporting brief, and the General
Counsel filed a brief in support of the Trial Examiner's Decision.
156 NLRB No. 102.
1106 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
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 [Chairman McCulloch and Members Brown and Zagoria].
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 and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order
and dismissed the complaint in Case No. 25-CC-134.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed March 11, 1965, by Lathers' Local No. 39, a/w Wood, Wire
and Metal Lathers ' International Union, AFL-CIO, referred to herein as the Lathers,
the General Counsel issued a complaint in Case No. 25-CC-134 against Respondent,
Local 2346, United Brotherhood of Carpenters and Joiners of America , AFL-CIO,
referred to herein as Local 2346. The complaint alleges that Local 2346 violated
Section 8 ( b)(4)(i) and ( ii)(B) of the Act. The answer of Local 2346 denies the
commission of any unfair labor practices.
A hearing on Case No . 25-CC-134, with all parties represented , was held before
Trial Examiner David S. Davidson in Shelbyville , Indiana, on June 7, 1965. At the
close of the hearing, oral argument was waived , and the parties were given leave to
file briefs.
Thereafter, upon a charge filed on June 10, 1965, by the Lathers, the General
Counsel issued a complaint in Case No . 25-CC-137 against Respondent Indiana and
Kentucky District Council, United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO, referred to herein as the District Council, containing allegations sub-
stantially the same as those in the complaint against Local 2346 in Case No.
25-CC-134. The District Council in its answer denies the commission of any unfair
labor practices.
On July 26, 1965, counsel for the General Counsel moved to consolidate Case No.
25-CC-137 with Case No. 25-CC-134. Following issuance by me of an order to
show cause why the motion of the General Counsel should not be granted and the
filing of a response in opposition to consolidation by the Respondents , the parties
were notified that I would defer ruling and hear argument on the motion to consoli-
date on August 31, 1965, prior to the scheduled opening of the hearing in Case No.
25-CC-137 on that date in Indianapolis , Indiana. At that time the parties stipu-
lated that the evidence submitted in Case No. 25-CC-134 is to be considered as the
evidence in Case No. 25-CC-137 and that both sides would rest without the intro-
duction of further evidence . Thereupon , the motion to consolidate was granted in
view of the stipulation and the similarity of the factual and legal issues in the two
cases.1
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
C. Wayne Foster and Glen Foster, copartners , d/b/a Foster Engineering Com-
pany, Ltd., referred to herein as Foster, have their principal office at Indianapolis,
1 After the close of the hearing , briefs were filed by the General Counsel and the Re-
spondent . At the August 31 hearing the counsel for the General Counsel was permitted
to withdraw a motion made at the earlier hearing to substitute the District Council for
Local 2346 as Respondent in Case No . 25-CC-134.
LOCAL 2346, UNITED BROTHERHOOD OF CARPENTERS 1107
Indiana. During all times material Foster has been engaged at Shelbyville , Indiana,
as general contractor in construction work at a shopping center known as the Bel
Aire Shopping Center, at which the unfair labor practices charged in the complaints
are alleged to have occurred . As a general contractor in the building and construc-
tion industry during 1964 , Foster engaged in the construction of various commercial
and light industrial buildings valued in excess of $1 million . Foster performs serv-
ices outside the State of Indiana annually valued in excess of $50,000.
J. C. Penney , referred to herein as Penney , is a Delaware corporation engaged
primarily in the retail sale of general merchandise , and during 1964 sold goods
valued at in excess of $ 1 million from its various locations throughout the United
States. During 1964, Penney received at its various facilities goods of a value in
excess of $ 50,000 which were shipped to such facilities directly from points outside
the States in which such facilities are located . At all times material, Penney was a
lessee of one of the stores in the Bel Aire Shopping Center and had carpenters and
workmen in its employ at the jobsite engaged in preparing the store for occupancy.
Erectors , Inc , an Indiana corporation with principal offices in Indianapolis, Indi-
ana, is a wholly owned subsidiary of Hugh J. Baker and /or Baker's firms, and is a
subcontractor engaged in the installation of ceilings in light industrial and commer-
cial buildings . During 1964 Erectors purchased , transferred , and delivered to its
project sites in Indiana goods and materials valued in excess of $50,000 which were
transported to said sites directly from points outside the State of Indiana. At all
times material Erectors was engaged as a subcontractor by Foster for the installation
of ceilings in the Bel Aire Shopping Center. I find that Foster, Penney , and Erectors,
Inc., are employers engaged in commerce or in operations affecting commerce within
the meaning of the Act , and that it will effectuate the policies of the Act to assert
jurisdiction herein. Madison Building & Construction Trades Council, William
Arnold, et al . ( Wallace Hildebrant & John Kiefer , d/b/a H & K Lathing Co.), 134
NLRB 517; Truck Drivers Local Union No. 649 , International Brotherhood of
Teamsters, etc. (Jamestown Builders Exchange , Inc.), 93 NLRB 386.
II THE LABOR ORGANIZATIONS INVOLVED
Local 2346, United Brotherhood of Carpenters and Joiners of America , AFL-CIO,
Indiana and Kentucky District Council , United Brotherhood of Carpenters and
Joiners, AFL-CIO, and Lathers ' Local No. 39 a/w Wood, Wire and Metal Lathers'
International Union, AFL-CIO, are labor organizations within the meaning of Sec-
tion 2(5 ) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
During March 1965, Foster , as general contractor , was engaged in the construc-
tion of the Bel Aire Shopping Center project . Erectors, Inc., held a subcontract
from Foster to install grid -type acoustical ceilings in various stores in the shopping
center. On Monday, March 8, 1965, Erectors started work on its subcontract. At
the time both Foster and Penney employed carpenters on the project who were mem-
bers of various local unions of the parent United Brotherhood of Carpenters and
Joiners of America , AFL-CIO. When it was discovered that Erectors intended to
assign a mixed crew of carpenters and lathers to the job, the carpenters took the
position that all the work should be assigned to carpenters , and a dispute ensued.
The General Counsel contends that in the course of the dispute Respondents engaged
in, and induced and encouraged carpenters employed by Foster and Penney to engage
in, a work stoppage and threatened Foster 's superintendent with a lengthy strike
with an object of forcing or requiring Foster and Penney to cease using , selling,
handling, transporting , or otherwise dealing in the products of, and to cease doing
business with, Erectors and with each other. Respondents deny that they engaged
in any of the alleged conduct or that any conduct which may be attributed to them
was for an objective proscribed by Section 8(b) (4) (B).
B. The facts
On March 8 Erectors dispatched a crew of three men from Indianapolis to the
Bel Aire project . Two were carpenters and the third was Malcolm Dayvolt, a lather,
who was to act as a working foreman. When the crew arrived at the jobsite , Dayvolt
217-919-66-vol. 156-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called Wendell Stapp ; business representative for the District Council ,2 to arrange for
work permits for Erectors' carpenters, who were working outside the jurisdiction of
their Local. Stapp asked Dayvolt whether Respondent was going to hire local
people, and Dayvolt replied that he had no authority to do so. Stapp then called
Elmer Downham, superintendent for Erectors, who was in Indianapolis, and asked
Downham if he could use any local carpenters. Their conversation concluded with
apparent understanding that Downham would use some carpenters from Indianapolis,
for whom Stapp would write permits, and some local men whom Stapp would sup-
ply .3 There was no mention of lathers during the conversation.
In midafternoon, Stapp arrived at the project to write permits for the Indianapolis
carpenters and discovered for the first time that Dayvolt was not a carpenter but
a lather. Stapp immediately attempted to contact Downham, but was unable to do
so until the following morning when they met at the jobsite.
Sometime during the afternoon, one of the carpenters on the jobsite told District
Council steward Harry Corley that there was a lather on the job doing carpenter
work .4 Fields, another carpenter who was present and like Corley worked for
Foster, asked Corley what he was going to do about it. Corley replied that he would
go and make the lather quit. Later he told Fields that the lather refused to quit and
that he, Corley, would have to call Stapp to find out what to do.5
At quitting time that afternoon, Pete Curran, project superintendent for Foster
Engineering, met Corley in the parking lot. According to Curran's credited uncon-
tradicted testimony, Corley said, "Well, we might not get to work tomorrow because
... Wendell [Stapp] told us not to work if the lathers kept putting up the grid ceiling."
The next morning the Erectors crew, which began work at 7:30, before the Foster
crew,6 arrived on the jobsite with two carpenters and three lathers from Indianapolis,
including Dayvolt. In addition three local carpenters reported to work with them,
and the entire crew began to work. About 7:50, Corley came to the Danner's store
where they were working and told the carpenters employed by Erectors to get off
the scaffolds and quit. They did.7
When Fields reported to work for Foster shortly before 8 that morning he asked
Steward Corley what they were going to do. Corley replied that they were going
to wait until Stapp came and settled the dispute. Fields and the other carpenters
employed by Foster and Penney, along with Erectors' carpenters, then stood around
at the front of the Danner's store waiting for Stapp to find out what they were going
to do 8 The three lathers continued to work.
About 8 15 Downham arrived at the jobsite and entered the Danner's store.
Stapp arrived shortly thereafter and also entered the store, followed after a few
minutes by Curran and Glass, Curran's assistant. The four moved to the rear of
the store where a lengthy conversation took place, principally between Downham
and Stapp.9
2 Stapp was also president of Local 2346 I credit his uncontradicted testimony that
his activities in connection with the Bel Aire project were in his capacity as District
Council business representative and did not concern Local 2346, which does not have
jurisdiction over Shelbyville.
3 There are minor conflicts between Downham's and Stapp's versions of the conversation
which are not material to the issues herein and need not be resolved.
6 Stapp in his capacity as District Council business representative had appointed
Corley as job steward for the District Council and so notified Curran, the project super-
intendent for Foster Engineering
i The findings as to these conversations among the carpenters are based on the un-
contradicted testimony of Fields. Corley did not appear as a witness.
6 The Foster crew started work at 8
7 Dayvolt so testified without contradiction.
$ This finding is based on Fields ' testimony , as well as that of Downham , Curran, and
Dayvolt who testified that no carpenter worked at the jobsite for the first 2 hours of the
day Stapp testified that he believed some carpenters worked and some did not, but
admitted that he lacked any basis to know whether any carpenter then worked and that
he recognized carpenters employed by Foster and Penney who were standing in Danner's
store and not working . I do not credit Stapp 's testimony concerning his knowledge of
the stoppage by the carpenters on March 9 or his uncertainty whether the carpenters who
were standing at the front of the store were upset by the assignment of the disputed work
to lathers or merely pausing to drink coffee.
R The findings as to this conversation are based on the testimony of Downham, Curran,
and Stapp. Although each recalled slightly different aspects of the conversation, none
denied any of the material statements to which the others testified and there are no mate-
rial conflicts in their testimony.
LOCAL 2346, UNITED BROTHERHOOD OF CARPENTERS 1109
Downham asked Stapp what was happening. Stapp replied that he was striking
the job. Downham asked why. Stapp replied that the work was all carpenters'
work and he was not going to permit any lathers to work on it. Downham attempted
to explain the reasons why he wished to work a mixed crew, and Stapp replied that
he did not dispute Downham's reasons, but in his jurisdiction the work was carpenter
work and he was going to strike the job unless the work was assigned exclusively to
carpenters. At one point Downham said, "Come on, Wendell, let's get together on
this thing, let's get these carpenters back to won k." In response Stapp said, "Don't
worry about my carpenters, they'll walk out that door up there for 3 months before
they let you do this grid work." At another point during the discussion Downham
said he was going to work lathers whether Stapp liked it or not, and, if necessary,
would do the whole job with lathers. Stapp replied that it was Downham's preroga-
tive to do so and then asked how long Downham thought it would take to do the
job with lathers. When Downham answered that it would take 30 days, Stapp said,
"As I came in here this morning you have only three lathers here for about half
an hour and you have a problem and I have a problem. Now, if it takes you 30
days, we could both have a problem for 30 days." During the conference Curran
stated that he would not like to have a shutdown or a stoppage because of a tight
schedule and expressed the hope that the dispute could be settled so that work could
resume. After discussion which lasted in excess of an hour, Downham capitulated
and agreed to assign all the work to carpenters, keeping Dayvolt on the job as a
nonworking foreman. Stapp agreed to this solution, left the back of the store, went
to the group of carpenters at the front of the store, and told them that the matter
was settled and they could all go back to work. The carpenters, at the jobsite, who
did not work while the conference was in progress, then returned to work.io
There is no dispute that the only issue discussed by Downham and Stapp was
whether lathers or carpenters should install the ceiling. There was no discussion
as to whether Erectors or some other subcontractor should do the work.
Stapp denied that he ever instructed or told anyone to stop work on the Bel Aire
project, and there is no evidence to the contrary.
After the settlement agreed to by Downham and Stapp, there were no further
interruptions of work, and at the time of the hearing, Erectors had completed all
work on its contract which it had been asked to perform.
C. Concluding findings
1. The responsibility of Respondents for the conduct of Stapp and Corley
The complaints allege that the Respondents violated 8(b)(4)(i) and (ii)(B) by
the acts and conduct of Stapp and Corley, who are alleged to be agents of the
Respondents. Stapp and Corley were concededly business representative and stew-
ard, respectively, for Respondent District Council. Stapp appears to have been the
principal representative of the District Council in dealing with Erectors at the Bel
Aire jobsite. Thus, he dealt with Downham with respect to the number and identity
of local carpenters to be hired, sent local carpenters to the job, issued work permits
to out-of-town carpenters, and represented the District Council in seeking a resolu-
tion of the work assignment dispute with Downham. Corley was concededly
appointed by Stapp to act as steward for the Distirct Council at the jobsite. While
the record contains no evidence as to the nature of Corley's duties as steward or the
scope of his authority, in the light of the fact that it is the custom for stewards to
represent labor organizations which they serve in the enforcement of union policy,
and in the absence of any evidence to show that Corley's authority was limited or
that his conduct was contrary to union policy, I conclude that in engaging in the
conduct alleged to violate Section 8(b)(4) in this case, both Stapp and Corley were
acting as agents of the District Council to whom their conduct is attributable. Local
No. 511, United Brotherhood of Carpenters & Joiners of America, AFL-CIO; et al.
(New Mexico Building Branch, AGC), 120 NLRB 1658; General Drivers, Salesmen
and Warehousemen's Local No. 984, et al. (Humko Co., Inc.), 121 NLRB 1414,
1418, footnote 8; N.L.R.B. v. Brewery and Beer Distributor Drivers, Helpers and
Platform Men, Local 830, International Brotherhood of Teamsters, etc. (Delaware
Valley Beer Distributor Assn.), 281 F. 2d 319, 322 (C A. 3).
However, the evidence is not sufficient to establish that either was acting as an
agent for Local 2346 as well. Although Stapp was president of Local 2346 as well
as business representative of the District Council, the Bel Aire project was not
within the geographical jurisdiction of Local 2346, and there is no evidence to rebut
10 Foster's carpenters were not paid for the first 2 working hours on March 9
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stapp's testimony that his activities in Shelbyville were on behalf of the District
Council and not the Local. As for Corley, there is no evidence to show that he
acted in any capacity for Local 2346. Under the circumstances, I find that the con-
duct of Corley and Stapp cannot be attributed to Local 2346 and will recommend
dismissal of the complaint in Case No. 25-CC-134 for that reason.
2. The work stoppage, its inducement, encouragement, and threats
Turning to the elements of the alleged violation, I find that Job Steward Corley
induced and encouraged carpenter Paul Fields, an employee of Foster, to refuse to
perform services for Foster on the morning of March 9 within the meaning of Sec-
tion 8(b)(4)(i) when he told Fields to wait until Stapp came to the jobsite and
settled the work assignment dispute before starting to work . Any ambiguity in
Corley's usage of the word "wait" was dispelled by Corley's action, like that of all
the other carpenters on the job, in standing and waiting at the front of the Danner's
store for the dispute to be resolved before starting work. Moreover, the same factors
persuade me that Corley was responsible for the work stoppage by the carpenters
employed by Foster and Penney which occurred that morning."
In addition, I find that both Corley and Stapp threatened, coerced, and restrained
Foster's Superintendent Curran within the meaning of Section 8(b) (4) (ii). Corley
threatened Curran at the close of the workday on March 8 that "we" might not work
the next day because Stapp had told "us" not to work if lathers were kept on the job
by Erectors. As Corley was himself a carpenter employed by Foster, the threat was
clear that Foster's carpenters might refuse to work for Foster if the dispute between
the District Council and Erectors was not resolved. International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 193
(Combustion Associates, Inc.), 144 NLRB 1206, 1208, 1218. As for Stapp, during
the conference between Stapp, Downham, Curran, and Glass on March 9, when
Downham suggested that they settle the dispute to get "these" carpenters back to
work, Stapp replied, "Don't worry about my carpenters, they'll walk out that door
up there for three months before they let you do this grid work." As "these" car-
penters in Stapp's own belief included some of the carpenters working for employers
other than Erectors at the jobsite, and in fact included all the carpenters at the site,
it is clear that his response could only be reasonably understood to threaten a strike
by all the carpenters on the job unless Erectors assigned the ceiling work to carpen-
ters. Indeed another exchange between Downham and Stapp, to which Stapp testi-
fied, repeats the threat. Thus, when Downham at one point expressed an intention
to proceed on the job with lathers whether Stapp liked it or not, Stapp in the ensu-
ing exchange said that with only three lathers present for half an hour, "you have
a problem and I have a problem. Now if it takes you 30 days, we could both have
a problem for thirty days." Stapp's euphemistic usage of the word "problem" by
his own testimony referred to the carpenters standing idle at the front of the store
during the conference, and indeed could have had no other reference without fur-
ther explanation by him at the time. I find implicit in this usage a further threat
of a strike by all the carpenters on the job. In these circumstances any ambiguity
in the nature of the strike which Stapp also openly threatened in his remarks to
Downham must also be resolved to finding that Stapp threatened a strike by all the
carpenters on the jobsite and not merely by those employed by Erectors.
3 The object of Respondent District Council's conduct
Respondents contend that there is in any event no evidence that they sought to
force or require Foster or Penney to cease doing business with Erectors, but to the
contrary that the record shows that they wanted the relationship between Foster
and Erectors to continue with the work to be performed for Erectors by carpenters
In Local 3, International Brotheihood of Electrical Workers (New York Telephone
Company), 140 NLRB 729, enfd. 325 F. 2d 561 (C.A. 2), the Respondent Union
threatened the telephone company that it would withdraw its members from a con-
struction project if the company did not renegotiate its contract with Delee, a
contractor, to require that certain conduit work be performed by members of Local 3
"In making these findings I do not rely on Corley 's instruction to Erector 's carpenters
on March 9 to get off the scaffolds and quit, as any stoppage by Erector 's carpenters and
inducements to them to stop were primary in character.
LOCAL 2346, UNITED BROTHERHOOD OF CARPENTERS 1111
rather than by Delee's employees who were represented by a different union. In
rejecting a contention similar to that of Respondent in this case, the Board held,
supra at 730:
While it does not appear that Respondent explicitly demanded that the Com-
pany cancel the Delee contract if Delee refused to use its members, this was the
only alternative the Company had if Delee continued to refuse replacement of
its employees by members of Respondent. We conclude, therefore, that
Respondent's threat to the Company had an object of forcing the Company to
cease doing business with Delee. 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 the Company super-
impose upon its existing agreement with Delee an added condition of perform-
ance, that the work had to be done by Respondent's members. Acceptance of
this condition by Delee would require the Company to cease doing business
with Delee 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 busi-
ness" object within the meaning of Section 8(b)(4)(B) of the Act.
Here, also, there is no affirmative evidence that Stapp expressly asked Foster to
terminate its business relationship with Erectors. Likewise, there is no question that
the only stated goal of the pressure exerted upon Erectors was to secure the assign-
ment of carpenters by Erectors to the ceiling grid installation job. However, the
exertion of secondary pressures by Corley and Stapp in behalf of Respondent Dis-
trict Council upon Foster in furtherance of that goal could have had only one of
two alternative objects, for Foster could not itself reassign the disputed work to
carpenters. Thus, it is clear that Foster was drawn into the dispute either to cause
it to impose an added condition of performance upon its contract with Erectors
requiring Erectors to utilize carpenters to perform the disputed work, or to cause
Foster to terminate its subcontract with Erectors and seek other means to perform
the disputed work.
Similarly, while there is no evidence of a business relationship between Penney
and Erectors or between Penney and Foster, the only possible purpose for inter-
rupting the work performed by Penney's carpenters and threatening such interruption
was either to cause Penney to terminate its occupancy agreement with the owner of
the shopping center or to cause Penney to impose as a condition of its continued
tenancy the requirement that the owner require Foster in turn either to require that
the disputed work be performed by carpenters or to terminate the subcontract.
These objects are all proscribed by Section 8(b)(4)(B). Local 3, International
Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company),
supra.
Respondent relies on N L.R.B. v. United Brotherhood of Carpenters & Joiners of
America, Local 80, United Brotherhood of Carpenters & Joiners of America (Wend-
nagel & Company), 261 F. 2d 166 (C.A. 7), setting aside 119 NLRB 1444, as sup-
porting a contrary conclusion It does not appear, however, that the rationale
subsequently set forth by the Board in the Local 3 IBEW case, supra, was relied
upon by the Board or passed upon by the Seventh Circuit in that case. Moreover,
to the extent that the decision of the Seventh Circuit rests upon the decision of the
Second Circuit in Charles T. Douds v. International Longshoreman's Association,
Independent, et al., 224 F. 2d 455, the restricted view of the term "object" which
the Douds decision adopted has not been followed by the Board and has since been
rejected by the Second Circuit in subsequent decisions. See National Maritime
Union of America (Weyerhaesur Lines & Houston Maritime Assn.) V. N.L.R.B,
342 F. 2d 538, 544-545. Under the circumstances I find the Local 3 decision, supra,
applicable and controlling.
Respondents also contend in defense that no violations should be found herein
because of the failure of the General Counsel to act upon companion charges of
violation of Section 8(b) (4) (i) and (ii) (D) filed by the Lathers against them.
Respondents argue that under N.L.R.B. v. Radio & Television Broadcast Engineers
Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO
(Columbia Broadcasting System), 364 U.S. 573, the Board was required to decide
the jurisdictional dispute, and that its failure to do so may have prejudiced Respond-
ents in the instant case, as a 10(k) proceeding might have disposed of the entire
matter under Local 1248, International Longshoremen's Association (Hampton
Roads Maritime Association), 152 NLRB 891. 1 find no merit in this defense.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While a work assignment dispute may generate charges of violation of both Sec-
tion 8(b)(4)(B) and (D), the violations are separate and distinct. Section 8(b)
(4) (B) concerns involvement of neutral or secondary employers in such disputes
while 8(b) (4) (D) concerns the use of proscribed force in such disputes against the
primary employer with whom the work assignment dispute exists. Reasons which
justify the quashing of a notice of hearing under Section 10(k), such as submission
of evidence of agreement upon methods for the voluntary adjustment of the dispute,
are irrelevant to an 8(b)(4)(B) violation. Whatever the duty of the General Coun-
sel with respect to the 8(b)(4)(D) proceeding, no evidence was adduced or offered
before me to show that the General Counsel did not perform his duty.
Moreover, the Hampton Roads case relied upon by Respondents is not apposite.
In that case the 10(k) proceeding had been held and resulted in action by the Board
which "proscribed the very conduct" in question in the 8(b)(4)(B) proceeding.
Here the 10(k) proceeding has not been held and the mere pendency of such a pro-
ceeding is not a bar to an 8(b) (4) (B) proceeding. Local 5, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO (Arthur Venneri Company), 137 NLRB 828, 831-
832, enfd. as modified 321 F. 2d 366 (C.A.D.C.), cert. denied 375 U.S. 921. As
that decision makes clear, Respondents' claim of prejudice is without foundation, for
assuming they succeeded in obtaining a determination that the disputed work should
have been assigned to carpenters, thereby justifying the exertion of primary pres-
sures against Erectors to obtain the assignment, that determination would not justify
the involvement of Foster and Penney in the dispute by inducing or threatening
work stoppages by their employees.
Accordingly, I find that Respondent District Council by its above-described con-
duct has violated Section 8(b)(4)(i) and (ii) (B) and has thereby violated the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent District Council as set forth in section III, above,
occurring in connection with the operations of Erectors, Foster, and Penney as
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 dis-
putes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent District Council has violated Section 8(b)(4)(i)
and (ii) (B) of the Act, I shall 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 foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. C. Wayne Foster and Glen Foster, d/b/a Foster Engineering Company, Ltd.,
J. C. Penney, and Erectors, Inc., are each employers engaged in commerce or an
industry affecting commerce within the meaning of Section 2(2), (6), and (7) and
Section 8(b) (4) of the Act.
2. Local 2346, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, Indiana and Kentucky District Council, United Brotheihood of Carpenters and
Joiners of America, AFL-CIO, and Lathers' Local No. 39, a/w Wood, Wire and
Metal Lathers' International Union, AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
3. By engaging in, and inducing and encouraging employees of Foster and Penney
to engage in, a refusal in the course of their employment to perform services, and by
threatening, coercing, and restraining Foster, with an object of forcing and requiring
Foster and Penney to cease doing business with Erectors, Inc., and the owner of the
Bel Aire project, respectively, Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act which affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended, I recom-
LOCAL 2346, UNITED BROTHERHOOD OF CARPENTERS 1113
mend that Respondent Indiana and Kentucky District Council, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, its officers, representatives, and
agents, shall:
1. Cease and desist from engaging in, or inducing or encouraging any individual
employed by C. Wayne Foster and Glen Foster, d/b/a Foster Engineering Company,
Ltd., J. C. Penney, or any other person engaged in commerce or in any industry
affecting commerce, to engage in, a strike or refusal in the course of their employ-
ment to use, manufacture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities, or to perform any services; or threatening,
coercing, or restraining C. Wayne Foster and Glen Foster, d/b/a Foster Engineering
Company, Ltd., or any other person engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is to force C. Wayne Foster and
Glen Foster, d/b/a Foster Engineering Company, or any other employer or person to
cease doing business with Erectors, Inc., or to force J. C. Penney or any other
employer or person to cease doing business with the owner of the Bel Aire Shopping
Center at Shelbyville, Indiana.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Post in conspicuous places at its business offices, meeting halls, and all places
where notices to members are customarily posted, copies of the attached notice
marked "Appendix." 12 Copies of said notice, to be furnished by the Regional
Director for Region 25, shall, after being duly signed by Respondent District Council's
authorized representative, be posted by Respondent District Council immediately
upon receipt thereof and be maintained by it for 60 consecutive days Reasonable
steps shall be taken by Respondent District Council to insure that such notices are not
altered, defaced, or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the Regional Director for
Region 25 for posting by each of the employees named in the preceding paragraphs
who are willing, at all places where notices to their respective employees are cus-
tomarily posted.
(c) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision, what steps the Respondent District Council has taken to comply
herewith.l3
It is further recommended that the Board dismiss the complaint in Case No. 25-
CC-134 in its entirety.
13 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
16In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent District Council has taken to
comply herewith"
APPENDIX
NOTICE TO ALL MEMBERS OF INDIANA AND KENTUCKY DISTRICT COUNCIL, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT engage in, or induce or encourage any individual employed by
C. Wayne Foster and Glen Foster, d/b/a Foster Engineering Company, Ltd.,
J. C. Penney, or any other person engaged in commerce or in any industry affect-
ing commerce, to engage in, strikes or refusals 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; or threaten,
coerce, or restrain C. Wayne Foster and Glen Foster, d/b/a Foster Engineering
Company, Ltd., or any other person engaged in commerce or in an industry
affecting commerce, where in either case an object thereof is to force C. Wayne
Foster and Glen Foster, d/b/a Foster Engineering Company, Ltd., or any other
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer or person to cease doing business with Erectors, Inc., or to force
J. C. Penney or any other employer or person to cease doing business with the
owner of Bel Aire Shopping Center at Shelbyville, Indiana.
INDIANA AND KENTUCKY DISTRICT COUNCIL, UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By----------------- -------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. 633-8921.
Edward M. Lindsey and Oscar H. Lindsey , a Partnership d/b/a
Lindsey's and Teamsters, Chauffeurs, Helpers and Taxicab
Drivers Local Union 327, affiliated with International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers of
America. Case No. 26-CA-2020. January 25, 1966
DECISION AND ORDER
On September 1, 1965, Trial Examiner Jerry B. Stone issued his
Decision in the above-entitled proceeding, findings that the Respond-
ents had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the Respondents had
not engaged in certain other unfair labor practices alleged in the com-
plaint, and recommended that these allegations be dismissed. There-
after, the Respondents filed exceptions to the Trial Examiner's Deci-
sion and a supporting 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 [Chairman McCulloch and Members Fanning 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 Decison,
the exceptions, brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner only to the extent consistent herewith.
The facts leading up to the alleged violation of Section 8(a) (3)
as disclosed by the record and found by the Trial Examiner are as
follows : During the late summer of 1964 Respondents decided to
remodel their plant facilities at Lawrenceburg, Tennessee , so as to
156 NLRB No. 104.