Local 35, United Association of Journeymen, Etc.

National Labor Relations Board - Board Decisions

Feb 18, 1960

126 N.L.R.B. 708 (N.L.R.B. 1960)

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial 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
thereof.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case , I make the following:
CONCLUSIONS OF LAw
1. Walton Manufacturing Company is an employer within the meaning of Section
2(2) of the Act.
2. By promulgating a rule prohibiting employees from soliciting membership in
any organization on company property, and by imposing upon employees, as a con-
dition of employment , a requirement that collective bargaining must proceed on the
basis of a labor organization to be sponsored , formed , or assisted by the Company,
the Respondent has interfered with , restrained , .,and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act, and has thereby committed
unfair labor practices within the meaning of Section 8 (a)( I) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication. I
Local 35, United Association of Journeymen & Apprentices of
the Plumbing & Pipe Fitting Industry of the U.S. & Canada,
AFL-CIO and Richard E. Buettner. Case No. 14-CC-133-
February 18, 1960
DECISION AND ORDER
On October 6, 1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and is engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
Pursuant to Section 3(b) of the Act, the Board has delegated its
power in connection with this proceeding to a three-member panel
[Members Rodgers, Jenkins, and Fanning].
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 Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
THE REMEDY
Respondent excepts to the Trial Examiner's recommended order
as too broad in that it directs the Respondent to cease and desist from
inducement of work stoppages not only by the employees of Buettner,
the secondary employer directly involved, but also by the employees
126 NLRB No. 90.
LOCAL 35, UNITED ASSOCIATION OF JOURNEYMEN, ETC . 709
of "any employer." We see no merit in the exception. The record
shows that the Respondent's business representatives, Justi and Gra-
ham, in claiming the disputed work for their members, stated to
Hunter that the work of laying water mains in the St. Louis area
is within the exclusive jurisdiction of their union. A similar claim
to the exclusive jurisdiction over the laying of water mains was also
made in 1956 by a sister local of Respondent.' In view of the Re-
spondent's continued claim to the exclusive jurisdiction over the laying
of water mains in the St. Louis area and the danger that in enforcing
this claim in the future Respondent will resort to the commission of
similar violations with respect to other employers in the area, we
shall in accordance with the recommended order direct Respondent
to cease and desist from engaging in the commission of similar
violations.2
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of 'the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent Union, Local 35, United
Association of Journeymen & Apprentices of the Plumbing & Pipe
Fitting Industry of the U.S. & Canada, AFL-CIO, and its officers,
agents, successors, and assigns shall :
1. Cease and desist from inducing or encouraging the employees
of Richard E. Buettner, or the employees of any other employer,
-except Delbert Hunter, to engage in a strike or a concerted refusal in
the course of their employment, to perform services for their employer,
where an object thereof is to force or require Richard Buettner or
any other employer, or person to cease doing business with Delbert
Hunter or with any other employer.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its business office in St. Louis, Missouri, copies of the
notice attached hereto marked "Appendix." 3 Copies of said notice,
to be furnished by the Regional Director for the Fourteenth Region,
shall, after being duly signed by a representative of the Respondent,
be posted by said Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its members are cus-
1 Local 562, Building and Construction, eta., affiliated with United Association 'of
Journeymen and Apprentices of the Plumbsng and Papefitting Industry of the United States
and Canada , AFL-CIO ( St. Louis County Water Company ), 116 NLRB 1111.
2 Local 926 , International Union of Operating Engvneers at at. (Armco Drainage and
Metal Products, Inc.), 120 NLRB 18'8; United Brotherhood of Carpenters , at at. (Wend-
nagel d Company ), 119 NLRB 1444; See also Local 660, International Brotherhood of
Electrical Workers, at al. (Traffic Safety, Inc.), 125 NLRB 537.
3In 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."
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 35, UNITED ASSOCIATION OF JOUR-
NEYMEN & APPRENTICES OF THE PLUMBING & PIPE FITTING INDUSTRY
OF THE U.S. & CANADA, AFL-CIO
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 notify you that :
WE WILL NOT engage in, or induce or encourage the employees
of Richard E. Buettner or the employees of any other employer,
except Delbert Hunter, to engage in a strike or a concerted re-
fusal, in the course of their employment, to perform services for
their employer where an object is to force or require Richard E.
Buettner or any other employer or person to cease doing business
with Delbert Hunter, or with any other employer.
LOCAL 35, UNITED ASSOCIATION OF JOURNEY-
MEN & APPRENTICES OF THE PLUMBING &
PIPE FITTING INDUSTRY OF THE U.S. &
CANADA, 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 served, a 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) (A) of the National Labor Relations Act, as amended ( 61 Stat.
136), was held in St . Louis, Missouri , on August 20, 1959 , before the duly designated
Trial Examiner.
All parties were represented at the hearing and were afforded full opportunity to
be heard , to examine and cross -examine witnesses , and to introduce evidence per-
tinent to the issues . Opportunity for oral argument was waived . Briefs have been
received from General 'Counsel and the Respondent . Ruling upon the Respondent's
motion to dismiss the complaint , reserved at the conclusion of the hearing, is dis-
posed of by the following findings, conclusions , and recommendations.
In lieu of presenting certain testimony before the Trial Examiner by calling cer-
tain witnesses, the parties stipulated that the transcript of record in Case No.
LOCAL 35, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 711
14-CD-86, made on August 5, 1959, before Hearing Officer William G. Haynes,
be incorporated by reference and made a part of the record in the instant proceedings.
Upon the entire record thus made , and from his observation of witnesses appear-
ing before him, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF DELBERT HUNTER
From August 1958 to August 1959 , Delbert Hunter , as an individual , has been
engaged as a general contractor at Eureka, Missouri , in the construction of the
municipal water system of that city . In performance of such construction and
during the aforesaid period Hunter has purchased materials , consisting of pipe and
other products, valued at more than $70,000, which have been shipped to him in
the State of Missouri from points outside the State of Missouri.
Hunter is engaged in commerce within the meaning of the Act.
II. THE RESPONDENT LABOR ORGANIZATION
Local 35 , United Association of Journeymen & Apprentices of the Plumbing &
Pipe Fitting Industry of the U .S. & Canada , AFL-CIO, is a labor organization within
the meaning of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The chief issues herein involved arose after Delbert Hunter subcontracted to
Richard E . Buettner, in November 1958, a portion of the construction work covered
by the general contract which Hunter had, the preceding August, received from the
city of Eureka. Before the execution of this subcontract between Hunter and
Buettner there developed between Hunter and the Respondent Union a labor dis-
pute, the nature of which is briefly described below. From this subcontractual
relationship stems one of the chief issues : whether , as General Counsel contends,
Buettner is a neutral or secondary employer or , as counsel for the Respondent urges,
Buettner 's role is that of an allied primary employer. It is this issue which will first
be considered since, in the event merit is found in the Respondent 's position, there
exists no foundation for a claim of secondary picketing.'
If the Respondent 's contention on this point is found to be without merit, there
remains the issue as to whether or not picketing and other conduct by agents of
the Respondent at the construction site encouraged or induced Buettner 's employees
to cease work , an object of such concerted refusals being to require Buettner to
cease doing business with Hunter.
B. The question of a secondary employer
More accurately stated , perhaps, the question is whether or not Buettner was in
fact an allied , primary employer . As General Counsel points out in his brief, the
point is raised by the Respondent in its defense, and the burden of proving it remained
upon the Respondent . In short, the Respondent would have it found that Hunter,
the general contractor with whom it had a primary dispute, fully planned and
intended to perform the work finally subcontracted to Buettner and only entered
into the subcontract as a "subterfuge to attempt to get around " the labor dispute.
"This work ," the Respondent 's counsel claims , "was struck work at the time that
Mr. Buettner came into the picture and . . . the provisions applicable (to) or the
prohibitions against the secondary activity would not be applicable to the job for
that reason ." (To support the principle thus invoked, in his brief counsel for the
Respondent cites N L.R.B. v. Business Machine and Office Appliance Mechanics,
et al., Local 459 I.U.E., et al . (Royal Typewriter Co.), 228 F. 2d 553 (C.A. 2),
cert. denied 351 U.S. 96.
In substance , and in order of their occurrence, the pertinent events and facts are
as follows.
As his venture in this field of construction , sometime prior to August 7, ;1958,
Hunter submitted his bid as general contractor for the construction of a waterworks
system in Eureka. And before submitting his own bid , according to Hunter, he
I Although there is some evidence in the record that other subcontractors besides
Buettner performed work for Hunter on the jobsite, the complaInt alleges only that, by
picketing and other conduct , the Respondent Union "encouraged and induced or attempted
to induce the employees of Buettner" to engage In concerted refusals to perform work.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sought bids from several subcontractors for certain phases of the work , and material
prices from various suppliers , in order to know "where I was going." It is clear,
-however, that' before entering into his contract with the city of Eureka, which took
place on August 7, Hunter sought no bid from Buettner for any portion of the work,
nor did Buettner submit one.
Not long after the general contract was let to Hunter , and before he had begun
any excavation or construction, he was approached by two business representatives
,of Local 35, Louis Justi and Russell Graham. They requested and he declined to
hire Local 35 members to lay pipes for the construction job. While the point is of
no materiality to this case, it appears that there was a difference of opinion between
Hunter and the union officials as to whether or not the Union had "jurisdiction" over
the laying of the particular type of pipe which was to be used.
Hunter began work with some seven employees in October , operating certain
'excavation machinery and laying pipe. The Respondent Union set up no picket
line at this time.
On some undetermined day early in November , Business Representatives Justi
and Graham again approached Hunter. This time they were accompanied by two
persons whom they demanded that Hunter hire. Justi said that if they were not
hired the job would be picketed. Hunter refused to hire them, and the next day
the job was picketed by the same two individuals. From October 1958 until June 4,
1959, these pickets appeared at various points along what appears to have been about
a 10-mile front. (The parties stipulated that about 10 miles of pipe were laid in the
installation of this water system.)
Sometime in the latter part of October or early November 1958, Contractor R. E.
Buettner learned from one of his subcontractors that Hunter would probably need
someone to construct and install a concrete water reservoir. Buettner thereupon
approached Hunter, submitted a bid after being shown the plans, the bid was ac-
cepted, and a subcontract dated November 6 was signed by the parties on November
11, 1958. And in the latter part of November Buettner's employees began con-
struction of the reservoir.
While the chronology of the events described above, pertinent to the development
of the primary dispute with Hunter and the letting of a subcontract for part of
the work to Buettner appears to raise a degree of suspicion favorable to the Re-
spondent's contention that Buettner merely took over work which was covered by
Hunter's general contract and which he intended to perform had no dispute arisen
with Local 35, in the opinion of the Trial Examiner the Respondent itself dissipated
such suspicion by introducing through witnesses Hunter and Buettner other evidence
which not only fails to support but rebuts the inference sought by the Respondent.
Examples of such evidence follow:
1. Counsel for the Respondent called Hunter as a witness. Having elicited the
fact that the prime contract was entered into by Hunter with Eureka on August 5,
counsel asked:
At the time you entered into that agreement was it your intention to construct
the water reservoir by your own employees?
The answer was "No, sir." Further pursuing the subject, the same counsel elicited
from Hunter's testimony to the effect that even before he submitted his bid to the
city, his bonding company urged him not to undertake the construction of the tank,
because it was specialized work with which he was unfamiliar. Hunter further
testified that although he did not seek subcontract bids for this particular work from
Buettner, he did from other experienced contractors-one of whom was recom-
mended by the bonding company. Also from his testimony it appears that although
he accepted none of these subcontract bids, the figures obtained were used by him
in submitting his own bid for the general contract.
2. Having elicited from Hunter the fact that long before Buettner came into
the picture Hunter himself had entered into an agreement with a concrete supplier
for concrete to be used in the tank construction, the same counsel further drew
from Hunter the reasonable explanation that he did so in order to protect the price
quotation which he had used in submitting his bid to the city. Counsel also received
a flat "No, sir," from Hunter when he asked if, at the time he entered the agreement
to purchase this concrete , "it was your intention to construct the tank yourself?"
3. In cross -examination of Hunter during the preceding hearing on August 5,
1959, there occurred the following colloquy between counsel for the Respondent
and the witness:
Q. Did your decision or efforts to subcontract part of the work to Mr.
Buettner have any connection with the actual or potential labor dispute?
A. No, sir.
LOCAL 35, UNITED ASSOCIATION OF JOURNEYMEN , ETC. 713
4. Counsel for the Respondent also established through his questions of Buettner
that when he was negotiating with Hunter for the subcontract the latter did not
mention any labor dispute and that he was unaware of any picketing until after he
had begun construction work pursuant to the subcontract.
The foregoing points established by the Respondent itself , clearly militate against
a reasonable inference that Buettner and Hunter were "allied" employers. Two
further points, in the opinion of the Trial Examiner , make it plain that the inference
sought by the Respondent would be unreasonable:
1. At no time did the union representatives , or the pickets placed by the Union,
demand of Buettner that he hire members of Local 34 . And by none of their con-
duct directed at Buettner 's employees , described in the next section , did union repre-
sentatives or pickets indicate that they considered Buettner to be assuming any of
Hunter's work or responsibilities on the construction job.
2. The evidence permits no finding as to precedent or past history , from which
it might be inferred that because he had erected tanks before Hunter expected and
planned to construct this one, and would have had the labor dispute not arisen.
On the contrary, Hunter's testimony is undisputed that because of his inexperience
in such construction , the bonding company had urged him not to engage in it,
even before he submitted his bid as general contractor.
In short , the Trial Examiner concludes and finds that the Respondent has failed
to meet its burden of proof. The evidence will not support a finding that Buettner
and Hunter were "allied" employers.
C. Inducement of concerted refusals
While the work of employees of the primary employer , Hunter , ranged over
the entire water system-laying about 10 miles of pipe-that undertaken by
Buettner 's employees was restricted to the pouring of concrete and placing steel
building forms inside the tank on top of a hill from which the mains radiated.
In the latter part of November 1958 , a number of Buettner 's employees, carpen-
ters, began work at the tank site. On the first day no pickets appeared. The
next day two pickets came to the point where these employees were working. They
displayed their union cards and said they had come to picket the job . After a few
minutes of conversation , however, they told the carpenters to continue working.
The following morning, however, as Buettner's employees climbed the hill to the
tank site, the two pickets walked back and forth across the access road with an
open umbrella bearing the above -noted picket legend . No employees of Hunter
were anywhere in the vicinity . Buettner 's employees declined to cross the picket
line and left the job.
In part because of weather conditions , Buettner's employees did not return
to this job until sometime in February or March . On the occasion of their return
two pickets again appeared and said that their "boss" had instructed them to
picket "this job." Buettner 's employees again left their work.
In April they went back to the site . Pickets again appeared , but this time
Buettner 's employees were told to continue working and pay no attention to the
picketing . The following day, however, on April 24, when three of Buettner's
employees were working, Business Representative Justi appeared . Evidence is
uncontradicted that Justi talked to at least two of the three employees . In sub-
stance he asked them if they were union men and when they replied in the affirma-
tive he asked if they did not know that there were pickets there. When Buettner's
employees protested that they were working under a separate contract, Justi coun-
tered by declaring that the reservoir was part of the whole system and demanding
that they respect the picket line . Justi finally warned them that unless they quit
work he would "put a picket on ." Upon this warning Buettner 's employees left.
The Respondent offered no evidence to show that on any of the occasions when
union pickets were in the near vicinity of or talking with Buettner 's employees were
there any of Hunter 's employees nearby. Direct and competent evidence submitted
by General Counsel establishes , and it is found , that in November 1958 , when the
pickets were near the tank, there were no Hunter employees at or near the reservoir
site. And the testimony of Buettner makes clear that Hunter's employees had com-
pleted the installation of certain fittings at the tank site before April 24, the date when
Justi appeared as described above. Other testimony shows that Hunter 's one crew
of employees was engaged , for most of the several months of construction, in laying
pipes at various points along the 10 -mile system. In any event, the Trial Examiner
concludes and finds that neither on the first occasion of picketing near Buettner's
employees , in November 1958 , nor on the final occasion on April 24, 1959, were
there Hunter employees in the vicinity.
714 DECISIdNS OF NATIONAL LABOR RELATIONS BOARD
In summary, the Trial Examiner is of the opinion that the preponderance , of
credible evidence sustains the allegations of. the complaint . He therefore concludes•
and finds that by the above-described picketing at the reservoir when none of
Hunter's employees were working there or nearby , but when Buettner's employees
were engaged in performing work for Buettner , and by the above-described remarks
of Business Representative Justi to Buettner 's employees , on April 24, 1959, the
Respondent Union encouraged and induced Buettner 's employees to engage in con-
certed, :refusals in : the• course : of their . employment, . to : •perform any. •serv ces; an
object thereof being to require Buettner to cease doing business with Hunter.2
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in section III, above , occurring
in connection with the operations of the employer described in section I, above,
have a close, intimate, and substantial relation to trade , traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Union has engaged in activities violative of
Section .8(b)(4)•(A) of the Act, the Trial Examiner will recommend that it cease
and desist therefrom, and take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Delbert Hunter, an employer, is engaged in commerce within the meaning
of the Act.
2. Local 35, United Association of Journeymen & Apprentices of the Plumbing
& Pipe Fitting Industry of the U.S. & Canada, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By inducing and encouraging employees of Richard E. Buettner , an employer,
to engage in a concerted refusal in the course of their employment to perform
services for said employer , with an object of requiring Buettner to cease doing
business with Delbert Hunter , the Respondent Union has engaged in unfair labor
practices within the meaning of Section 8(b)-(4) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of the Act.
[Recommendations omitted from publication.]
9 Ready - Mimed ilonerete Company, 117 NLRB 1266.
Nordberg-Selah Fruit , Inc., Nordberg-Westbrook Fruit, Inc. and
Fruit and Vegetable Packers Union Local 760 and Lila Abhold
and Tree Fruits Labor Relations Committee , Inc., Party to
the Contract. Cases Nos. 19-CA-1567 and 19-CB-520. Febru-
ary 19, 1960
DECISION AND ORDER
On May 8, 1959, Trial Examiner Maurice M . Miller issued his
Intermediate Report in the above-consolidated proceeding, 'finding
that the Respondents had engaged in and were engaging in certain
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 Respond-
126 NLRB No. 89.