Local 388, United Association Of Journeymen And Apprentices Of The Plumbing And Pipe Fitting Industry Of The United States And Canada, Afl-Cio

National Labor Relations Board - Board Decisions

Jul 30, 1986

280 N.L.R.B. 1260 (N.L.R.B. 1986)

1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 388, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fi*.ting
Industry of the United States and Canada,
AFL-CIO and Daily Heating and Air Condi-
tioning, Inc. Cases 7-CB-5225 and 7-CC-1172
30 July 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 12 March 1982 Administrative Law Judge
Robert G. Romano issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings , findings, 11 and
conclusions and to adopt the recommended Order.
In addition to the reasons explicated by the
judge, we find that the Respondent's picketing of
the Employer was unlawful because it was done to
enforce a contract clause which, if alleged, we
would find to be violative of Section 8(e) of the
Act. The clause at issue prohibits the Employer
from assigning any employee to work on a job on
which a person is performing work within the Re-
spondent's jurisdiction for wages or under condi-
tions which are less favorable than those estab-
lished in the Respondent's contract with the Em-
ployer . Because this provision attempts to influence
labor relations policies not within the Employer's
control and does not preserve jobs for the Employ-
er's own employees , it clearly is a secondary clause
which falls within the general prohibition of Sec-
tion 8(e).2 While the construction industry proviso
permits employers and unions in that industry to
enter into union signatory subcontracting clauses
that would be unlawful secondary agreements
absent the proviso , it is an unfair labor practice for
unions to resort to self-help measures such as
strikes or picketing to enforce those clauses.3 By
1 The Respondent and the General Counsel have excepted to some of
the judge's credibility findings . The Board's established policy is not to
overrule an administrative law judge 's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect . Standard Dry Wall Products , 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Or. 1951). We have carefully examined the record and
find no basis for reversing the findings.
8 See, e.g., Muskegon Bricklayers Union 5 (Greater Muskegon Contrac-
tors), 152 NLRB 360 (1965).
0 Operating Engineers Local 12 (Griffith Ca), 243 NLRB 1121, 1124
(1979), enfd . 660 F 2d 406 (9th Cit. 1981), cert. denied 457 U S. 1105
(1982).
extension, a secondary clause that itself purports to
sanction such self-help is unlawful notwithstanding
the proviso .4 Accordingly, the Respondent errs in
its contention that the clause in question here is a
"work preservation" provision that provided a
lawful basis for its picketing . To the contrary, the
picketing was unlawful because it was aimed at en-
forcing the clause ; and to the extent the clause pur-
ported to sanction self-help , it offered merely a
basis for an additional unfair labor practice allega-
tion, not a basis for immunizing the picketing. Ac-
cordingly , the Respondent 's picketing to enforce
the clause violated Section 8 (b)(4)(i) and (iiXA) of
the Act, and the fine assessed against Thomas
Benner violated that section as well as Section
8(bXl)(A) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Local 388,
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, Lansing,
Michigan, its officers, agents, and representatives,
shall take the action set forth in the Order.
' See, e.g., Tn-State Building Trades Council (Stark Electric), 262
NLRB 672 (1982).
John Ciaromitaro Esq., and George Alexander, Esq., for
the General Counsel.
Roger A . Rapaport, Esq. (Sablich, Ryan, Rapaport Bobay
and Pollolc P.C.), of Lansing, Michigan, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT G . ROMANO, Administrative Law Judge.
These consolidated cases came on for hearing before me
at Lansing, Michigan, on October 5 and 6, 1981.1 The
original charges in Cases 7-CC-1172 and 7-CB-5225
were filed on July 10 against Local 388, United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and
Canada, AFL-CIO (Respondent or Local 388) by Daily
Heating and Air Conditioning, Inc. (Daily Heating or
the Charging Party). The consolidated complaint issued
on July 21, alleging certain violations of Section
8(b)(4)(i) and (ii)(B) and Section 8(bx1XA) of the Act.
Respondent filed its answer on August 6, in which it has,
inter alia, denied the commission of any unfair labor
practices.
On the entire record , including the demeanor of the
witnesses, and after due consideration of the briefs of the
1 All dates are in 1981 unless indicated otherwise.
280 NLRB No. 141
PLUMBERS LOCAL 388 (DAILY HEATING)
General Counsel and Respondent, received respectively
on November 17 and 18, I make the following
FINDINGS OF FACT
1. JURISDICTION
Elizabeth S . Upjohn, doing business as Kalamazoo
Artcrafts (Kalamazoo Artcrafts), is a sole proprietorship,
engaged in the business of developing various real estate
holdings, and Kalamazoo Artcrafts thereafter acts as
holding company for the developed (commercial) prop-
erties, which it leases . Hoffman Construction Company
(Hoffman), with its principal office and place of business
in Kalamazoo , Michigan , is engaged in the construction
business as a general contractor . Kalamazoo Artcrafts
contracted with Hoffman for the construction of a cer-
tain building in Lansing , Michigan , to be constructed to
specifications of its prospective lessee, Pitney-Bowes, at a
cost of some $615,000. Hoffman provided the construc-
tion superintendent for such construction , but Hoffman
has essentially otherwise subcontracted all aspects of the
construction work to some 20 subcontractors, inter alia,
to Quality Plumbing, Inc. (Quality Plumbing) for the
plumbing and sewer work; to Daily Heating for certain
heating and cooling supplies, equipment , installation (ini-
tially), and service , as discussed further infra; and to
Capital Excavating & Paving Co. (Capital Excavating)
for certain stabilized gravel fill and paving work.2 Kala-
mazoo Artcrafts has retained ownership of the building
on construction completion in July, and in the same
month Pitney-Bowes occupied the building as lessee.
During material times, Kalamazoo Artcrafts has had
annual gross rental revenues of some $430,000, in excess
of $400,000 of which revenues were derived from rentals
on similar developed commercial properties held outside
the State of Michigan . Charging Party Daily Heating, a
Michigan corporation , has during calendar year ending
December 31, 1980, a representative period, purchased
goods valued in excess of $50 ,000 from points located
outside the State of Michigan, which goods were then
shipped directly to Daily Heating jobsites located in the
State of Michigan. The complaint alleges and/or I find
that Hoffman, Daily Heating , Quality Plumbing, Capital
Excavating , and the other subcontractors engaged in the
construction of the building (Pitney-Bowes building) in
Lansing, Michigan, for Kalamazoo Artcrafts, are each,
respectively, an employer and/or person engaged in
commerce, or in an industry affecting commerce, within
the meaning of Section 2(2), (6), and (7) and Section
8(b)(4) of the Act. The complaint further alleges, Re-
spondent admits, and I find that Local 388 is a labor or-
ganization within the meaning of Section 2(5) of the Act.
I further find that Douglas W. Griffith, business manager
of Local 388, and Pitney-Bowes jobsite picket Jack
Ciucci, during times and for purposes material, were
agents of Local 388.
8 Not to be confused with Granger Excavating Co, contracted to per-
form certain excavation work
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement of Scope of the Issues
1261
The complaint alleges that Local 388 has since No-
vember 1, 1980, had a labor dispute with Quality Plumb-
ing, but that at no time has it had a labor dispute with
Daily Heating, Hoffman, or any other contractor on the
Pitney-Bowes jobsite, and further that commencing on
June 11, Respondent Union began (ostensible) area stand-
ards picketing of Daily Heating , with whom it had an es-
tablished collective -bargaining relationship and did so at
a neutral gate reserved , inter alia, for Daily Heating; that
on the same day, Griffith threatened Daily Heating with
a work stoppage if Daily Heating did not pull its em-
ployees off the job; that Griffith at the jobsite also in-
duced individuals employed by Daily Heating to engage
in a work stoppage ; that as a result of the above, em-
ployees of other neutral subcontractors (persons), includ-
ing Capital Excavating, have stayed off the jobsite since
June 11 and as well that since that time Daily Heating
has not returned to the jobsite to complete its work
there; and that the conduct of Respondent Union in the
above particulars was undertaken with an object to force
or require Hoffman, Daily Heating , Capital Excavating,
and other persons to cease doing business with Quality
Plumbing in violation of Section 8(bX4)(i) and (ii)(B) of
the Act. The complaint further alleges that on June 11,
Local 388's agents, Griffith and Ciucci, threatened
Thomas Benner, a member of Local 388 and an employ-
ee of Daily Heating , (a) that Respondent Local 388
would no longer perform its responsibilities as collective-
bargaining representative for Benner ; (b) that Benner, if
Daily Heating's doors were closed, would never work in
the trade in the Lansing, Michigan area; (c) that Griffith
has subsequently brought internal union charges against
Benner; and that all the above conduct taken against
Benner was accomplished by Respondent Local 388 be-
cause Benner had crossed (its picket line) or attempted to
enter the (Pitney -Bowes) jobsite at a neutral gate, and
because Benner had refused to participate in a strike,
work stoppage, or boycott, itself alleged to have been
unprotected in being in violation of a contractual no-
strike clause. The complaint also alleges that such con-
duct (the threats and internal charges) under the above
circumstances constituted not only restraint and coercion
of Daily Heating employees in the exercise of their Sec-
tion 7 rights in violation of Section 8(b)(1)(A), but also
constituted conduct further violative of Section 8(b)(4)(i)
and (ii)(B) of the Act. Finally, contending that Respond-
ent Local 388 has a demonstrated record of recividism,
or proclivity to violate Section 8(bX4) and (1XA) of the
Act, though apparently contention thereon is refined in
brief as more precisely to be argued on contended prior
8(bX4) violation, broad remedy is sought. 3
8 For example , of the documents on which the General Counsel would
thus rely, they being: G.C Exh. 20, composed of a (1975) formal settle-
ment and consent decree , and two (1980) informal settlements ; G.C Exh.
21, a third (1981) informal settlement approved on May 22 ; Board hold-
ing in Plumbers Local 388 (Featherly Construction), 252 NLRB 452 (1980);
and Case 7-CC-1171, Plumbers Local 388 (Barton Marlow), 262 NLRB
Continued
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Local 388 by answer filed herein, howev-
er, has denied the commission of any of the unfair labor
practices alleged herein , and at hearing its agents have
further essentially specifically denied having made un-
lawful threats to Daily Heating at its shop, or to Benner
at the picket line, thus raising major credibility issue on
remarks (central to certain 8(bXl)(A), and indeed
8(bx4Xixii) contentions) attributed to Respondent.
Respondent readily concedes that it had a longstand-
ing labor dispute with Quality Plumbing over the latter's
payment of asserted substandard wages, and further that
it had regularly picketed that Company at the Pitney-
Bowes jobsite on that account for months earlier, and
that it had done so exclusively up until June 11. Local
388 specifically defends that its change at that time to a
picketing of Daily Heating at the Pitney -Bowes jobsite
commencing June 11 (and carried on for some 7 days)
was accomplished because of Daily Heating 's breach of
contract, and accordingly its picketing of Daily Heating
is not to be concluded as violative of Section 8(b)(4Xi)
and (ii)(B) of the Act, but rather, so it argues, is well
shown of record to have been primary picketing directed
openly (and also without having generated any confu-
sion) against Daily Heating which had caused their con-
flict to arise that day.
Local 388 contends that it has conducted all its picket-
ing of Daily Heating at the Pitney -Bowes jobsite in full
compliance with the Board's previously established re-
quirements or criteria for common situs picketing de-
signed to insulate secondaries from all but incidental pri-
mary picketing effect , as expressed in Moore Dry Dock.4
Respondent contends as well that with the totality of the
case's circumstances reviewed , its picketing of Daily
Heating was conducted within the purview of the statu-
torily prescribed "dual" objective of preserved primary
strike or primary picketing activities by a union.5
Thus Local 388 contends that it began its picketing of
Daily Heating at the Pitney-Bowes jobsite on June 11 be-
cause it was on that day, and in direct violation of an ex-
isting contractual obligation then owed to Local 388 that
it would not do so, that Daily Heating had instructed an
employee (represented by Local 388) to report for work
at the Pitney-Bowes jobsite at which Local 388 was cur-
rently picketing an employer (Quality Plumbing) for
paying substandard wages. Consequently, so argues
Local 388, it was only commencing on June 11 that a
primary labor dispute (based on breach of contract) exist-
ed with Daily Heating . Local 388 initially and promptly
sought clarification of the situation which it immediately
viewed as a breach of contract from some managerial au-
thority of Daily Heating, though to no avail . Contrary to
the General Counsel 's "no strike" contentions Respond-
126 (1982), an asserted 8(bx4) matter raised as presently pending before
another administrative law judge , all the above documents related to
8(bx4), but only the 1975 formal settlement and consent order related to
Sec. 8(bx1XA), the latter alone being hardly a basis to support such con-
tentions in regard to that section.
* Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950); and see New
Orleans Building Trades Council (Markwell A Hartz), 155 NLRB 319
(1965), enfd. 387 F.2d 79 (5th Cir. 1967), cert . denied 391 U.S. 914 (1968)
s Linbeck Construction Corp . v NLRB, 550 F.2d 311 (5th Cit. 1977);
and Mississippi Gulf Building Trades Council (Bay C Anderson Jr.), 222
NLRB 649 (1976), enfd. 542 F.2d 573 (5th Cir. 1976).
ent contends that it exercised its guaranteed right as a
labor organization to informationally picket a common
situs of a valid labor dispute, and that it also promptly
pursued contractual justification of its position that the
contract had been violated through a grievance commit-
tee hearing (with Daily Heating in attendance) afforded
the Union under the contract, and that there it prevailed.
In addition to denying that unlawful threats were made
either to Daily Heating at its shop, or to Benner on the
picket line, Local 388 also contends that its member
Benner, who was instructed by Daily Heating to report
for work on the picketed Pitney-Bowes jobsite and who
did so, was not subsequently internally disciplined be-
cause he crossed a picket line. However, in its brief, and
candidly coming straight at it, Respondent contends that
Benner was charged with violation of his oath and obli-
gation under Section 162 of the United Association's
constitution and bylaws, and that after a fair hearing
Benner was found guilty of the charge of working on a
jobsite where other nonunion plumbing work was per-
formed at substandard wages, hours, and working condi-
tions, than those applicable to Local 388, a contended in-
ternal union matter; and for which he was disciplined by
fore, the reasonableness of which amount it contends is
not a relevant factor to Section 8(bXl)(A) consideration.
Finally Respondent argues that for any violation of the
statute that may be ultimately found to exist herein, such
broad remedial relief sought by the General Counsel is
wholly unwarranted as generally such a remedy is to be
reserved for egregious cases.
It is observed that there is no 8(e) allegation charged
or raised in the instant complaint and hearing thereon.
Nonetheless, the General Counsel does contend in brief,
i.e., concerning Section 8 (b)(4) that no contractual clause
or union bylaw can legalize Respondent's secondary
object revealed by the record of forcing a boycott of the
Pitney-Bowes jobsite because a nonunion plumbing con-
tractor had at one time worked there. 6 Thus in her brief,
the General Counsel additionally has contended that on
the evidence fording is warranted that Local 388 viewed
the (entire) Pitney-Bowes jobsite as "hot" because Qual-
ity Plumbing had previously worked there and that (con-
trary to Griffith's assertion that Benner could have
worked if Quality Plumbing were not there) Local 388
actually did not want Daily Heating or any of Respond-
ent's members to work there. The General Counsel also
contraargues that internal union discipline for crossing a
picket line constitutes a violation of Section 8(b)(1)(A),
whether such picket line be lawful or unlawful.? I now
6 Here presumably contention is being advanced based on evidence
that Quality Plumbing was not on the job on June 11. In that regard it
may be observed Respondent has contracontended at the hearing that it
was given to understand that it would be notified when Quality Plumbing
would be off the job and in brief that in any event, with intermittent
work performance by Quality Plumbing (as is contended was the case),
inference should be (only) that the picketing of Daily Heating, at the gate
regularly used by Daily Heating, was primary picketing of Daily Heating
over their dispute , as Local 388 acted reasonably in view of the fact that
Quality Plumbing was also still on the job
7 The General Counsel 's reliance is placed on Painters Local 1621 (Ala-
meda Glass), 242 NLRB 1011, 1012 (1979); and Mississippi Gulf Building
Trades Council, 222 NLRB 649, 650 (1976).
PLUMBERS LOCAL 388 (DAILY HEATING)
turn to the evidence offered by the parties in support of
these various and conflicting contentions.
B. Background
1. The construction period
Construction on the Pitney-Bowes building began
about mid-October 1980. Hoffman supplied the construc-
tion project superintendent, Ralph Veld. Veld had been
employed by Hoffman for some 7 - 1/2 years and during
that period had been its construction superintendent on
some 11 or 12 projects. However, Veld had not previ-
ously been superintendent on a project on which a picket
line had appeared . Hoffman performed some limited car-
pentry service , viz. to enclose windows (because of a late
delivery of windows) to seal off snow and inclement
weather, but essentially Hoffman subcontracted all the
required construction to other companies . Construction
was completed in July; and the building was occupied by
the lessee, Pitney-Bowes, earlier in July.
2. The jobsite characteristics
The project site is essentially one located on a corner
lot, bounded on the south by Keystone Street and on the
east by Enterprise Street with which Keystone Street
perpendicularly intersects at the southeast corner of the
lot. The building, as constructed, is approximately 65 feet
by 110 to 112 feet , and it runs in its (greater) length
south to north. The building's east wall is set off 60 feet
from the curb of Enterprise Street, and its south wall is
set off 80 feet from the curb of Keystone Street. As of
October 30, 1980, there was but one established entrance,
an (unfinished) driveway leading from Keystone Street
(the Keystone entrance). The Keystone entrance drive-
way is located on the west side of the lot, and it is laid
out in an essentially northernly direction . It leads into a
parking lot area (west of the building) which abuts on
the southwest corner of the building where there is lo-
cated in the lower west wall a main building entrance
which leads to the lobby of the building. There is also an
entrance to the building on the east side, but approxi-
mately two-thirds up the length of the east wall (north),
facing Enterprise Street. Veld's trailer offices were locat-
ed on the property, just west of the Keystone entrance.
There was a loading ramp constructed on the northern
part of the building, but no driveway to it directly from
Enterprise Street. There was also a jobsite supply trailer
located just north of the northernmost property line, thus
off the property. The only access to the above ramp
from Enterprise Street would be to go around the supply
trailer. It does not appear such an approach was ever
used.
3. The prior picketing
Quality Plumbing , which employees are not represent-
ed by a union, was awarded and has subsequently per-
formed the plumbing and sewer work. Quality Plumbing
commenced its work in late October 1980. It was on the
job initially for 2 weeks in a row , but thereafter, and for
unspecified times, was to be found on the job for a few
1263
days, and off for a few days , though it might also be
gone from the job for weeks at a time.
Doug Griffith , Local 388's business manager for 19
years, and a member of Local 388 for 25 years, was per-
sonally aware that Quality Plumbing 's wages and fringe
benefits were significantly less than those which had
been negotiated by Local 388 with the Lansing Mechani-
cal Contractors Association.8 On October 29, 1980, Veld
observed Griffith standing by his trailer office , near the
Keystone Street entrance . Griffith identified himself to
Veld, and according to Veld's uncontradicted testimony
at that time said : "I notice you don't have any union
plumbers on the job." Veld replied: "Oblviously not."
Griffith turned away , saying as he did : "You'll have
pickets out here tomorrow."
On the next day Local 388 established its picket line
by the Keystone entrance . Jack Ciucci, 14 years a
plumber and a member of Local 388, regularly per-
formed the picket line duty during the period from Octo-
ber 1980 through the more material period of June 1981.
Ciucci would normally arrive at 7:30 a.m. and picket the
jobsite until 4 p.m.9 The picket sign used by Local 388
was 18 inches by 24 inches, and from October 1980 until
June 11 it had identified that the Union 's labor dispute
was with Quality Plumbing. Basis of dispute was infor-
mationally stated on the picket sign to be that wages,
hours, and working conditions of Quality Plumbing were
substandard to the wages, hours, and working conditions
negotiated by Local 388, herein referred to as an area
standards picketing sign.
A few days after the Local 388 picketing started, prob-
ably in early November, pursuant to Hoffman home
office decision and instruction , Veld established what he
described was to be a two (reserve) gate system.' ° He
established gate 1 at the Keystone entrance to serve all
the "union trade" companies . Gate 2 was established 360
feet away (as measured east along Keystone Street and
north along Enterprise Street) to serve the "non-union
trade" companies . The gate 2 sign identified an entrance
for Quality Plumbing as well as for Anderson Concrete,
P & K Steel Service , Clark Foundation, Inc., and Spar-
tan Roofing Co. Veld acknowledged that there was no
driveway to the building from gate 2, and indeed also ac-
s According to Griffith 's uncontradicted testimony he had been called
by Bob Guthrie, Quality Plumbing 's president, and an earlier meeting
was arranged at a neutral location in October 1980. Griffith relates that
although they did not discuss the Pitney-Bowes project , there was an ex-
tensive discussion between them about wages , hours, and working condi-
tions as Quality Plumbing was considering signing an agreement.
9 In October 1980, and for some period thereafter , Ciucci was suffering
some residual effects from a prior leg injury. Then, and throughout his
picketing, Ciucci would normally set a pipe in the ground , place the
picket sign in the pipe , and spend his time basically in his parked car,
observing the jobsite. Pursuant to union attorney instruction, Ciucci at
some point in time began keeping a log of all truck and vehicle visitation
to the jobsite, including taking pictures frequently of the vehicles of sub-
contractors working the jobsite , inter alia, Quality Plumbing , Daily Heat-
ing, and Capital Excavating.
io Although all parties are in agreement that the subject of the legality
of Local 388 's prior picketing (subject of Hoffman's charge, Case 7-CC--
1162, settled informally May 22) is not an issue herein, nor unfair labor
practice finding sought thereon, some facts of the earlier site picketing
arrangements are a desirable background for the understanding and eval-
uation of the actions of the parties in June 1981 which are in issue.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledged that the site area near gate 2 was left un-
graded and impassible by truck or car." However, Veld
relates, with some corroboration from Ciucci, that the
"non-union trade" employees would park their cars on
Enterprise Street and walk from some 50 feet (or more)
south of the placed gate 2 to the building entrance on
the east side, such entrance being located about 100 feet
south of gate 2. Veld has also testified that his idea of the
reserve gate 2 was that it permitted entry from all of En-
terprise Street and that he so informed the contractors,
whose affected employees would walk to work in that
general fashion, unless the ground was muddy. Veld also
testified that the southeast section of the lot was essen-
tially level, and Ciucci credibly confirmed that Quality
Plumbing trucks (at least in material time) would enter
the jobsite over the curb of Enterprise Street and drive
in front of the building, to the west side, but even then
not always.12 In late May and early June, Ciucci was
carrying on his picket activity at that location, on Enter-
prise Street, apparently flowing from an adjustment of
earlier charges and if not pursuant thereto, acceptable
thereunder which brings us to the Union's renewed pick-
eting at gate 1 on June 11, but this time against Daily
Heating.
C. The Evidence
1. Daily Heating 's bargaining history with Local
388
Michael J. Hamilton is currently the president of Daily
Heating having been employed for 20 years and served
for 5 years as vice president. Stu Hulce, former presi-
dent, is currently vice president. There is conflict about
when they exchanged corporate positions. Is Daily Heat-
r i The area between the building and Enterprise Street was not finally
graded until late June. Veld asserted that the area near gate 2 was not
graded due to the picketing. However, Granger Excavating was on the
jobsite as early as December 1980 and as late as May 1981. I do not find
such assertions convincing.
ra The General Counsel has established that despite the establishment
of gate 2 for, inter alia, Quality Plumbing, Local 388 had until May pre-
viously conducted its picketing at gate 1 , and Respondent Union (in turn)
contended gate 2 was ineffectively established and maintained . Ciucci tes-
tified credibly (with log and pictures contemporaneously taken) that a
Quality Plumbing truck entered (or left) the jobsite at Keystone entrance
on November 12 and 26 and December 4, 1980 , March 20 and 30, 1981,
and June 1 , 1981, as well as testifying that he did not take pictures of all
the times that Quality Plumbing had used the gate 1 entrance in a given
week, and being unable to place the date of one additional picture taken
while it did so. Again, the legality of Local 388's pre-June picketing is
not in issue . However, the foregoing is background rendering plausible
Local 388's contention that an arrangement was made for a new location
of picketing Quality Plumbing , where it entered normally from Enter-
prise Street . Nevertheless , the credible evidence reveals that a Quality
Plumbing truck had again entered the jobsite at gate 1 on June 1. Re-
spondent did not on that occasion seek to reestablish its picketing of
Quality Plumbing at gate 1, but rather had continued to picket on Enter-
prise Street near the arranged entrance point normally used by the Qual-
ity Plumbing trucks.
la Hamilton related (as of the hearing in October) that he had been
president for 6 months , which would place him in office as president as
early as April . I credit Hamilton's recollection , and find that Kretzinger
was simply mistaken in her testimony thereon . (In contrast, Sheila Ann
Kretzinger, a dispatcher for Daily Heating, had related that as of June 11
Hamilton was then vice president and Hulce president.)
ing is a member of Lansing Mechanical Contractors As-
sociation and a party to the current collective -bargaining
agreement negotiated by the latter with Local 388, effec-
tive June 1, 1980, through May 31, 1982. Both Griffith
and Hamilton have testified that all of Griffith's business
contacts with Daily Heating were through Hulce. Daily
Heating apparently has been continuously signatory,
from the earliest times, to contracts with Local 388. In
any event Griffith confirms that he has had a business re-
lationship with Daily Heating for 15 years, but uncontes-
tedly in that period had dealt exclusively with Hulce.
2. Current collective-bargaining provisions, in
regard to work preservation and fabrication
a. Work preservation clause
The current agreement provides in part in article II,
section 12, "Work Preservation," as follows:
(A) No employee covered by this Agreement
will be expected to work or be required to work on
any job or project on which a worker or person is
performing any work within the said jurisdiction of
the contracting Union if said worker or person is
performing such work for wages or hours or under
any conditions of employment which are less favor-
able to employees than those established by this
Agreement; provided further that the Employer
shall receive notice twenty-four (24) hours before
any employeee asserts any right herein contained.
The parties hereto agree to meet immediately on re-
quest with respect to any matter arising under this
paragraph.
b. Fabrication
Article II, section 13, "Fabrication ," in part provides
as follows:
(A) Refusal to pass through a lawfully permitted
picket line will not constitute a violation of this
Agreement.
(B) As a primary working condition, it is agreed
that the following items and work shall be fabricat-
ed or performed on the job site or in the shop of
the Employer signatory hereto by employees cov-
ered by this Agreement.
c. Grievance and work stoppage
Article XIX provides for a standing grievance commit-
tee composed of three members from the Association
and three members from the Union, whose declared pur-
pose "shall be to adjust any difference which might arise
between the two parties" and that the grievance commit-
tee shall meet within 48 hours on written notice and
(normally) render a decision within 24 hours thereafter.
Article XIX, section 5(A), specifically provides:
Any violation of this Agreement or any other griev-
ance shall not be cause for stoppage of work until
PLUMBERS LOCAL 388 (DAILY HEATING) 1265
said violation or grievance has been considered and
acted on by the Committee.14
d. Exclusive referral system
Article III provides for the Union 's operation of an ex-
clusive nondiscriminatory referral system with out-of-
work applicants registering in three groups and , insofar
as pertinent herein , group I covering:
All applicants for employment who are qualified
journeymen and who have employed as such for
five (5) or more years in the area constituting the
normal construction labor market.
not install the equipment because of the Local 388 picket
on the job . Hoffman in the interim made other arrange-
ments with Thomas Heating of Grand Rapids to perform
the installation . (The record does not reveal precisely
when .) According to Hamilton , Daily Heating has per-
formed no installation work at the jobsite, and the instal-
lation was deducted from the original purchase order
from Hoffman. Hamilton was aware the Daily Heating
field superintendent had visited the job (only) once, but
asserted he was unaware of any deliveries or other visits
to that jobsite by his company, though he repeated that
Hulce had handled that job and would have been the
one to be contacted. (Hulce did not testify herein.)
e. The plumbing and sheet metal work involved
Griffith has testified , without contradiction that sheet
metal work, as well as plumbing and pipefitting work, is
involved in the installation of air -conditioning systems
and that when there is a plumbing and pipefitting con-
tractor and a separate sheet metal constractor , a compos-
ite crew is utilized , and that if there is one contractor
who has a combination shop , one classification may do it
all. Daily Heating has two plumbers , Tom Benner and
Dan Alexander, each of whom is a member of Local
388. Daily Heating also employs a (sheet metal) superin-
tendent and separate sheet metal workers who would,
however, be covered by another contract. According to
Griffith's uncontradicted testimony , in regard to the
heating and air-conditioning units herein , all the piping
work and the work related to the freon , compressors,
and pumps was fitters ' work . Griffith acknowledged that
all the duct work would properly be performed by sheet
metal workers. It was uncontested that certain work
being performed by Quality Plumbing would be included
within "any work within the said jurisdiction of the con-
tracting Union."
3. Daily Heating's construction contracts on the
Pitney-Bowes jobsite
It was in March, according to Hamilton , that Daily
Heating had first made its arrangements to perform cer-
tain work for Hoffman . Daily Heating was initially to
supply, install, and service the heating and air-condition-
ing system for the Pitney -Bowes Building , Hamilton did
not know if Local 388 had (subsequently) ever contacted
Daily Heating to advise that working plumbers inside the
job alongside nonunion plumbers who made less wages
and hours would be in violation of the collective-bar-
gaining agreement , but he did know that Daily Heating
had subsequently informed Hoffman that Daily Heating
would not be able to install the systems per their original
contract. Hamilton also testified that though they did
subsequently supply all the materials , Daily Heating did
14 In connection therewith, it may be observed that the preamble to
the agreement recites that the agreement , inter alia:
.. is for the purpose of preventing strikes, lockouts , sitdowns, or
any other method of interfering with or delaying the progress of any
work, and facilitating peaceful adjustments of all grievances and dis-
putes which may arise from time to time between the parties of this
Agreement , and for the further purpose of advancing and promoting
the best interest of all persons engaged in the plumbing , heating and
piping industry within the jurisdiction of Local Union No. 388.
4. The Union's supported observations
Griffith testified that in early spring he was made
aware (through a friendly operating engineer) that two
big air-conditioning units on the roof had been supplied
by Daily Heating. Ciucci testified that on May 20 a
Daily Heating truck parked at the curb , and a man then
came up to him and asked Ciucci if it was alright if he
went on the jobsite. Ciucci told the man that it was fine
as far as he was concerned, that he did not care what he
did. Ciucci related that he observed the man go onto the
jobsite, first into the building , and then to Veld's trailer
office. The man remained about an hour on the jobsite
and then left . Ciucci had observed that the man had car-
ried no tools onto the jobsite. Ciucci also did not see the
man do any work, though Ciucci could not observe the
inside of the building because of the window barricades.
Ciucci further relates that the Daily Heating superintend-
ent came to the jobsite on May 22 and went into the
trailer. Again he saw no tools brought on the job, nor
did he observe work done . Ciucci could not recall how
long the Daily Heating superintendent had stayed on the
job on that occasion. However, on May 26, Ciucci ob-
served a Daily Heating 1 -ton white van with blue cab (a
Daily Heating deliver truck) enter the jobsite via Key-
stone gate 1 entrance and park by the southwest comer
of the building . Ciucci, from a distance of 100 feet, ob-
served Daily Heating deliverymen unload sheet metal
material for about an hour. Again Ciucci observed no
tools were brought on the job. On May 29 a Daily Heat-
ing van again came to the jobsite and entered at gate 1.
Ciucci relates he figured it was the superintendent, but
Hamilton testified that the superintendent regularly
drove a pickup not a van . Again Ciucci observed no
tools, and no work performed . On June 8 Ciucci again
observed a Daily Heating van had entered the jobsite,
and the man went to the trailer (Ciucci presumed) check-
ing the job out as previously, and then left the site.
Again no tools or work performance was observed. Grif-
fith confirmed personal awareness that the Daily Heating
sheet metal superintendent was on the job several times.
Griffith presumed therefrom that Daily Heating was
going to do the sheet metal work . The Union was not
notified to the contrary . 15 In any event, there was no
picketing change in this period.
's Griffith testified in that regard that he had not asked Hulce about
the sheet metal work , indeed, that he had never called Hulce to find out
Continued
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The questioned extent of Hamilton's awareness
Hamilton initially testified about awareness of only one
jobsite contact by his superintendent . However, Hamil-
ton acknowledged the described 1-ton white blue cab,
white box as his company's delivery truck, but asserted
he was unaware that it had made a delivery through gate
1 on May 26, and asserted he was unaware also that a
Daily Heating truck was sent there on May 20 or 22, or
what they contained, or if they delivered . Hamilton ac-
knowledged that his plumbers do not drive the above 1-
ton truck delivery truck. Although Hamilton testified
that Daily Heating did no installation at the jobsite, he
only belatedly acknowledged that all the sheet metal ma-
terials for the job had been fabricated at the Daily Heat-
ing shop for Hoffman; though he elsewhere relates the
contract arrangement was that Thomas Heating would
bring to Daily Heating the list of materials that were to
be fabricated. According to Hamilton the fabricated
parts were generally picked up by Hoffman or Thomas
Heating . Hamilton continued to assert his own lack of
knowledge about any Daily Heating delivery of the fab-
ricating parts. There is no evidence that the Union was
aware, or had reason to know of the fabrication arrange-
ments made by Daily Heating. Hamilton categorically
denied that his company has any relationship to Quality
Plumbing. Hamilton otherwise testified that he had no
subcontract with Thomas Heating, possessed no right to
control the method of installation , and that he had sent
no foreman to give Thomas Heating instructions about
how to correctly install the equipment or the fabricated
equipment. Hamilton testified that Russell Decess dis-
patched and/or made warehouse deliveries (e.g., in
regard to sheet metal). Decess was not called to testify.
However, Veld has confirmed Hamilton's testimony that
prior to June 11, Daily Heating had performed no work
on the jobsite, but has not testified concerning deliveries.
In any event, it is clear and I find that Daily Heating
made several visits and deliveries, prior to June 11,
through gate 1, and that throughout the foregoing, Local
388 did not seek contact with Daily Heating, nor change
its place of picketing until June 11.
6. The events of June 11
a. The assignment of Thomas Benner
Thomas Benner , who has worked 8 years for Daily
Heating , has also been a member of Local 388 for 6
years . On the morning of June 11, Benner received an
assignment from Service Manager Preston to repair a
heating and air-conditioning unit on the roof. (Preston
did not testify.) According to Benner the unit was one
that had been damaged in shipment . Benner has related
his understanding was that Daily Heating had a contract
with Carrier Air Conditioning to repair such damaged
equipment . However, as noted, Hamilton has testified
that Daily Heating had a contract with Hoffman to serv-
ice the equipment that it had originally supplied to that
what work he had and further that from no source was he ever made
aware that Daily had the original instal ation work, but was not going to
do it
jobsite, but declined to install because of the Local 388
picket, discussed further, infra.
Benner recalls that he arrived at the Pitney-Bowes job-
site about 9:05 a.m. Benner initially drove to the intersec-
tion of Keystone Street and Enterprise Street where he
observed that there was a Local 388 picket , seated in his
car on Enterprise Street, with a Quality Plumbing picket
sign visible in front of the car . Benner immediately re-
ported that circumstance back to his home office by
radio to find out if it was definitely okay for him to go
on the jobsite. Thereafter, Benner parked his van on
Keystone Street within 20 feet of the driveway. Benner
then entered through Keystone gate 1 , having been told
it was a two-gate system and that as long as he went in
the Keystone gate 1 , there would be no problem . Benner
took his tools up on the roof and began work on the
repair of the unit. Benner did not see Griffith that morn-
ing until about 11 a.m. when from the roof he observed
Griffith standing talking to Ciucci. After a while, he
looked again and noticed that Griffith was gone.
b. Gucci's observation and report
Ciucci testified that he had observed the Daily Heat-
ing truck come to the jobsite in the morning of June 11
and park at the curb on Keystone Street . Ciucci ob-
served the Daily Heating employee , recognized by
Ciucci as being a Local 388 member, take tools out of
the truck, and he observed the employee make a couple
of trips from the truck to the building. Ciucci also recog-
nized a brazing torch, wrenches, and toolbox were taken
on the jobsite. Ciucci has described the same , without
contradiction , as being a pipefitter-plumber's tools. Ac-
cording to Ciucci when Griffith arrived at the jobsite t a
(recalled by Ciucci as being between 11 to 11:30 am.,
but by Griffith, and more likely , between 10 to 11 a.m.),
Ciucci reported that there was a member on the jobsite,
and shortly after that report, Griffith left the jobsite.
Griffith confirmed that when he arrived at the jobsite,
that Ciucci had reported to him that Ciucci was pretty
sure that one of their members , a plumber , was on the
job doing work , though he did not know who it was.
However, Ciucci has testified that he knew the man as
Tom. I infer and find Ciucci would have reasonably
passed that information also on to Griffith. Griffith has
otherwise acknowledged that he felt at the time that
Daily Heating should not have had someone working on
the job, while an employer, doing plumbing work, was
not providing the wages, hours, and working conditions
that Local 388 had negotiated . However, Griffith relates
that Ciucci was not sure what the Daily Heating plumb-
er was doing on the job , and they could not see him ac-
tually working.
c. The Union's notification in regard to Quality
Plumbing 's presence on the jobsite
Veld's testimony was revealing, if not inconsistent, in
regard to Quality Plumbing work and departure. Thus,
although Veld has testified at one juncture that his office
16 Griffith has corroborated Ciucci that Ciucci did not call him to the
jobsite, and Griffith testified that he normally visited this jobsite daily.
PLUMBERS LOCAL 388 (DAILY HEATING)
had notified the NLRB Regional Office between June
11-17 with intent that the Union be notified that Quality
Plumbing was off the job , and more pointedly, at one
point, that there was no question in his mind that during
the week during which Daily Heating 's name was placed
on the picket sign that Quality Plumbing was not work-
ing, Veld later testified (from daily records kept of the
subcontractors' operations on the jobsite) that Quality
Plumbing had worked on the jobsite on June 10 and did
so again on June 15. That Quality Plumbing theretofore
worked intermittently is not open to serious question.
Significantly , the Union was never notified by Veld (or
Hoffman or Quality Plumbing) directly of Quality
Plumbing's temporary or permanent departures from the
jobsite, nor is it affirmatively shown by anyone before
the Union's receipt of a certain letter dated June 19
(Friday). 17
d. Griffith 's attempts at an immediate contact of Daily
Heating
Griffith has testified, also without contradiction, that
he had first called Daily Heating on the phone , identified
himself, and asked for Stu Hulce, whom Griffith (still)
understood to be boss, and who had been the man with
whom he had always done business . Griffith was in-
formed that Hulce was not in . Griffith asked for some-
one else who was responsible for the place , but no one
"seemed" to be in . However, Griffith was told that
Hulce was expected to come in to the office later. Grif-
fith relates that he subsequently went out to Daily Heat-
ing's office to pursue discussion of the matter with
Hulce. There is much conflict about what actually tran-
spired when Griffith arrived there.
On Griffith's arrival at Daily Heating (as he recalled),
about I1 a .m., Kretzinger asked Griffith if she could help
him. Kretzinger 's recollection was that Griffith had not
asked to speak to anyone , but just demanded to know
who was on the job. ' 6 Thus Kretzinger relates that Grif-
fith had slammed his fist down and asked her: "Who in
the hell do you have working down at Pitney-Bowes?"
Kretzinger replied she did not know , but it was probably
one of the servicemen . Griffith asked who it was. Kret-
zinger replied just a minute, the manager was not in, she
would inquire of someone . After the bookkeeper had
identified Griffith to Kretzinger at Kretzinger's request,
Kretzinger informed Vice President Hamilton that Grif-
fith was there , and he wanted to know who was working
down at the Pitney-Bowes jobsite. According to Kret-
rT Thus in a Regional Office letter to the Union dated June 19, ad-
dressed to the Union's attorney of record, the Union was (of record) first
advised , only in regard to earlier (settled ) Case 7-CC-1162 that "Ac-
cording to the Charging Party (therein Hoffman), the primary employer,
Quality, is off the job and had been using the entrance designated for it
while it was still on the job." In the later regard, I note in passing that
Veld has also acknowledged at hearing herein that a Quality Plumbing
foreman, driving a marked pickup , had used the Keystone gate I en-
trance at least once a month and as often as every 2 weeks. Veld offered
as explanation that the Quality Plumbing had not done any work on
those occasions.
is Kretxinger described her duties as answering the phone and waiting
on customers at the counter, though presently she sets up calls for the
servicemen (plumbers/fitters) and dispatches them. However, at that time
Robert Preston, service manager, regularly dispatched the servicemen.
1267
zinger, Hamilton instucted Kretzinger to tell Griffith
(only) that she knew nothing about it; and that Stu Hulce
could handle the matter as Hulce knew what was going
on with the pickets. (Hamilton belatedly confirmed that
Griffith was in the office, but that he directed Kretzinger
to tell Griffith to talk to Hulce.) Kretzinger returned to
Griffith, and told him that she did not know anything
that was going on. Kretzinger relates that Griffith then
said that he knew who the man was down on his picket
working, that it was Tom Benner who was one of his
union employees, and that Benner had no right to be on
the picket. Kretzinger repeated she did not know what
was going on, and that she would check into it and find
out and do what she could about it. According to Kret-
zinger, Griffith then said, "[s]omebody better get their
head out of their ass and pull the man off the job, or he
is going to be fined a thousand dollars." Kretzinger also
(though more tentatively) recalled that Griffith said he
would close the doors for it. Kretzinger reported back to
Hamilton who instructed her to contact Hulce, which
she was able to do at noontime.
Griffith's version is that he had arrived at Daily Heat-
ing some time after 11 a.m. and testified that he first
asked the young lady (Kretzinger) for Stu Hule, but that
he was told that Hulce was not in. Stating that he had
called earlier and that Hulce was supposed to be there,
Griffith then asked if there was anybody (else) there
with authority. Kretzinger went to the back, returned,
and said there was no one there. According to Griffith,
the point of his visit to Daily Heating was to talk to
Hulce to find out why they were working on that
(Pitney-Bowes) jobsite. Griffith admits that by this time
he (already) felt that Daily Heating was violating their
contract. Confirming that on inquiry he was told that
there was no one with authority there, Griffith also ac-
knowledged that he was upset, and his version continued
that he then told Kretzinger: "Well perhaps if I close
this place down, I can find somebody that can tell me
what is going on." Griffith explained that he hoped by
saying so that he would be able to get to talk to some-
body in authority about it. According to Griffith as he
left, he also said, "When Stewart [Hulce] comes in, have
him call me-." Despite Griffith's visit and noon contact
with Hulce by Kretzinger, Griffith gave uncontradicted
testimony Hulce did not call him later that day, indeed
has not thereafter.
Griffith has otherwise denied that he asked Kretzinger
who the employee was that was working, though he
frankly admits that it was his intention to ask someone
else (management) who was on the jobsite, and specifi-
cally denied pounding his fist. Griffith has ft r4her denied
that he told Kretzinger that he was going to find Benner
$1000 (asserting that he has no authority to fine) or that
he said that Benner should get his head out of his "ass."
Although Griffith at one point appears to have momen-
tarily hedged to the extent of assertion that to have the
man removed was not exactly or a part of the reason for
going down to Daily Heating's shop at that point in
time, but to talk to Hulce, I find the more plausible ex-
planation was Griffith's otherwise candid acknowledge-
ment that it was his normal procedure to make an initial
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inquiry about the person working on such a jobsite to see
if he could get the other side (management) to agree to
having the person removed.
It is preliminarily concluded and found that Griffith
went to Daily Heating's shop on June 11, primarily to
talk to Hulce, who was his normal contact with that
company, to find out why Daily Heating had sent a
plumber to work on the Pitney-Bowes jobsite, in appar-
ent breach of their contract, and as well to make a re-
quest for the man's removal . Despite having called earli-
er and being informed that Hulce would be in later,
when Griffith arrived at the shop , he inquired after
Hulce and he was again told that Hulce was not there. I
am persuaded by the weight of credible evidence that
there was a subsequent inquiry by Griffith concerning
availability of someone else in management to talk to
him on the matter, but that after Kretzinger's departure
and return Griffith was told by Kretzinger only that she
did not know anything about it, from which Griffith
(reasonably) concluded it seemed that no one was there,
though Hamilton was present at the time.19 I further
conclude and find it to be far more plausible than not
that Griffith during the conversation threatened a possi-
ble closure of the Daily Heating shop as a stated incen-
tive to get management to be available to talk to him
about the situation as he relates , rather than as Kret-
zinger appears to recall was tied to enforcement of a
Benner fine. Nonetheless, I am convinced that Griffith at
this time did make inquiry for confirmation of who was
on the job, and request for management's removal of the
plumber, and gave notice alternatively that a $1000 fine
is going to be imposed on Benner, whether Benner was
actually named or not. 20 I do credit Griffith that he re-
19 Although Kretzinger expressed no recollection of a mention of
Hulce being made by Griffith, I view it as simply implausible that Grif-
fith, in circumstances of prior uncontested call for Hulce, took notice of
Hulce's anticipated return and Griffith's present visit to the shop, and
that Griffith would not have made the initial inquiry after Hulce and rea-
sonably for someone else with Hulce 's continued absence. Had Griffith
been interested in only a confirmation of Ciucci's and Griffith's (I find)
already reasonably suspected Tom Benner's presence on the jobsite, it
would seem Griffith could as well have made appropriate inquiry over
the phone, or observe departure. Moreover, Hamilton's assertion that he
had directed Kretzinger to tell Griffith to talk to Hulce was not corrobo-
rated by Kretzinger and, with Griffith's credited distress over inability to
talk to management, her additional relations about subsequently telling
Griffith that she would try to find out about it and do what she could is
neither convincing that an instruction by Hamilton had been followed
that she tell Griffith to talk to Hulce because he knew about the pickets,
nor even indicate a willingness to reveal that Hamilton was there at the
time. In short there are simply too many points of inconsistency to fully
credit Kretzmger's recollection or Hamilton's account in this area
so Finding made is based on facts deemed more supportive of Kret-
zinger on this matter, than Griffith's denials which did not squarely meet
Kretzinger's testimony. In addition to the latter, Griffith admitted to
being upset at the time over the presence of a plumber on the jobsite
(long picketed by Local 388) and in his view accomplished by Daily
Heating in direct breach of their contract, and Griffith was frustrated as
well over his inability to talk to Hulce, or any other member of manage-
ment, including thus inability to follow his usual procedure with them of
requesting management for the removal of the man from the job. Under
all the above circumstances I find it to be more plausible than not that
Griffith said to Kretzinger during their conversation, whether or not ac-
companied by a fist pounding and actual identification of Benner by
name, as she otherwise does credibly relate was more colorfully stated,
that someone (management) had better get more reflective, and pull the
man off the job, or he is going to be fined $1000 (as is made to appear
quested that Hulce call him , and that he gave his tele-
phone number to Kretzinger for that purpose . As noted
after reporting to Hamilton , Kretzinger made her report
to Hulce about noon time.
e. The Daily Heating picket line established
After Griffith left Daily Heating , he first returned to
his office . He received no return call from Hulce. At his
office Griffith had cut a new name insert for the Union's
area standards sign then in use . Griffith next returned to
the jobsite, inserted the name of Daily Heating (and, in
so doing, completely obscured the name of Quality
Plumbing). Griffith then moved the Union 's picket from
its Enterprise Street location to gate 1 located by the
Keystone driveway entrance . Although Union Contrac-
tor Daily Heating (one of several) was not named on the
gate I sign captioned "Entrance For All Other Trades,"
it is uncontested that Daily Heating had been and was to
use gate 1 on Keystone Street.
Griffith remained on the newly established picket line
until 2 p .m. On later checking his office , he still did not
hear from Hulce, nor had he as of the date of the hear-
ing.
Griffith has testified that the reason for the Union's
change in picketing of the Employer at this time was be-
cause Daily Heating was thought by the Union to be
violating its current working agreement in that Daily
Heating was allowing or forcing members of Local 388
to perform work on the same jobsite along with people
other than members of Local Union 388 who were
(known by him to be) doing the same or similar work as
Daily Heating does (but for less pay), thereby breaking
down Daily Heating employees' working conditions es-
tablished in the contract , viz that employees would not
be expected or required to do so.
Griffith has testified in the latter regard that if Quality
Plumbing was not working on the jobsite at the time,
there would have been nothing wrong with Benner
working on the job. Griffith , however, has testified, and
I conclude and find under all the circumstances , credibly
so, that it was his understanding at that time that any
time Quality Plumbing was not to be on the job, the
Union was supposed to be notified by wire, or mail, that
Quality Plumbing would not be present on the job.21
The Union has not sought to contest the testimony of
Veld to the effect that Quality Plumbing was not work-
ing on the Pitney-Bowes jobsite specifically on June 11.
However, Veld has also confirmed that Quality Plumb-
ing had last worked the jobsite on but the prior workday
clear in the record was frequently disciplinary action that had resulted in
many prior such cases).
91 In this respect , to the extent such may appear to be claimed of
record, I find Griffith (as far as this record shows) is unsupported in as-
cribing as a basis of his understanding, terms of some written agreement.
Nonetheless, I am overall persuaded and convinced from the remainder
of his testimony of having obtained to such an understanding from
having listened to a related telephone conversation between his attorney
(in his presence) and staff of the Regional Office , that a basis for such
claimed understanding existed . In any event I credit Griffith that he un-
derstood in material times that notice of absence or departure of Quality
Plumbing from the jobsite would be afforded the Union , as the same ap-
pears both plausible , and credible , under all the circumstances of record.
PLUMBERS LOCAL 388 (DAILY HEATING)
June 10 and as noted Griffith has testified , without con-
tradiction, that the Union was not notified by anyone
that Quality Plumbing was not going to be on the jobsite
on Thursday, June 11. Quality Plumbing clearly had a
jobsite history of intermittent work attendance. The
record is also clear that Quality Plumbing had not com-
pleted its work as of June 11, as it was established that it
was again working in the jobsite (at least) on Monday,
June 15.
The General Counsel established, and Griffith ac-
knowledged , that the picket sign 's language on June 11,
apart from the change made in the Employer's name
from Quality Plumbing to Daily Heating , was otherwise
exactly the same as had been theretofore used by the
Union to publicize its dispute with Quality Plumbing on
that jobsite, in short area standards picketing language,
and it is clear that Daily Heating had not altered its
wages and hours from contract standard . Griffith con-
tends that the sign used was an informational picket sign,
that Daily Heating had violated its contract in regard to
the employees ' (established) working conditions; and
with Griffith further asserting that although the sign
used did not specify that violation of contract was in-
volved , it was the standard sign that the Union used in
all such matters and did reference expressly , though inter
alia, working conditions, as was specifically therein in-
volved. Griffith candidly admitted that one purpose of
the Daily Heating picket establishment at gate 1 against
Daily Heating probably was so Daily Heating employees
would not cross the Union 's picket line to go to work on
the jobsite, but otherwise contends that was their deci-
sion to make , just as would be any (subsequent) removal
of its employees by Daily Heating , be a matter up to the
Employer.
f. The Benner-Griffith confrontation on June 11
Benner testified that about 12 noon on June 11 when
he was returning to his truck for more tools he observed
Griffith and Ciucci standing in front of his truck with
the picket sign naming Daily Heating . Griffith has con-
ceded that he already knew that the Daily Heating
plumber on the jobsite had to be either Tom Benner or
Dan Alexander (both members of the Union); but that
the first time he had actually known for sure that it was
Benner who was on the jobsite was when he observed
Benner come out the front door of the building and walk
towards them.22
Benner testified that, as he approached , Griffith asked
him what the "hell" he thought he was doing on the job
and that he told Griffith that he had been sent there by
Daily Heating to repair a unit on the roof. Griffith's ver-
sion of the commencement of their conversation was that
when Benner had first approached him, he had initially
aY I do not view it as thereby rendered implausible or inconsistent that
Griffith had earlier asked Kretzmger during their conversation who was
on the job, and then stated that he knew it was Tom Benner as Kret-
zinger has recalled, in the light of Ciucci testimony that he had recog-
nized the man as a member he knew by first name Tom only, and Grif-
fith's knowledge of the two union members employed by Daily Heating.
Veld's recollection of not having seen the new picket sign naming Daily
Heating until some 2 hours later does not warrant discredit of Griffith,
Gucci, and Benner relative to an earlier display.
1269
greeted Benner . Griffith also confirmed essentially that
he had then asked Benner , and that he did so snappily,
what in the "hell" are you doing in there ; with Griffith
offering an explanation , at hearing, that the latter had
just been an impulse question on his part, as he really
could not understand (at that time) what Benner was
doing in there . Griffith's further recollection was that
Benner had replied that he was working; and that Benner
had then asked Griffith: "Are you gonna tell me not to
work in there?" Griffith has testified that he specifically
told Benner at that time that he was not going to tell
Benner (to do) anyting. Although Benner 's recollection
disclaims that he asked Griffith if he should work or not,
he has (regarding the remainder) essentially confirmed
Griffith in that Benner has testified that Griffith did not
tell him to leave the job . Benner has however also testi-
fied that Griffith did tell him that it was illegal for
Benner to be working behind the picket line, though ac-
knowledged Griffith did not specify to him a claim that
it was a violation of the collective-bargaining agreement
for him to work on a jobsite where there were plumbers
working who were making less than scale in regard to
wages, hours, and working conditions (below area stand-
ards). Griffith has acknowledged that Benner did not tell
Griffith that he was forced or coerced. I do not credit
Griffith's denial that Benner had said he thought he
could work because it was a two-gate system . Ciucci, at
least at one juncture , has revealed that Benner had told
Griffith that he had thought it was okay to work on the
job. Although Benner does not specifically affirm same
as said to Griffith, Benner has testified compatibly there-
with that before going on the job he had checked his
office and his understanding was it was okay because it
was a two-gate system . Benner did testify that Griffith
told Benner that Benner should get it into his head that
he was working for Local Union 388 and not Daily
Heating, and that Benner should have called Griffith
before going on that job, the latter assertion being one
not specifically denied by Griffith, though the former
was. I conclude it to be more probable than not that
Benner, having made the prior inquiry of his own home
office , early on in the conversation told Griffith that he
had thought it was okay to work the job , as Ciucci has
at least momentarily revealed ; 23 probably did ask Grif-
fith (essentially), "are you going to tell me now I
shouldn't work" as Griffith recalls ; that during the dis-
cussion Griffith told Benner that he should have called
the Union before going on the job, but that he also told
Benner that he was not going to tell Benner what to do
at that point.
There is major testimonial conflict and difficulty with
resolution of the remainder of their conversation urged
as 8(bXl)(A) threats and 8(bX4XiiXB) inducements. First,
only with a recollection refreshed , had Benner testified,
and Griffith, with corroboration of Ciucci, has subse-
quently firmly denied that Griffith also told Benner at
this time that there had been some $9000 spent previous-
ly in attorney's fees and for picketing on that jobsite.
99 I do not extend finding (despite plausibleness thereof) that Benner
stated the reason (because it was a two-gate system) only inasmuch as no
one appears to have testified affirmatively thereto.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Ciucci has testified that he has recieved no pay for pick-
eting.) According to Benner, Griffith also told him that
Local 388 h.d been good to Benner , but at this time ev-
erylg was over;84 and that if Daily Heating 's doors
ever closed, Benner could not work any place else in
Lansing . Griffith has categorically denied making the
threat to Benner that if Daily Heating closed its doors
Benner would not work again in Lansing , and Ciucci has
firmly corroborated that there was no such statement
ever made.
In further support of his denial of having made such a
threat to Benner, Griffith also testimonially pointed out
that the contract explicitly provides for operation by the
Union of a nondiscriminatory exclusive referral system,
and he testified as well that he cannot in anyway, shape,
form, or manner keep a laid-off plumber from obtaining
employment under the terms of that contract. In con-
trast, on this very aspect, Benner's testimony was that he
was familiar how the Union's hiring hall system worked,
describing it as being that the name is put on a list of un-
employed at Local 388. However, he testified that he
was not aware that it is mandatory that his name be put
on the list because he did not have control over the list.
According to Benner he asked Griffith if he could get
his tools off the job and relates that in response thereto,
Griffith then told Benner that he did not give a "damn"
what Benner did . Benner thereafter went back to the
roof, gathered his tools, and returned them to his truck,
leaving the jobsite with the repair work he had been as-
signed to do uncompleted . According to Benner, as he
left, he said to Griffith: "I will probably be hearing from
you"; and he relates that Griffith responded, "You sure
will." Griffith denied that anything more was said as
Benner left in the truck. However, Griffith otherwise
confirmed that Benner had earlier asked him if it was al-
right if Benner picked up his tools and that Griffith had
again told Benner , "Tom, I am not telling you anything."
Griffith offered an explanation of his position as being
that Benner had already worked on the job, and at that
point he did not care what Benner did, and that he was
not about to tell Benner not to work then and he did not.
Griffith also has confirmed that Benner subsequently
made two or three trips back on to the jobsite and re-
moved his tools, doing so with a circumstantial appear-
ance of not having finished the job. Benner otherwise re-
lates that he had not been previously assigned to work
sa Time is some plausible basis for this remark . Thus, Benner has in
this regard testified that Daily Heating normally performs 90-percent res-
idential work, and 10-percent commercial work. Benner was clearly
qualified to do residential work. (Griffith confirmed that Benner was a
residential ale-adiYOitioning journeyman which covered single and multi-
story sircond#doning and heating work, but not commercial work.)
Benner asserts that he was also qualified to do commercial work and
indeed Benner has testified, without subsequent contradiction, that after a
Daily Heating pipefitter who did commercial work had earlier left Daily
Heating's employment, Benner had specifically inquired of Griffith
whether he should upgrade his own card in order to perform Daily Heat-
ing's commercial work, but was at that time informed by Griffith that it
was unnecessary for him to do so. On the other hand, Griffith not only
confirmed that he had allowed Benner to perform such work , but that he
had taken no action (to date) to prevent it (as he asserts he contractually
could) nor was such action contemplated, and Benner has testified to no
direct threat made in that regard , other than the indefinite or ambiguous
remark last related.
on the Pitney-Bowes jobsite nor was he thereafter, until
the picket line was removed. 25
7. Subsequent events
a. The continued picketing of June 12 (Friday) and 15
(Monday)
Local 388 continued to picket Daily Heating at gate 1,
on June 12 and 15, with Quality Plumbing conceded as
back on premises , working on June 15 . Employees of
other union contractors who regularly used gate 1 con-
tinued to work without any work cessation in the period
June 11 and thereafter except for employees of Capital
Excavating on June 16, to be discussed , infra.
b. The Grievance filed by Local 388
Griffith testified without contradiction that he prompt-
ly (within a few days of June 11 ) sent a wire to the presi-
dent of the contractual grievance committee , requesting
a meeting of that committee and inviting Daily Heating
officers to attend . Griffith did not attend , but a repre-
sentative of the Union did. According to Griffith, whose
testimony was unobjected to at the time given and
whose testimony I credit , the grievance committee acted
thereon in approximately 14 days, concluding that Daily
Heating had violated the agreement, but that there was
no sanction imposed and that the president of the Local
had the meeting proceeding in writing, which it kept.26
Hamilton related that he was aware that Hulce was con-
tacted by the grievance committee , and did not deny that
Hulce attended , though Hamilton asserts he did not
know whether the agreement was violated , nor if there
was any remedial action thereon . I credit Griffith's ac-
count in the above particulars.
ss Benner related that in the interim a nonunion company was hired to
do the repair of the unit, though it did not complete it, and that Benner
had to eventually complete the repair himself in August . The record oth-
erwise reveals that Thomas Heating was initially contracted to do also
this repair on June 12 . However , Veld recalled that some thermostat
(control) work was done by Daily Heating after the lessee moved in but
he was not sure if it was accomplished before or after the building was
turned over as completed I conclude it was more likely that it was com-
pleted before the building was completed and probably in July rather
then August as Benner recalled, but after picketing of the jobsite had
ceased.
Ya Nonetheless , opportunity was afforded the General Counsel for
view of the referenced union document, with the hearing ordered closed
on October 6 only contingently; that is, with provision made for both
counsels ' review of the document that evening , and for a report that
evening to the administrative law judge that production of the document
in evidence would be by stipulation of counsel, or the evidence on
review , elected to be foregone; but failing such, and either counsel notify-
ing intent to pursue same that the hearing then be continued for such lim-
ited purpose. Transcript herein of date of October 7 reflects counsel for
Respondent 's statement of understanding of both counsels ' report to me
thereon on October 6, principally , that the document was to be handled
by stipulation , which in that respect comports with my own recollection
of their joint report made the evening before. A document purporting to
be minutes of Local 388 in regard to grievance committee meeting, June
29, 1981 , has been subsequently forwarded by the reporter, marked as A.
Exh. I for identification . However, as no perfecting joint stipulation ap-
pears to have been later forwarded , nor it appear that either counsel has
requested independent pursuit thereof, A. Exh. 1 for identification is re-
jected and placed in the rejected exhibit file.
I
PLUMBERS LOCAL 388 (DAILY HEATING)
c. The picketing of June 16 and 17
Superintendent Veld relates that Capital Excavating
was awarded the subcontract to put in the driveways
and parking lot. The work involved providing stabilized
gravel fill and grading. According to Veld, on June 16,
Capital Excavating trucks came to the jobsite at 9 a.m.,
drove up to the Local 388 picket sign, and then backed
up and parked behind Ciucci's car, some 75 feet from the
picket sign. Veld observed the drivers subsequently con-
verse with Ciucci. Ciucci moved the picket sign from the
entrance back to the middle (apparently) of Keystone
Street. One of the drivers then went into Hoffman's trail-
er and called his business agent. Veld observed that the
business agent arrived later about 10 a.m. and conversed
with the drivers and Ciucci, which conversations he did
not hear . Veld relates that thereafter the Capital Exca-
vating drivers departed at 10:30 a.m. without working.
Ciucci confirmed that on June 16 two Capital Exca-
vating trucks (one hauling a bulldozer and another a
sand hauler) arrived at the jobsite, and parked at the
curb, and a driver came up to him. According to Ciucci
the driver first asked Ciucci if it was a legal picket and
when Ciucci replied it was a legal and formal picket, the
driver said that he did not want to cross the picket line
and that before he crossed it he was going to contact his
business agent. Ciucci confirms that when the business
agent arrived he first spoke to the drivers and then came
up and conversed with Ciucci. According to Ciucci the
business agent first introduced himself and asked about
the picket. Ciucci testified that he told the business agent
on this occasion that he was picketing the jobsite because
there was nonunion work going on there. The business
agent informed Ciucci that he would contact Griffith.
Then the business agent asked the drivers to take the
trucks back to the yard.
On the following day, the record reveals that Local
388 moved its picket back on to Enterprise Street. (Al-
though Ciucci's testimony was at one point confused in
this area, I rely additionally on Veld's confirmation for
clarification thereof. Confusion otherwise is probably at-
tributable on Ciucci's part to imprecision in regard to the
initial picketing continuance of picketing at gate I this
date and its early removal and, on Veld's part, in regard
to no picketing on June 17 at gate 1, to his later arrival.)
Local 388 had not been asked to do so by Hoffman nor
had Hoffman changed Daily Heating's entrance. There is
no direct evidence offered why Local 388 did so. The
only thing that appears of record is the effect of that re-
moval, accomplished early in the morning of June 17.
Thus, what is clear of record is that along with Local
388's early removal of its picket line on June 17 from the
Keysotne gate 1 to the Enterprise Street location where
it had more recently routinely picketed Quality Plumb-
ing the Capital Excavating drivers, on returning to the
jobsite on June 17 about 8:30 a.m., entered and complet-
ed their work without any further work stoppage in their
succeeding workdays. Nor, as noted, has there been any
other work stoppage on this job, other than Daily Heat-
ing's (as described above) and Capital Excavating on
June 16, only.
1271
d. The remaining picketing
It appears to be uncontested that Local 388's picket
sign had named Daily Heating for about a week, thus
from June I1 to 18. Although Veld did not recall seeing
a subsequent change of name, Ciucci has related that
pursuant to a Griffith instruction on the matter, the name
of Daily Heating had been changed back to Quality
Plumbing, though he could not recall the exact date.
Veld could not recall the last day that Quality Plumbing
had worked on the job, though the last day it is clear of
record that it did work is June 15. On the other hand
Veld testimony thereon (from daily records of work on
the jobsite) is left ambiguous by additional testimony
elicited by Respondent from Veld that his office had no-
tified the Regional Office in that week's period (e.g.,
June 11-18) that Quality was off the job, but not that it
was back on. Griffith was able to credibly confirm that
the change of picket sign back to naming Quality Plumb-
ing had occurred in the week before June 26.27 Veld
also could place the end of all picketing only generally
about mid-July, Ciucci placed it earlier about the end of
June or early July. As evidenced herein the Union was
sent a letter from the Regional Office staff, dated June 19
(Friday), though date of receipt is not shown, to the
effect that Hoffman had reported informally, inter alia,
that the Respondent had resumed picketing at the
"union" entrance, and that Qulaity Plumbing is off the
job and had been using the entrance designated for it,
though the letter also disclaims knowledge at the time
about what the true facts were. (R. Exh. 11 is received,
discussed infra.)
e. The internal union charges
Griffith brought internal union charges dated June 24
against Benner charging Benner with having violated the
oath and obligation, section 162, of the Union's constitu-
tion and by laws.ZB With description of the nature of the
offense specified as: "Working on the Pitney-Bowes job
located on Keystone Drive, Lansing, Michigan, behind
the picket line of Plumbers and Pipefitters Local 388."
Local 388 procedurally accepted the charges and the
same were served by letter dated June 25, with notice of
hearing scheduled on July 13. (On July 10 the instant
charges in Cases 7-CC-1172 and 7-CB-5255 charging,
inter alia, the inducing of individuals not to work at
Pitney Bowes job and the bringing of internal charges,
etc., as being violative of Section 8(b)(4)(i) and (ii)(B)
and Section 8(b)(1)(A).)
The record reveals that Benner attended the hearing
on July 13 before the Respondent's executive board.
Griffith and Ciucci relate that Benner pled guilty to the
charges, and according to Griffith in mitigation only
pled ignorance. However Benner relates that he pled
guilty to being on the job and that he did not feel that he
27 Griffith thus recalled it as occurring under personal family loss cir-
cumstances (of record) culminating on June 26, which I find wholly
credible.
Ss Inter alts, see sec . 162 which provides that the member "will not
perform any act in anyway prejudical to the best interest of the United
Association, but will at all tunes endeavor to promote its prosperity and
usefulness "
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was wrong in being there . Benner also testified that he
told the Local board that he had been sent there by
Daily Heating , there was an injunction posted , 29 it was a
two-gate system, there were other unions working the
jobsite, and he felt it was within his rights to go on the
job. In the light of the partial recollections of Ciucci of
record, and the plausibilities of Benner's testimony, I
credit Benner's account . Benner also testified and con-
firmed that he said at the time that he felt he had a fair
hearing . Benner was subsequently fined $2000. In due
course, on July 28, Respondent notified Benner that it
was petitioning the general executive board (Internation-
al) for approval of Respondent's disciplinary action taken
against Benner. By letter dated August 20 the Interna-
tional confirmed receipt of same and , inter alia, notified
Benner of his right to appeal, which Benner did by state-
ment filed with International which the Respondent did
not see until the instant hearing . In the interim on Sep-
tember 30 a further investigation or hearing was held by
an International representative , and the outcome thereof
was still pending as of the instant hearing.
D. Analysis, Findings, and Conclusions
Basic contentions of the parties presented in the scope
of the issues section need not be repeated; though addi-
tionally noted is that at hearing the General Counsel had
also contended that by virtue of Local 388 having picket
Daily Heating with the same "area standards" sign as it
had used to picket Quality Plumbing , with only Daily
Heating name change , and at a time when Daily Heating
had a current collective-bargaining agreement with
Local 388 and was paying employees the wages and
fringes as provided in the agreement , that (area stand-
ards) could not have been the real reason for Local 388's
picketing of Daily Heating . Because all along the true
primary was and continued thereafter to be Quality
Plumbing , the picketing of Daily Heating commencing
on June 11 was, so argues the General Counsel , with the
purpose to get Daily Heating , Hoffman, and others to
cease doing business with Quality Plumbing.
From October 1980 , and extending through material
times in June, Quality Plumbing, a nonunion subcontrac-
tor, worked intermittently on the Pitney-Bowes jobsite,
and it there performed work of a nature traditionally
performed by employees represented by Local 388. Prior
to the outset of the Union 's picketing, Business Manager
Griffith was aware that Quality Plumbing had estab-
lished for its employees who performed the above work,
wages, hours, and working conditions which were less
than those negotiated by Local 388 with the Lansing
Mechanical Contrators Association . From late October
1980 through June 11, 1981 , and from June 19 or shortly
thereafter to date of total cessation of picketing occur-
ring, as I have found, in late June or early July, Local
388 engaged in continuous picketing of Quality Plumbing
with picket signs which definitively stated that its labor
dispute was with Quality Plumbing and that the nature
29 There is no evidence that a district court injunction was ever ob-
tained on either Daily Heating, or earlier Hoffman charges , though the
earlier Hoffman charges were adjusted by informal settlement agreement
with appropriate posting of notice.
of its dispute was specifically over the latter's payment
of wages, hours, and working conditions which were
substandard to those negotiated by Local 388. There is
no question that there has been a longstanding and con-
tinuous dispute thereover existing between Local 388 and
Quality Plumbing during the entire period of Local 388's
picketing of Quality Plumbing.
The "area standards" picketing by Local 388 conduct-
ed against Quality Plumbing was well within legitimate
primary union activity of seeking, by the picketing publi-
cation of its labor dispute, to cause the offending em-
ployer, Quality Plumbing, to adopt employment terms
more compatible with those which Local 388 had previ-
ously established for such work, for the employees it
represented in Lansing . Local 388's "area standards"
picketing of Quality Plumbing at the Pitney-Bowes job-
site, a common situs, and considered alone , would be no
less lawful, despite any incidental effect the conduct of
primary picketing might have on any neutral or second-
ary employers (here the general contractor, Hoffman,
and all its other subcontractors, etc.) who might also be
working at that jobsite. Local 388's picketing of Quality
Plumbing would remain viewed as lawful so long as its
picketing was not also shown by all the circumstances to
have been conducted with an unlawful secondary objec-
tive as well. As to the latter, the Board's common situs
evidentiary principles are useful to identify presence of,
but are not mechanistically to be applied to reveal such
purpose, Sailors Union (More Dry Dock), 92 NLRB 547
(1950); New Orleans Building Trades Council (Markwell
& Hartz), 155 NLRB 319 (1965), enfd. 387 F.2d 79 (5th
Cir. 1967), cert. denied 391 U.S. 914 (1968); Operating
Engineers Local 450 (Linbeck Construction), 219 NLRB
997 (1975), affd. 550 F.2d 311 (1977); and see Electrical
Workers IBEW Local 761 v. NLRB, 366 U.S. 667, 672-
674 (1965). The question for ultimate discernment thus is
whether with fair allowance for the statutorily preserved
dual-purpose primary strike or primary picketing, a pres-
ence of a union's intended object to embroil neutrals is
no less reasonably revealed from all the attendant cir-
cumstances . However, as noted earlier, not raised as an
issue before me for unfair labor practice determination
herein is the question of whether Local 388's picketing
of Quality Plumbing prior to May 22 (the same being
date of an informal settlement agreement of certain
8(bx4)(B) charges earlier brought thereon by Hoffman in
a prior Case 7-CC-1162) was with a proscribed second-
ary object in violation of Section 8(b)(4XB); nor is a
claim alleged or advanced before we that Local 388's
subsequent (post-May 22) picketing of Quality Plumbing
was ever continued with such a secondary objective. In-
sofar as picketing is concerned, only Local 388's picket-
ing of Daily Heating (in June) has been alleged to be
violative of Section 8(b)(4)(B).
Nonetheless, the General Counsel presented certain
presettlement evidence that in late October 1980 Local
388 had initially expressed a motivational concern to
Hoffman that there were nonunion plumbers on this job-
site as not only revealing its subsequent picketing of the
nonunion subcontractor, Quality Plumbing, was also
with an object to cause Hoffman to cease doing business
PLUMBERS LOCAL 388 (DAILY HEATING)
with Quality Plumbing , but contending therefrom (infer-
entially) that the same is also useful proof that one of
Local 388's motivations behind its present June picketing
of Daily Heating was with an object to presently cause
Daily Heating to cease doing business with Hoffman and
in turn to have Hoffman cease doing business with Qual-
ity Plumbing. Whatever might be the warranted conclu-
sion therefrom (in its own circumstances) that certain of
the subsequent picketing of Quality Plumbing (viz that
from October 1980 through May 22) had been with an
object of putting secondary pressure on the neutral gen-
eral contractor to cease doing business with its nonunion
subcontractor Quality Plumbing with whom the Union
had its primary dispute in this period and although such
evidence may serve as background evidence establishing
the motive or object of a Respondent in its postsettle-
ment activities, cf. Laborers Local 185 (Joseph's Landscap-
ing), 154 NLRB 1384 fn. 1 (1965); even when in nature
pre-10(b) period, Machinists (Bryan Mfg.) v. NLRB, 362
U.S. 411 (1960), I am not as readily persuaded that such
evidence has significant and certainly not controlling
probative force in the circumstances presented herein.
Though I have had clear reservation under the hold-
ing of the Bryan Mfg. case, supra, and readily do not as-
cribe to the Griffith-Veld pre-10(b) statement a status of
controlling proof independent of substantial evidence of
objective appearing within 10(b) period, I have some ad-
ditional difficulty, under all the circumstances present in
this case , in assessing whether there is any significant
degree of probative value to be attached to it in estab-
lishing that the picketing of Daily Heating conducted
some 7-8 months later against a different employer, was
with the same object, and otherwise given that the thus
urged evidence , by time passage, was not only well out-
side 10(b) period, but also has predated an intervening
settlement agreement which has resolved all issues there-
on presented at the time, and which settlement has re-
mained viable ; and finally, given the additional circum-
stance herein that lawful, primary "area standards" pick-
eting of Quality Plumbing continued thereafter (postset-
tlement) unabatedly through June 11, the same being see-
mily but further indicative there had been an acknowl-
edged, effective cessation of Quality Plumbing picketing
by Local 388 with any such illegal secondary boycott,
such as was previously charged.
If I have had any occasion of hesitation in the above
respect, it is solely in connection with consideration of
Ciucci's (additional) statement that on June 16 he had
told the business agent of the Capital Excavating drivers,
inter alia, that he was picketing because there was some
nonunion work going on in there . On the one hand Qual-
ity Plumbing was not on the job at the time, and Ciucci
was carrying a picket sign at the time which named
(only) Daily Heating whom the Union then clearly re-
garded as having breached employees ' established work-
ing conditions set forth in the Union 's contract and in
their eye to have caused Benner earlier to work under
nonunion conditions; and by that time the drivers had al-
ready expressed to Ciucci their unwillingness to cross a
lawful picket line, and had been told by Ciucci that
picket line was legal and formal . On the other hand, I
am also persuaded by the evidence presented herein
1273
(considered infra), that the Union at this time might also
reasonably view Quality Plumbing, though temporarily
absent that day, in view of its presence there the day
before, and its regular coming and going without notice
as having a continued , or anticipatable presence on the
jobsite, such that Ciucci's remark could as well be argu-
ably viewed as having been made as applicable to the
latter. However, the additional facts of record are that
the Capital Excavating drivers' business agent first re-
plied that he would contact Griffith and then asked the
drivers to take the trucks back; and he did so without
any demonstrable awareness on his part at the time of an
earlier dispute Local 388 had with Quality Plumbing.
Even more significantly bearing on Loal 388's objective,
it appears on the weight of the evidence that on the very
next day, without any employer urging in the interim,
whether contact, or so far as this record warrants con-
clusion, on its own, Local 388 removed it picketing of
Daily Heating to former location of picketing on Enter-
prise Street, which, in either event, resulted in Capital
Excavating employees, on early arrival, performing their
work without any additional interruption, thus a seeming
antithesis of Local 388 having an object in its picketing
at the time to unlawfully embroil Capital Excavating or
the latters' employees in Local 388's contended dispute
with Daily Heating. Additionally, other circumstances
are noted that all other union (excepting Daily Heating)
employees had previously, and continued thereafter to
work the picketed jobsite despite Local 388 picketing. In
these circumstances, to utilize the October 1980 pre-10(b)
statement of Griffith to paramountly persuade of illegal
objective in Ciucci's statement and thus in Local 388
picketing of Daily Heating would be, in my view, not to
arguably use pre-10(b) evidence permissibly to explain an
independent unlawful act charged as occurring within
10(b), but in these particular circumstances to use it to
controllingly provide, thus constitute , a required element
of the unfair labor practice itself, namely, the statutorily
defined specific object of the charged unfair labor prac-
tice in 10(b) period, which I am thus unconvinced should
be done herein under the above authority in the above
circumstances.
To the extent the General Counsel would seek to rely
on additional presettlement evidence offered (even that
limitedly within 10(b) period) that Local 388 had con-
ducted its picketing of nonunion contractor Quality
Plumbing in presettlement period exclusively at (union)
gate 1, the same would seemingly fare probatively no
better. This would appear so given the noted continued
viability of the aforementioned informal settlement agree-
ment covering all such issue(s) similarly ; given the addi-
tional circumstances of the subsequent and ocntinued
presumably lawful "area standards" picketing of Quality
Plumbing at a new (arranged) entrance location, con-
ducted thereafter, in compliance with Moore Dry Dock,
supra, evidentiary principles. Finally, given the addition-
al evidenced restraint of Local 388 in conducting all its
postsettlement picketing of Quality Plumbing at the new
location, despite clear instance(s) of continued violation
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of gate I by Quality Plumbing.S° Under all the above
circumstances , all the postsettlement picketing of Quality
Plumbing as appears on this record is to be presumed
lawful . The case for the General Counsel 's contention
that Local 388's June picketing of Daily Heating was
with secondary object must then , in final analysis, stand
or fall essentially on the evidentiary conclusion to be
drawn from its own circumstances.
Local 388's picketing of union subcontractor Daily
Heating commenced June 11, appropriately at union gate
1 on Keystone Street ; its picketing was removed early
June 17 to a location on Enterprise Street, which since
postsettlement agreement Quality Plumbing had normally
used when on the jobsite ; and Local 388 ceased its pick-
eting of Daily Heating totally sometime in the week
prior to June 26, I fmd, probably by June 19 (Friday) or
shortly thereafter; though the same occurred contempo-
raneously with a resumption of picketing of Quality
Plumbing at that same (arranged) location . Respondent
essentially defends that it commenced its picketing of
Daily Heating on June 11 because Daily Heating
breached the contract it had with the Union by the dis-
patch of Benner on June 11, though conceding that if
Quality Plumbing were no longer on the jobsite there
would have been no contract breach by Daily Heating in
its dispatch of Benner that day to the Pitney -Bowes job-
site.
Quality Plumbing was not on the jobsite on June 11
(Thursday) though it had been on the jobsite the day
before, June 10. During the period June 11-19, from all
that appears clearly of record , Quality Plumbing was
again on the jobsite only on June 15 (Monday). In the
above regard, however, the record convincingly reveals
both that Quality Plumbing had long intermittently
worked this jobsite , and more pointedly had continued to
do so in more recent times material to Local 388's pick-
eting of Daily Heating . General Contractor Hoffman had
never notified the Union directly that Quality Plumbing
was to be (temporarily) off the jobsite and would not
return until a certain date ; nor did Hoffman ever advise
Local 388 directly that Quality Plumbing was perma-
nently off the jobsite . Indeed, and aside from any effect
emanating from Griffith's credited understanding at the
time that the Union was to receive some notice thereof,
while Veld has testified that Hoffman had at some indefi-
nite point in time, but identified as being in the period of
June 11 (Thursday) to June 17 (Wednesday), notified the
Board 's Regional Office staff that Quality Plumbing was
off the jobsite, with intent that the Union be in turn noti-
fied thereof, Veld also has admitted that Hoffman had
not again notified the Regional Office staff when Quality
Plumbing had thereafter returned to the jobsite . Even the
indirect notice and/or alert, such as arguably came to
the Union subsequently via Regional Office staff letter
dated June 19 (and aside from any resulting misleading
informational aspect), did not clearly assert either that
so There is accordingly no need to reach or evaluate Respondent's still
further urged position (itself notably involving presettlement evidence),
or cases advanced in support thereof, that gate 2 was otherwise too
loosely maintained, if not, as urged, of such initial unreasonable function
and design to have been ineffectively established . The time for resolving
such contentions was prior to a settlement of the earlier matter.
Quality Plumbing was off the job permanently or would
be off the job today certain. Nor did the Regional Office
staff letter vouch the reported facts. Under all these cir-
cumstances, and particularly the background of general
and recent intermittent work performances by Quality
Plumbing, insofar as Quality Plumbing's presence on this
jobsite is a factor for consideration, I conclude and find
that during all times material to Local 388's picketing of
Daily Heating, Local 388 was entitled to anticipate that
Quality Plumbing might return to this jobsite any day,
any time. a 1 It follows that insofar as Quality Plumbing's
presence on the job was a necessary element of Respond-
ent's contention regarding breach of contract by Daily
Heating, Quality Plumbing's temporary absence on June
11 (or thereafter) was not itself a defeating consideration.
It also would appear to readily follow that the General
Counsel's additional argument that the Pitney-Bowes
jobsite was "hot" because Quality Plumbing had previ-
ously or at one time worked there is rendered much less
persuasive.
One of the Moore Dry Dock, supra, evidentiary guide-
lines for a discernment of a secondary objective in
common situs picketing is whether the primary employer
is engaged in its normal business at the situs . Although
Ciucci recalled a return of a Daily Heating employee to
the jobsite he did so as very possibly after he had re-
turned the picketing to Enterprise Street; and the Gener-
al Counsel in any event established that Ciucci was
aware that there was no Daily Heating employee at the
jobsite on Friday, June 12, and from Monday, June 15
through (at least) June 17, Wednesday (early morning).
On the other hand, Local 388 had observed recent visits
of the Daily Heating sheet metal superintendent (or
other Daily Heating employee ) on May 20, 22, and 29
and June 8, and it earlier had observed a substantial de-
livery of sheet metal materials to the jobsite by Daily
Heating employees on May 26. From all the foregoing,
Local 388 might reasonably conclude, as it did, that
Daily Heating was going to perform the installation
work. Both Hamilton and Veld had testified that Daily
Heating performed no actual work on the job prior to
Benner's dispatch on June 11; and both have testified
that the installation contract was renegotiated to Thomas
Heating, but it is unclear concerning when this was
done. Testimony of pickup of fabricated parts by Hoff-
man and Thomas Heating for delivery to the jobsite was
alone by Hamilton and left indefinite. In that connection,
Hamilton 's testimony of his own very limited awareness
of Daily Heating 's visits to the jobsite asserted nonawar-
eness of delivery and belated testimony concerning
Diarly Heating's fabrication of parts in which he was
neither initially open or candid, occasion his testimony in
these areas (as in regard to his awareness of the griev-
ance) to be very unconvincing. Neither Hoffman nor
Daily Heating ever notified Local 388 of any of the
above, nor after picket line was established on June 11
did it notify Local 388 that Daily Heating was off the
job either permanently or temporarily . But in final analy-
31 Local 388, in such circumstances, would appear not to be required
to play "bide and seek" with Quality Plumbing its suppliers, etc. Cf. Lin-
beck Construction Corp. v. NLRB , 550 F.2d 311, 318-319 (5th Cir. 1977).
PLUMBERS LOCAL 388 (DAILY HEATING)
sis it is readily apparent that when Local 388 established
its picket line against Daily Heating , after repeated and
unsuccessful attempt at earlier contact to learn the cir-
cumstances, that Daily Heating employee Benner was on
the job doing work , which, with picket line establish-
ment, he left uncompleted , itself persuasively indicative
that Daily Heating was engaged in normal operations at
the situs, or would have been engaged there , but for the
picket line's effect. Cf. Electrical Workers IBEW Local 3
(New Power Wire), 144 NLRB 1089, 1094 (1963), enfd.
340 F .2d 71 (2d Cir . 1965). The same is seemingly fur-
ther supported with the observed return of Benner to the
jobsite to complete work he left uncompleted , only after
the picket line was removed.
Respondent 's central defensive contention about the
basis for its commencement of picketing of Daily Heat-
ing on June 11 was that Daily Heating 's dispatch of
Benner on June 11 to the Pitney-Bowes jobsite, at which
Quality Plumbing had been long picketed for its payment
of substandard wages paid for work it was there pre-
forming of a nature traditionally done by employees that
Local 388 represented , was in claimed direct breach of
the work-preservation (contractually so identified) clause
contained in their collective -bargaining agreement,
which provided that no employee covered by that agree-
ment:
... will be expected to work or be required to
work on any job or project on which a worker or
person is performing any work within the said juris-
diction of the contracting union if said worker or
person performing such work for wages and hours
or under any conditions of employment which are
less favorable to employees than those established
by this Agreement.
Whatever is to be ultimately concluded concerning the
legal sufficiency of the above contractual provision as
justification for Respondent 's prompt picketing of Daily
Heating on its claimed breach, the existence of the refer-
enced contractual provision, coupled with credited evi-
dence that Griffith had immediately, and prior to Local
388's establishment of the picketing of Daily Heating,
made effort by successive phone calls , and visit to Daily
Heating 's office, to first discuss the matter of an apparent
contract breach with Hulce , and failing that with other
Daily Heating authorities , as well as coupled with obser-
vation of Griffith's reasonably prompt grievance pursuit
of the claim of breach of contract , serves to convince me
wholly that the intervening picketing of Daily Heating at
the Pitney-Bowes jobsite was not a subterfuge as initially
claimed by the General Counsel. This remains my view
even with consideration of the deficiencies in the picket
sign used . Thus, despite the "area standards" sign's un-
based and erroneous reference to substandard wages and
hours paid, inasmuch as the sign was a standard sign
used and it did explicitly address substandard working
conitions which were protested, it seems to me, that the
sign used, being in substantial part supported , though not
as precisely stated as would appear desirable, that error
or overstatement contained therein does not itself con-
nect, or persuade to inference of presence of a secondary
1275
object. Although essentially contending that it has there-
by engaged in nothing but an 8 (b)(4XB) preserved pri-
mary strike, or primary picketing, Respondent does not
supply authority directly on point.
In contrast, the General Counsel's central remaining
contentions are essentially as advanced in its brief, viz,
that no contractual clause or union bylaw can legalize
Respondent's secondary objective of forcing a boycott of
the Pitney-Bowes jobsite ; though also noted as being
without specific authority cited relative to the contract's
work-preservation clause raised, other than such as may
be derived from cited Board holding in Glass Workers
Local 1612 (Alameda Glass), 242 NLRB 1011 (1979) (Ala-
meda Glass case); and Mississippi Building Trades Council
(Roy C. Anderson), 222 NLRB 649, 650 (1976) (Anderson
case). The same were cases cited by the General Counsel
in support of complaint allegations that the bringing of
charges, and finding of Benner guilty (with fine im-
posed), the latter being unalleged , but a matter deemed
fully litigated, were violative of Section 8(bXIXA) and
Section 8(bX4)(i) and (ii)(B) whether or not the picket
line was lawful.32 In regard to the subject of the charges
brought against Brenner and the fine imposed by Local
388 on finding made of Benner 's guilt of working behind
Local 388's picket line in violation of union member as
charged, Respondent would rely in defense essentially on
NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 811 (1967),
and Scofield v. NLRB, 394 U. S. 423 (1969), for support-
ing the principle that a labor organization has a right to
manage its own internal affairs, and that the bringing of
charges on the above oath violation was strictly an inter-
nal disciplinary matter ; and it would also rely on Oak-
land Machinists (Morton Salt), 190 NLRB 208 (1971) (and
other cited cases), in support of the additional contention
that the reasonableness of the amount of a fine imposed
by a union is a factor that is immaterial to an 8(b)(1XA)
consideration, regarding which position there appears to
have been no issue joined by the General Counsel herein.
The Supreme Court has upheld the Board view taken
that a contractual sentence which provided that no mem-
bers of the Union "will handle ... any doors ...
which have been fitted prior to being furnished on the
job" was an agreement with a permissible primary object
of "preservation of work traditionally performed by job-
site carpenters ." National Woodwork Mfrs. Assn. V.
NLRB, 386 U.S. 612, 614-615, 646 (1967). The basic
question there involved was determined to be whether
under all the circumstances the union 's objective was
preservation of work for the employees of the struck em-
ployer, or "whether the agreement and boycott were
tactically calculated to satisfy union objectives else-
where." The "touchstone" was stated to be "whether the
32 However to the extent contention is advanced that there was also a
threat to bring charges that is similarly violative of these sections, such
was not only not alleged, it remains insufficiently identified whether as
resting on intended base of the Griffith-Kntzinger remark (as found) that
someone better become reflective and pull the man off the job , or he is
going to be fined $1000 , which in context is a remark seemingly more
aimed at relay for management consumption ; or Griffith's terse confirma-
tion to Benner that Benner would be hearing from him which followed
the initial inquiry thereon by Benner, or a combination. In such -definite
complaint and contention circumstances, I shall make no finding thereon.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement or its maintenance is addressed to the labor
relations of the contracting employer vis-a-vis his own
employees." Id. 644-645. The court went on to affirm
the Board 's holding that maintenance of the above provi-
sion was not a secondary boycott in violation of Section
8(b)(4)(B), nor did it view the making of the agreement
to have been violative of Section 8(e). Id . at 646.35
The clause under present review , although contrac-
tually identified also as a work-preservation clause, is
clearly different in its subject addressment than that
which was considered in National Woodwork, supra, and
of course the parties' description of the clause as a work-
preservation clause may not operate to alter its real
nature. The clause in question explicitly relates that cov-
ered employees will not be expected to work, or be re-
quired to work, on a jobsite where another worker or
person performed work within the Union 's work juris-
diction for wages, hours, or under any conditions of em-
ployment less favorable to those employees than are es-
tablished for covered employees by the agreement. The
clause thus does not appear to describe an intended
direct preservation on any specific jobsite work tasks tra-
ditionally performed by covered employees for covered
employees, but has its ostensible direct thrust at ensuring
certain working conditions for covered employees, e.g.,
for Daily Heating employees , at all their potential work
locations . I conclude and find that the clause in question
in its essence does not constitute a work -preservation
clause preserving work traditionally performed by jobsite
plumbers, etc.34 Rather the clause ostensibly presents ap-
pearance of being more in the nature of being a "stand-
ards," or more precisely a working-condition preserva-
tion clause . However the working conditions of the cov-
ered employees sought contractually to be thus ensured
also carry an indirect thrust at the employment "stand-
ards" of other workers on the jobsite, viz, that the other
workers receive the "area standards " before covered em-
ployees are to be expected or required to work there.
The receipt of such "area standards" by other workers
on the jobsite was not a matter within the control of
Daily Heating. Dispatch or nondispatch of its employees
to the jobsite is a matter within the control of Daily
Heating . However, an inability to dispatch to a jobsite at
which other workers did not receive "area standards"
meant either a signatory contractor could not bid such a
job, or if it had bid the job, it could not subsequently dis-
patch covered employees to perform work on the jobsite
without a breach of its contract with the Union. Thus in
either instance on entering the collective-bargaining
so In National Woodwork, supra, the Supreme Court stated in regard to
See. 8(e), but pertinently in regard to the reach of Sec. 8(bX4)(B), that
(386 U .S. at 635):
Although the language of § 8(e) is sweeping, it closely tracks that
of § 8(bX4XA), and just as the latter and its successor § 8(bX4XB)
did not reach employees ' activity to pressure their employer to pre-
serve for themselves work traditionally done by them, § 8(e) does
not prohibit agreements made and maintained for that purpose.
a: See NLRB v. Longshoremen ILA, 447 U.S. 490 (1980), cert. denied
448 U.S. 906 (1980). There it is observed that the test of a lawful work-
preservation clause are twofold: first a preservation of traditional work
and second power in the contracting employer to give the work , but the
focus, it appears, is to be made on the traditional work of bargaining unit
employees , and an evaluation then made of the nature , or the relationship
thereto, of the contractual effort made to perserve it.
agreement, for signatory contractor it was either boycott
such a job, or breach its contract.
The Supreme Court in National Woodwork, supra, has
made reference to a boycott by employees with an "ob-
jective relating to pressuring their employers in the
matter of their wages, hours, and working conditions"
and it has referenced in disjunctive manner : "work pres-
ervation or other primary objective related to the union
employees' relations with their contractor employers."
However, it did so in context of discussion of negative
implications of the antitrust reach of Allen-Bradley;85 and
perhaps more pointedly, as bearing on the matters to be
addressed herein, took seeming early caution to illumi-
nate the restricted scope of its present decision in stating
(National Woodwork, supra at 630-631):
It is arguable that Congress may have viewed the
use of the boycott as a sword as different from
labor's traditional concerns with wages, hours, and
working conditions . But the boycott in the present
case was not used as a sword ; it was a shield carried
solely to preserve the members' jobs. We therefore
have no occasion today to decide the questions
which might arise where the workers carry on a
boycott to reach out to monopolize jobs or acquire
new job tasks when their own jobs are not threat-
ened by the boycotted product.
The instant question might then appear in that percep-
tion to be appropriately posed: was the contractual
clause here arrived at, with an object to permissibly
shield Daily Heating 's employees in their established
working conditions and thus a primary object, or was
the provided jobsite (boycott) action impermissibly a
sword tactically calculated to reach out to monopolize
jobs, or acquire new job tasks, and thus to be viewed as
secondary in its object. My own research also has found
no case directly in point.36 There is additional Board
precedential holding and/or dictum, however, which ap-
pears to point the way of resolution to the question
posed. Thus the Alameda Glass case not only presents
Board holding that a union's discipline of its members,
for working on a jobsite for a neutral employer under
15 Allen Bradley Co. v. Local 3, 325 U.S. 797 (1945); and see and com-
pare the more recent case of Connell Construction Co. r. Plumbers Local
100, 421 U.S. 616 (1975), for treatment in similar antitrust law case cir-
cumstances , of protection of umonmen from being required to work
alongside nonunion men, inapplicable as a consideration there, in terms of
the circumstances shown therein, and which , in the light of the contrac-
tual provisions to be found herein, would also appear to find no applica-
tion herein.
so See Electrical Workers IBEW Local 3 (L M. Ericsson Telecommuni-
cations), 257 NLRB 1358 (1981), for case circumstance of union 8(bX4Xi)
and (it)(B) violation in context of the union's conduct in pursuit of a
policy that its subcontractor bid only for "total job" with supporting
bylaw and contractual provisions that prohibited union members from
giving away, or allowing other tradesmen to do work coming within its
jurisdiction , though (distinguishably) the union subcontractor had not (as
here) entered contractual obligation, to bid a "total job." But see also
Electrical Workers IBEW Local 153 (Belleville Electric), 221 NLRB 345,
353 (1975), a case involving a contractual agreement by an employer to a
union's reservation of its (bylaws) right to discipline its members for vio-
lation of union rules (e.g., for crossing such a picket line) which did not
operate there to excuse the resulting unlawful secondary pressures, in-
cluding those from subsequent internal charge and fine discipline.
PLUMBERS LOCAL 388 (DAILY HEATING)
circumstances (as in case therein cited) in which its own
union lawfully pickets another (primary) employer at the
jobsite, is violative of Section 8(b)(IXA), but that the
same union disciplinary action frustrates the policy of the
Act's secondary boycott provisions. Thus the Board
there observed (242 NLRB at 1012):
Recently, in J. A. Stewart Construction Co.,4 we
were confronted with nearly an identical factual sit-
uation to that presented here . In Stewart, respondent
unions, a district council , and a local disciplined
three of their members because they worked for
neutral employers at a common situs while respond-
ent local was engaged in a primary dispute with an-
other employer. There, as here, there was no find-
ing that the picket line directed against the primary
employer was unlawful . We held that union disci-
pline in such circumstances violates Section
8(b)(1XA), and is not sheltered by the proviso to
that section, because it "not only frustrates the
policy reflected in the secondary boycott provisions
of the Act, which forbid labor organizations from
enmeshing neutral employers in primary labor dis-
putes, but, if alleged, would also require a finding of
unlawful secondary boycott activity. 5
242 NLRB 585 (1979).
s Id.
I am thus in the end persuaded and convinced by the
above holding of the Board in regard to a union 's disci-
pline of its members for work performed behind their
union's lawful picket line and by the evaluative expres-
sion of resulting boycott effect to be deemed secondary,
that just as a union bylaw itself (Alameda Glass), or as
may be incorporated in a contract-preserved right (Belle-
ville Electric case supra at 353) can not serve to justify or
excuse the secondary boycott effect determined thus to
result, so too a private (voluntary) contractual agreement
can not serve to justify or eliminate the same (deter-
mined) resulting secondary boycott effect. That being
the case , Local 388's picketing pressures of Daily Heat-
ing, for its breach of contract (failure to boycott the
Pitney-Bowes jobsite) had to have the effect of inducing
or encouraging individuals employed by Daily Heating
(and others), and of coercing and restraining Daily Heat-
ing (and other persons) to cease doing business with
Hoffman, and did cause Daily Heating to cease doing
business with Hoffman to the extent of work to be per-
formed on the Pitney-Bowes jobsite , for so long as Hoff-
man might allow Quality Plumbing , with whom Local
388 had its basic longstanding primary dispute, to contin-
ue its normal work operations on this jobsite, itself being
with natural and apparent effect of a further object to
cause Hoffman to cease doing business with Quality
Plumbing . Accordingly, it is concluded and found that
Local 388's picketing of Daily Heating commencing on
June 11 , and as continued thereafter , which was conced-
edly with object of self-help for breach of the above
agreement , was itself with object of embroiling Daily
Heating in a dispute , in law , not its own, and with object
to cause Daily Heating to cease doing business with
Hoffman , and with a natural and apparent further object
1277
to cause Hoffman to cease doing business with Quality
Plumbing all in violation of Section 8(b)(4)(i) and (ii)(B)
of the Act.
I further find that the subsequent charges brought by
Local 388 against Benner for having worked behind
Local 388's picket line on Quality Plumbing , and Local
388's resulting fine of Benner on finding Benner guilty of
having done so in violation of member oath, was itself in
violation of Section 8(bXIXA) and Section 8(b)(4)(i) and
(ii)(B) of the Act. 37 I am not similarly persuaded that ad-
ditional violations may rest on the "no strike" clause
herein, which though valid , was not unambiguous,
and/or inasmuch as the same contract made explicit pro-
vision that a covered employee's refusal to cross a lawful
picket line would not constitute a violation of the agree-
ment. The Anderson case, relied on by the General Coun-
sel, would thus appear inapposite . I shall accordingly
recommend that the related complaint allegations be dis-
missed. However, it is observed , additionally, that in the
light of Board holding in the Alameda Glass case, supra,
the circumstance that a sympathy strike was not preclud-
ed was immaterial , as the issue there, as here, was the
"validity of Respondent's discipline of members for re-
fusing to take part in activity not countenanced by the
statute." Accordingly , the same consideration can not
prevail as a defense for Respondent.
With regard to the remaining alleged 8(b)(4Xi)(B) oral
inducements , it may first appropriately be observed as
the Supreme Court noted in Electrical Workers IBEW
Local 501 v. NLRB, 341 U.S. 694, 701 (1951), that "the
words `induce or encourage' are broad enough to include
in them every form of influence and persuasion ." I thus
have little hesitation in reaching a conclusion that Grif-
fith effectively additionally induced or encouraged
Benner not to work on the Pitney-Bowes jobsite on June
11. This is readily apparent from the obvious displeasure
Griffith verbally exhibited toward Benner in their con-
frontations as Benner left the jobsite to obtain additional
tools ; by an essential reminder imparted to Benner that
he was working illegally behind Local 388's picket line;
and as well by Griffith's confirmation to Benner that
Benner would be hearing further from him on it. Cf.
Electrical Workers IBEW Local 3 (Eastern States), 205
NLRB 270 (1973). I am also sufficiently convinced by
the circumstances of Griffith's indicated disbelief and
self-confessed hurt at the time over the fact that Benner
had worked the jobsite that I credit Benner and find that
Griffith probably did on this occasion tell Benner essen-
tially that he had been good to Benner , but that was now
over. Such remarks not only constituted additional evi-
dence of inducement and encouragement of Benner to
cease working on the jobsite , they were also, in my
view, clearly coercive in nature. Accordingly, I con-
clude and find that by admonishing Benner on this occa-
sion that he had been good to Benner, but that was now
over, that Griffith essentially coercively told Benner that
87 In view of the concluded presence of an excepting invasion , or frus-
tration of an overriding policy of the labor laws, Board restraint of inter-
nal union action occasioning that effect is appropriate under Scofield v.
NLRB, 394 U.S. 423 (1%9); and it follows as well that other cases ad-
vanced by Respondent are thereby rendered inapposite
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 388's future representative of Benner would be less
favorable because Benner had worked behind Local
388's picket line, and that thereby Respondent has co-
erced employees in violation of Section 8(bXl)(A) of the
Act as independently alleged in the complaint . I am not
however similarly so persuaded by the weight of credi-
ble evidence to further credit Benner's account that Grif-
fith explicitly threatened Benner that if Daily Heating's
doors ever closed that Benner would not work any place
else in Lansing.
My reasons for not being persuaded to credit Benner
on this matter are as follows : First, Benner's assertion
that there was a (concurrent) reference made by Griffith
at the time to a $9000 cost to the Union in attorney's fees
and picketing associated with the jobsite was not initially
recalled by Benner , and on that account is rendered less
convincing ; and but the more so in the face of Griffith's
denial, and Ciucci's corroboration that it was not only
not said , but conflicts with the credible, indeed uncontro-
verted, additional testimony given by Ciucci that he had
not been paid anything by the Union during his long
period of picketing . Second, the likelihood of such a
threat being made by Griffith to Benner is rendered less
plausible, in my view, being wholly inconsistent with the
clear and public contract provisions of a nondiscrimina-
tory referral system (of which Benner was admittedly
aware, and in which he would qualify high in light of his
years of employment), as well as being inconsistent with
provisions of the Union's constitution and bylaws them-
selves . Third, Benner's version of such an explicit threat
was, in my view , fundamentally incongruous with the
clear tenor of his own affirmations otherwise that Grif-
fith had not told him to leave the jobsite, itself essentially
confirmatory of Griffith's testimonial assertion , and reas-
sertion that Benner at the time having already worked
the job, Griffith was not about to tell Benner at that
point what to do about continuing to work that jobsite.
In ultimate analysis though, I simply have great difficul-
ty in accepting Griffith would on the one hand speak
with conceded guarded responses to Benner about Ben-
ner's continued working on the jobsite for Daily Heat-
ing, while contemporaneously engaging in such a fla-
grant threat to Benner that because he had worked on
the job, if his employer Daily Heating ever closed its
doors, Benner would not work in Lansing again. At best,
this may have been what Benner interpolated in part
from his own anxiety over his perceived lack of control
of the Union's referral system and in the background of
the above coercive warning that Griffith was not going
to be as good to him as he had in the past . I am simply
not persuaded by the totality of all credible evidence that
Griffith made such remark ; and particularly so in the
face of Griffith's categorical denial that he did so, and
given Ciucci's credible and firm corroboration that no
such statement was ever made . Accordingly, I shall rec-
ommend that the 8(bX1XA) and 8(b)(4Xi) complaint alle-
gations based thereon be dismissed in their entirety. As
neither evidence offered nor found will support a conclu-
sion that Griffith on June 11 actually threatened Daily
Heating with a work stoppage if Daily Heating did not
pull its employees off the job, I shall accordingly recom-
mend that that complaint allegation also be dismissed.
Finally, if I have herein misconstrued the reach of the
Alameda Glass case, supra, which does not appear to
present contractual obligation element squarely, or if I
have overevaluated the restrictive teaching of the Na-
tional Woodwork case , supra, viz-a-viz "other primary ac-
tivity," and resultingly unduly restricted Respondent's
generally raised "dual" preserved primary union activity
right; and/or a finer line is simply still to be drawn
thereunder on legitimate union effort at contractual pres-
ervation of covered employees' working conditions on
jobsites to which they are assigned as only inferentially
may have been presented herein ,3 8 the error is one easily
enough addressed and corrected by the Board with the
issue thus squarely presented.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent Local 388 set forth in
section II , above, occurring in connection with the oper-
ations described in section I, above , have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent, Local 388, United Association of
Journeymen and Apprentices of Plumbing and Pipefit-
ting Industry of the United States and Canada, AFL-
CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2. Daily Heating and Air Conditioning , Inc. is an em-
ployer and a person engaged in commerce within the
meaning of Section 2(6) and (7) and Section 8(bX4)(B) of
the Act.
3. By inducing and encouraging employees of Daily
Heating and Air Conditioning , Inc., by picketing, threat-
ening, and other oral inducements , and by inducing and
encouraging employees of Capital Excavating and other
persons by the aforesaid picketing , to engage in a strike
or refusal in the course of their employment to perform
services; and by restraining and coercing Daily Heating
and Air Conditioning , Inc., by picketing , any by restrain-
ing and coercing, by such picketing, Hoffman Construc-
tion Company, Capital Excavating, and others persons,
with an object of forcing or requiring Daily Heating and
Air Conditioning Inc., Capital Excavating , and other
persons to cease doing business with Hoffman , and/or
with each other, and with a further natural and apparent
object of forcing or requiring Hoffman to cease doing
business with Quality Plumbing, Respondent Local 388
has violated Section 8(bX4)(i) and (ii)(B) of the Act.
4. By Local 388's business manager, Douglas W. Grif-
fith, telling Thomas Benner that Respondent Local 388's
88 No specific evidence was offered of the contractual clause origin, or
policy base, e.g., whether in covered employee protest over being re-
quired to work in a workplace where other persons who do not enjoy
their prosperity perform work which covered employees traditionally or
normally would do. There was direct evidence offered arguably only of
the last. See and compare Electrical Workers IBEW Local 3 (Ericsson
Telecommunications), 256 NLRB 1358 (1981)
PLUMBERS LOCAL 388 (DAILY HEATING)
future representation of Benner would be less favorable
because Benner had worked on the Pitney -Bowes jobsite
behind Local 388's established picket line directed
against Quality Plumbing , Respondent Local 388 has re-
strained and coerced employees in violation of Section
8(bXl)(A) and engaged in conduct violative of Section
8(b)(4Xi) of the Act.
5. By preferring charges and then imposing union dis-
cipline on Thomas Benner as described herein , Respond-
ent Local 388 has restrained and coerced employees and
otherwise engaged in conduct in violation of Section
8(bx1XA) and Section 8(b)(4)(i) and (ii)(B) of the Act.
6. Respondent has not committed any other unfair
labor practices as alleged in the complaint except as have
been found herein.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall order that it cease and
desist therefrom and that it take certain affirmative
action to effectuate the polices of the Act. I shall, among
other things, order that Respondent rescind the discipli-
nary action taken against Thomas Benner; remove the
same from its records; notify the United Association of
Journeymen and Apprentices of Plumbing and Pipefit-
ting Industry of the United States and Canada, AFL-
CIO of its action; and refund to Benner any moneys that
may have been held because of fines assessed, with inter-
est, in the manner prescribed in Florida Steel Corp.39 I
shall also order that Respondent Local 388 not seek to
enforce its article II, section 12 work-preservation clause
by similar unlawful picketing as found.
The General Counsel has essentially additionally
sought an imposition of a broad "cease using " and "cease
doing business" remedial order that would prohibit the
Union from engaging in any secondary boycott conduct.
In support of such contention the General Counsel
would rely on the certain documents earlier referenced
in footnote 3, supra, as in her view evidencing a recivi-
dism or proclivity on the part of Local 388 (insofar as
remaining pertinent) to violate Section 8(b)(4). The Gen-
eral Counsel would essentially rely on Board authority
of Teamsters Local 252 (Newark Service), 232 NLRB 1
(1977). Respondent contracontends that a traditional re-
medial order addressed to the violations found is alone
appropriate, and would rely on Communciation Workers
of America v. NLRB, 362 U.S. 479 (1960), which would
appear to include practices found "persuasively to be re-
lated to the proven unlawful conduct." Prior Board deci-
sions against a Respondent at bar based on similar unlaw-
ful conduct in the past may demonstrate proclivity.
Teamsters Local 70, 191 NLRB 11 (1971), and see cases
cited in fn. 2.
In support the General Counsel has offered Respond-
ent Local 388's prior record for review. The same thus
evidenced at 1975 consent judgment of the Sixth Circuit,
filed May 13, 1975 , enforcing a Board decision and
Order dated March 21, 1975, in a consolidated proceed-
ing involving six labor organizations, but based on an in-
39 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962).
1279
dividual stipulation of Local 388, and in pertinent part,
providing for a particularized 8(b)(4)(i ) and (ii)(B) cease-
and-desist order, unlimited regarding secondaries where
object was "to cease using, etc." or "cease doing busi-
ness" with a certain general contractor , or any other
person when doing business with the latter . There is also
referenced Board holding and remedy in Plumbers Local
388 (Featherly Construction), 252 NLRB 452 (1980), in
which remedy provided for certain 1979 conduct was an
8(b)(4)(i) and (ii)(B) cease-and -desist order, unlimited re-
garding secondaries , where object is "to cease doing
business" with a primary at two particularized jobsites.
(Reliance on a further advanced matter pending before
an administrative law judge's decision , or pending Board
view thereof is deemed premature.)
The remaining documents as earlier noted are essen-
tially three informal settlement agreements , two ap-
proved in 1980, and one in 1981. The first 1980 informal
settlement agreement was approved September 24, 1980,
in Cases 7-CC-1118 and 7-CD-385, involving an
8(b)(4)(B) and (D) charge resolution . This agreement
contained a nonadmission clause ; but also the following
language:
Notwithstanding the above, General Counsel of the
Board may, in any subsequent proceeding where it
is alleged that the Charging Party has violated Sec-
tions 8(b)(4)(B) or (D) of the Act, use this settle-
ment agreement as evidence of a prior violation of
those section(s) to the same effect as a Board deci-
sion finding a violation of those section (s) would
have.
The settlement provided posting of notice that 8(b)(4Xi)
and (ii)(B) "cease doing business" object, with unlimited
secondaries , and limited primary ; and particularized (D)
conduct. The second informal settlement approved Octo-
ber 14, 1980, in Cases 7-CC-1135 and 7-CD-391 also in-
volved an 8(b)(4)(B) and (D) charge resolution . However
this agreement contained a nonadmission clause, and was
without any future "use " language . Its notice provided
an 8(b)(4)(ii)(B) remedy with object of "cease doing busi-
ness" with unlimited seocndaries reference, and limited
primary, and (D) particularized conduct. All the above
documents were received in evidence and/or official
notice taken thereof, with question of law, however, re-
served concerning the appropriate individual application
thereof to be made in any appropriate remedy consider-
ation.
The third and final informal settlement agreement so
advanced is that earlier referenced as approved on May
22 on 8(b)(4)(B) charges brought by Hoffman in regard
to Respondent's picketing of Quality Plumbing on the in-
stant jobsite . Respondent Local 388's strenuously has ob-
jected to its receipt at hearing on the basis that the same
had not been set aside and involving a different picketing
matter, but relative to the same jobsite, was highly preju-
dicial to the resolution of the instant complaint matters.
Receipt of same in evidence thereupon was taken under
advisement and having now more fully been considered,
in the light of the entire record made before me, it (G.C.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Exh. 21) is now also received.40 This informal settlement
agreement was approved May 22 in Case 7-CC-1162. It
contains no nonadmission clause . It also contains the fol-
lowing language:
The General Counsel of the Board may, in subse-
quent proceeding where it is alleged that the Charg-
ing Party has violated Section 8 (b)(4)(B) of the Act,
use this settlement agreement as evidence of a prior
violation of this Section to the same effect as a
Board Decision fording a violation of that Section
would have.
The notice in this agreement provided an 8(b)(4)(i) and
(iiXB) remedy , referencing unlimited secondaries with
"cease using, etc." or "cease doing business" object, as to
limited primary , Quality Plumbing.
On the strength of similar use made in Teamsters Local
252 (Newark Service), supra, the aforementioned 1975
consent judgment (which did not contain a nonadmission
clause) would appear to qualify for consideration of
bearing on remedial issue . However , here the attendant
circumstances thereof also evidence an intervening pas-
sage of approximately 4 to 5 years from its entry to the
next succeeding Board order event; and probative or
supportive significance thereof as bearing on urged dem-
onstration of recividism , or proclivity to violate the Act
in its particulars, is seemingly much reduced, if not actu-
ally contraindicated by such a lengthy time passage. A
union's thus effected hiatus in engagement of any illegal
activity for 4 to 5 years, in my view, is a significant in-
tervening period of indicated compliance with the sta-
tuory scheme. Accordingly, I conclude it can add little
significance in the assessment of an appropriate remedy
on the instant matter.
The 1980 Board Order (regarding the 1979 conduct),
providing 8(b)(4)(i) the (ii)(B) prior remedy is of course
available for such consideration . It is observed that the
same was limited in its remedial addressment to two par-
ticularized jobsites , neither jobsite (or primary therein)
relatedly involved herein. Thus the relation to the instant
matter is at best on only broad commonality of 8(bX4)(B)
consideration and it is observed that Board approval of
the 8(bX4Xi) and (iiXB) picketing findings therein was
noted to have been pro forma. Respondent objects to its
extended use herein as support for broad remedial order.
The remainder are three informal settlement agree-
ments. In Teamsters Local 70 (C & T Trucking), 191
NLRB 11 (1971), a case noted in the General Counsel's
cited authority, the Board declined to enter a broad sec-
ondary boycott order based , inter alia, on 13 previous
settlements . The Board there stated that it "has frequent-
ly held that settlement agreements and consent decrees
60 The General Counsel specifically stated at the hearing that no unfair
labor practice finding would be sought thereon and, as noted , none has
been found. The General Counsel has urged receipt of the latter solely
for its urged bearing on remedy . Having now more fully considered the
matter, and concluding that high prejudice is not reasonably shown to
result from its receipt for such limited purpose; and observing that the
same appears to be not distinguishable in nature (for such purpose) from
earlier settlement agreements received for such consideration as is to be
determined appropriate, G.C. Eah. 21 (and related R. Exh . 11) is re-
ceived for review.
arising therefrom , have no probative value in establishing
that violations of the Act have occurred and, hence, they
may not be relied on to establish a 'proclivity' to violate
the Act." Clearly the above informal settlement agree-
ment of October 14, 1980, regarding Section
8(b)(4)(ii)(B) and (D) is necessarily within such category,
and it is accordingly to be given no weight whatever
herein . Cf. Variety Artists (Harrah's Club), 195 NLRB
416 (1972).
It would also at first appear that the two remaining in-
formal settlement agreements of September 24, 1980
(with nonadmission clause), and May 22, 1981 (without),
also suffer the same infirmity of use , unless the above-re-
served "use" language employed by the parties in each is
to be deemed a sufficient basis to occasion a different
result.
It goes without saying that informal settlement proce-
dure, generally , is extremely useful in the admistrative
process of early voluntary adjustments of various current
issues between the parties , and thus the informal proce-
dure clearly serves the overall purpose of the Act; and it
is clear, as well , that parties who enter such agreements
in doing so are generally determined to be held to the
terms of their agreement . Thus, absent a showing of a
subsequent breach of an agreed settlement's terms (or en-
gagement in independent unfair labor practices) an (in-
formal) settlement will generally not be set aside, and the
underlying charged violations, or former complaint alle-
gations not allowed to be renewed and revisited for spe-
cific unfair labor practice findings by the Board. Cf.
Jackson Mfg. Co., 129 NLRB 460 (1960); and United
Dairy Co., 146 NLRB 187, 189 (1964). Notably even
when it is established that the latter grounds do exist for
setting aside the settlement agreement , the covered viola-
tions then must first be established by evidence and spe-
cific findings thereon made, before any future remedy is
to be effected. The reason heretofore expressed by the
Board for denying a use of prior settlement agreements
of a respondent in a remedial manner bearing on subse-
quently determined violations is to be found in Board
view expressed thereon that settlement agreements, and
consent decrees arising therefrom, have no probative value
in establishing that violations of the Act have occurred.
Here under instant review, however, are two informal
settlements in which the parties (which include the Re-
spondent Union) have entered a prior agreement that the
informal settlement terms thereof may be used as evidence
of a prior violation (by the Respondent) of this (covered) sec-
tion to the same effect as a Board decision finding a viola-
tion of that section would have. They have thus seemingly
provided by their party agreement (and whether constru-
able as involving Respondent admission , or waiver) an
addressment and avoidance of evidentiary deficiency
noted by the Board as the existing grounds for the
Board's denials of such settlements a later remedial appli-
cation, or use, heretofore. Whether efficacy is to be ac-
knowledged in such attempted substitution of party
agreement for heretofore required finding of a violation,
is of course a policy matter for the Board 's addressment
and resolution.
PLUMBERS LOCAL 388 (DAILY HEATING)
The General Counsel has asserted ;a brief: "While in-
formal, two of these settlements contain the clear lan-
guage that obviously contemplates that these settlement
agreements are to be used as we now seek to use them to
obtain a broad order in a subsequent case." The General
Counsel does not advance any prior existing Board
precedent that is in direct support of the position ad-
vanced herein, nor has my own research led me to any.
In my own view, although parties should generally be
held to their undertaking, including their admissions and
waivers (when not otherwise violative of statutory pur-
pose), an informal settlement agreement such as that of
September 24, 1980, which on its face contains both a
nonadmission clause reserving to the Respondent a posi-
tion that it has not violated the Act in specific section
covered, while at the same time purporting to provide
"use" language for a substitutive violation finding, con-
tains such latent ambiguities, if not inherent inconsisten-
cy, that it is not to be deemed serviceable probatively of
the end sought. The last informal settlement agreement
of May 22, which contains no nonadmission clause and
which does contain the above party agreed "use" lan-
guage, would alone appear squarely to present such an
issue.
Respondent, in contrast, essentially would rely on the
Supreme Court holding in Communication Workers of
America v. NLRB, supra, which teaches that the Board's
remedy is to be directed to unlawful practices found, or
such as are shown persuasively related to the proven un-
lawful conduct. In the Teamsters Local 252 (Newark Serv-
ice), case supra, on which the General Counsel relies, the
controlling circumstances appears to have been there
that in four recent 8(bX4)(B) cases, in a relatively short
timespan (apparently 1 year), it was discernible that the
Union had demonstrated proclivity "to engage in second-
ary boycott conduct directed against persons doing busi-
ness with rubbish removal contractors whom it deems
objectionable." Even there, though an order was entered
that was broad in nature, the order entered did not pro-
scribe all (thus extending to unfound and unrelated)
8(bX4)(B) activity in the future irrespective of object or
reasonably demonstrated intendments, but rather was ad-
dressed pointedly to all 8(bX4)(B) activity in the future
of a nature having an object regarding the "any other
rubbish removal contractor" concerning which group
the contended "proclivity" to unlawful boycott had thus
become discernible. On that perception, it becomes ap-
parent that the very broad proscripting order herein
sought by the General Counsel is not shown warranted
on that authority. Nor can I discern any significant such
"proclivity" herein from a consideration of the matters
earlier remedied by the Board in its pro forma adoption
of the 8(bx4)(i) and (iiXB) findings in the above Feather-
ly Construction case, involving Respondent. In compari-
son with the above informal settlement adjustment, I
would note that party compliance with a trial examiner's
decision, standing alone, is inadequate; and, in any event,
I am insufficiently persuaded that that which is effective-
ly presented herein is sufficient. Cf. Teamsters Local 70
(C & T Trucking), 191 NLRB 11 (1971). Moverover, in
the light of the findings of specific violation herein made,
and the traditional but tailored remedy herein to be pro-
1281
vided thereon, the same, in my view would have no oc-
casion to be enlarged even were I to extend a consider-
ation additionally as to the above informal settlement
agreement (of May 22) seemingly providing for such use,
as is urged by the General Counsel.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend.
ed4t
ORDER
The Respondent, Local 388, United Association of
Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-
CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Inducing or encouraging by picketing, threatening,
or any other means, employees employed by any other
persons engaged in commerce or in industries affecting
commerce, to engage in a strike or a refusal in the course
of their employment to perform services for their respec-
tive employers; and from coercing or restraining Daily
Heating and Air Conditioning, Inc., or any other em-
ployer, where an object thereof is to force or require
Daily Heating and Air Conditioning, or any other em-
ployer, to cease doing business with Hoffman Construc-
tion Company, and/or with each other, and with a fur-
ther natural and apparent object of forcing or requiring
Hoffman in turn to cease doing business with Quality
Plumbing, Inc.
(b) Telling employees that their future representation
by Local 388 will be less favorable because they work
behind a picket line of Local 388 directed against an em-
ployer other than their own employer.
(c) Seeking to enforce article II, section 12 (work pres-
ervation) of our collective-bargaining agreement by un-
lawful picketing, or in any manner that would constitute
a violation of Section 8(bX4)(i) and (ii)(B) of the Act.
(d) Charging, trying, fining, or otherwise disciplining
Thomas Benner, or any of its members, to induce or en-
courage them to withhold their services from their neu-
tral employer with an object or forcing or requiring their
neutral employer to cease doing business with a neutral
general contractor, and/or with further natural and ap-
parent object to force or require a neutral general con-
tractor to cease doing business with an employer with
whom they have a primary dispute.
(e) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the disciplinary action taken against
Thomas Benner for working behind a picket line of
Local 388 to induce or encourage employees to withhold
their services from their neutral employer with an object
of forcing or requiring their neutral employer to cease
41 If no exceptions are filed as provided by Sec . 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall , as provided in Sec 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doing business with a neutral general contractor and/or
with further natural and apparent object to force or re-
quire a neutral general contractor to cease doing business
with an employer with whom they have a primary dis-
pute; remove from its records any reference to that disci-
pline; and notify United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada , AFL-CIO of its actions in
that regard.
(b) Refund to Thomas Benner any moneys that may
have been held on account of fine assessed against him in
connection with the aforesaid disciplinary action, with
interest, as set forth in the remedy section of this deci-
sion.
(c) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."'s Copies of said
notice, on forms provided by the Regional Director for
Region 7 , after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately on receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in consipicuous
places, including all places where notices to members are
customarily posted . Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced , or covered by any other material.
(d) Sign and return to said Regional Director sufficient
copies of the attached notice marked "Appendix" for
posting by Daily Heating and Air Conditioning, Inc., if
willing, in conspicious places, including all places where
notices to employees are customarily posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
*' If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage , by picketing,
threatening , or any other means, employees employed by
Daily Heating and Air Conditioning , Inc., or by any
other employer, to engage in a strike, or a refusal in the
course of their employment to perform services for their
respective employers ; and WE WILL NOT coerce or re-
strain Daily Heating and Air Conditioning, Inc., or any
other employer, where an object thereof is to force or
require Daily Heating and Air Conditioning, Inc., or any
other employer to cease doing business with Hoffman
Construction Company and/or with natural and apparent
further object to force or require Hoffman Construction
Company to cease doing business with Quality Plumbing.
WE WILL NOT tell employees in a manner violative of
the Act that future representation by Local 388 will be
less favorable because they work behind a picket line of
Local 388 directed against an employer other than their
own employer; and WE WILL cease seeking to enforce
article II, section 12 of our collective-bargaining agree-
ment entitled work preservation by unlawful picketing,
or in any other manner that would constitute a violation
of Section 8(bX4Xi) and (ii)(B) of the Act.
WE WILL NOT charge, try, fine, or otherwise discipline
Thomas Benner, or any of our members, to induce or en-
courage them to withhold their services from a neutral
employer with an object of forcing or requiring the neu-
tral employer to cease doing business with a neutral gen-
eral contractor, and/or with further natural and apparent
object to force or require the general contractor to cease
doing business with an employer with whom we have a
primary dispute.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL rescind the disciplinary action taken by us
against Thomas Benner for working behind a picket line
of Local 388 to induce or encourage employees to with-
hold their services from a neutral employer with an
object of forcing or requiring the neutral employer to
cease doing business with a neutral general contractor
and/or with further natural and apparent object to force
or require the neutral general contractor to cease doing
business with an employer with whom we have a pri-
mary dispute; and WE WILL remove from our records
any reference to that discipline, and notify the Interna-
tional Union for our action in that regard.
WE WILL refund to Thomas Benner any moneys held
on account of fines assessed against him in connection
with the aforesaid disciplinary action, with interest.
LOCAL 388 , UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIFEITTING INDUSTRY OF
THE UNITED STATES AND CANADA, AFL-
CIO