Local 469, United Assn. of Journeymen, Etc.

National Labor Relations Board - Board Decisions

Jan 24, 1962

135 N.L.R.B. 492 (N.L.R.B. 1962)

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It having been found that the Respondent discriminated in regard to the 'hire and
tenure of employment of Norma DeRosia and Barbara Hall by discharging each
of them on February 16, 1961 , and thereafter not reinstating them , the Trial Ex-
aminer will recommend that the Respondent make each of them whole for any
loss of pay she may have suffered by reason of said discrimination against her by
payment to her of a sum of money equal to that which she would have earned as
wages from the date of the discrimination against her to the date of her reinstate-
ment less her net earnings during such period in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289.
It having further been found that on February 20, 1961, and at all times there-
after, Respondent has refused to bargain collectively with United Electrical, Radio
and Machine Workers of America as the exclusive bargaining representative of
Respondent 's employees in the above-found appropriate unit , it will 'be recommended
that the Respondent, upon request, bargain collectively with said Union as such
representative.
Because of the variety of the unfair labor practices engaged in by the Respondent,
the Trial Examiner senses an attitude of opposition to the purposes of the Act in
general , and hence the Trial Examiner deems it necessary to order that the Re-
spondent cease and desist from in any manner infringing upon the rights guaranteed
in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The United Electrical , Radio and Machine Workers of America is a labor
organization within the meaning of Section 2(5) of the Act.
2. By discharging Norma DeRosia and Barbara Hall on February 16, 1961,
thereby discriminating in regard to their hire and tenure of employment and dis-
couraging union activities among its employees , Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a)(3) and
(1) of the Act.
3. All production and maintenance employees of Respondent employed at its
Greenfield plant, exclusive of office clerical employees , guards, professional em-
ployees, and all supervisors as defined in the Act, constitute -a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act
4. At all times since February 20, 1961, United Electrical, Radio and Machine
Workers of America has been , and now is, the exclusive representative of all the
employees in the aforesaid appropriate unit for 'the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By failing and refusing on, and at all times since, February 20, 1961, to bar-
gain collectively with United Electrical, Radio and Machine Workers of America
as the exclusive representative of the employees in the aforesaid unit , the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 ( a) (5) and (1) of the Act.
6. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (.a)( I) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Local Union #469 of the United Association of Journeymen &
Apprentices of the Plumbing & Pipe Fitting Industry of the
United States & Canada, AFL-CIO [Hansberger Refrigera-
tion & Electric Co.] and Independent Contractors Association.
Case No. 28-CC-82 (formerly 21-CC-408). January 24, 1962
DECISION AND ORDER
On June 29, 1961, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in unfair labor practices and recommending
135 NLRB No. 51.
LOCAL 469, UNITED ASSN. OF JOURNEYMEN, ETC. 493
that it cease and desist therefrom and take certain affirmative action,
as set forth in the Intermediate Report attached hereto. Thereafter
the General Counsel and Respondent filed exceptions to the Inter-
mediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds no prejudicial error. The rulings are hereby af-
firmed. The Board has considered the Intermediate Report, the ex-
-ceptions, the briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent with ,the, following
modifications.
We agree with the Trial Examiner that the Respondent, violated
Section 8(b) (4) (i) and (ii) (B) by picketing at the construction site
of the Hicks-Ponder factory as set forth in the Intermediate Report.
In reaching this conclusion we note that the record in this case indi-
cates that Respondent made no • effort to organize the, Hansberger
employees, made no claim to represent them upon Hansberger, and
made no request to that company for either negotiations or a contract.
Respondent's so-called organizational activity was confined to jobsite
picketing at a time when no employees of Hansberger were engaged in
Hansberger's operations. at the site but when employees of. other em-
ployers were in attendance and during substantial periods of time
when Hansberger also was not present and no Hansberger work was
being performed. The record, moreover, is void of evidence that Re-
spondent made any effort to ascertain whether Hansberger or his
employees were engaging in Hansberger's normal operations when it
commenced and later continued its picketing. Under these circum-
stances, we can only infer that an object of the appeals was the induce-
ment of employees of other employers at the jobsite to cease work with
the further object of requiring other employers to cease doing business
with Hansberger. Quite clearly such conduct violates Section
8(b) (4) (i) and (ii) (B).1
The General Counsel also relied upon the fact that Hansberger had
its principal place of business at Yuma where Respondent could have
engaged in picketing without involving the employees of neutral em-
ployers in the dispute. Respondent answered that the situs of Hans-
berger's shop was such (located upon a private street about 100 yards
from the public street) that picketing the plant would have been
impractical. In view of our decision that Respondent's picketing at
the Hicks-Ponder factory violated the Act, we find it unnecessary to
reach this second contention of the General Counsel.
1 Sheet Metal Workers' International Association , Local Union No 3, AFL-CIO (Stebler
Heating & Air Conditioning , Inc ), 133 NLRB 650; International Brotherhood of Electri-
cal Workers, Local 861, AFL-CIO (Cleveland Construction Corp.), 134 NLRB 586;
Roberts & Associates , 119 NLRB 962.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We also agree with the General Counsel that the recommendations
of the Trial Examiner are not coextensive with the violations found,,
and we have amplified the Order and the notice accordingly.
ORDER
Upon the basis of the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as, amended, the,
National Labor Relations Board hereby orders that the Respondent,.
Local Union #469 of the United Association of Journeymen & Ap-
prentices of the Plumbing & Pipe Fitting Industry of the United
States, & Canada, AFL-CIO, its officers, agents, representatives, suc-
cessors, and assigns , shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging individuals employed
by W. J. Anderson Construction Co., Inc., or any other person engaged
in commerce or in an industry affecting commerce at the Hicks-Ponder
factory site to engage in, a strike or a refusal in the course of their
employment to perform services where an object thereof is to force
or require W.*J. Anderson Construction Co., Inc., or any other person
to cease doing business with Hicks-Ponder Manufacturing Co., in
order to force Hicks-Ponder Manufacturing Co. to cease doing busi-
ness with Hansberger Refrigeration & Electric Co.
(b) Threatening; coercing, or restraining W. J. Anderson Con-
struction Co., Inc., or any other person engaged in commerce or'in an
industry affecting commerce at the Hicks-Ponder factory site'where,
an object thereof is to force W. J. Anderson Construction Co., Inc.,
or any other person to cease doing business with Hicks-Ponder Manu-
facturing Co., in order to force Hicks-Ponder Manufacturing Co. to^
;cease doing business with Hansberger Refrigeration & Electric Co.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a), Post at its offices and meeting halls at Yuma, Arizona, copies of
the notice attached hereto narked "Appendix." 2 Copies of said no-
tice, to be furnished by the Regional Director for the Twenty-eighth
Region, shall, after being duly signed by a representative of the Re-
spondent Union, be posted immediately upon receipt thereof,, and be-
maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Respondent
Union to insure that such notices are not altered, defaced, or covered'
by other material. Upon request of said Regional Director, Respond-
ent Union shall supply him with a sufficient number of copies of said
notices for posting by Independent Contractors Association, Hans-
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
LOCAL 469 , UNITED ASSN . OF JOURNEYMEN , ETC. 495
berger Refrigeration & Electric Co ., W. J. Anderson Construction Co.,
Hictis -Ponder Manufacturing Co., Viking Sprinkling Company, or
any other person, if they desire to do so, at the site which was involved
in this proceeding.
(b) Notify the Regional Director for the Twenty-eighth Region,
in writing , within 10 days from the date of this Order , what steps have
been taken to comply herewith.
MEMBERS FANNING and BROWN took no part in the consideration of
the above Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS or LOCAL UNION #469 OF THE UNITED ASSOCI-
ATION OF JOURNEYMEN & APPRENTICES Or THE PLUMBING & PIPE
FITTING INDUSTRY OF THE UNITED STATES & CANADA, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby give notice that :
WE WILL NOT engage in or induce or encourage the employees of
W. J. Anderson Construction Co., Inc., or any other person to
engage in a strike or in a refusal in the course of their employ-
ment to perform any service for their respective employers, where
an object thereof is to force W. J. Anderson Construction Co., Inc.,
or any other person to cease doing business with Hicks-Ponder
Manufacturing Co., in order to force Hicks-Ponder Manufactur-
ing Co., or any other person to cease doing business with Hans-
berger Refrigeration & Electric Co.
WE WILL NOT threaten, coerce, or restrain W. J. Anderson Con-
struction Co., Inc., or any other person engaged in commerce or in
an industry affecting commerce, where an object thereof is to
force W. J. Anderson Construction Co., Inc., or any other person
to cease doing business with Hicks-Ponder Manufacturing Co. in
order to force Hicks-Ponder Manufacturing Co. to cease doing
business with Hansberger Refrigeration & Electric Co.
LOCAL UNION #469 OF THE UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING & PIPE FITTING INDUSTRY OF TILE
UNITED STATES & CANADA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, (1015 Tijeras Street NW., Albuquerque, New Mexico; Tele-
phone Number, 243-35 ;6) if they have any question concerning this,
notice or compliance with its provisions.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on February 27, 1961,1 by Independent Contractors
Association , herein called the Association , the General Counsel of the National Labor
Relations Board , herein respectively called the General Counsel z and the Board,
through the Regional Director for the Twenty-first Region,3 issued a complaint,
dated March 27, against Local Union #469 of the United Association of Journeymen
& Apprentices of the Plumbing & Pipe Fitting Industry of the United States & Canada,
AFL-CIO, herein called Respondent , alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning of
Section 8 ( b) (4) (i) and ( ii) (B) and Section 2(6) and (7) of the National Labor
Relations Act, as amended from time to time , 61 Stat . 136, herein called the Act.
Copies of the charge and complaint , together with notice of hearing thereon, were
duly served upon Respondent and copies of the complaint and notice of hearing were
duly served upon the Association.
On April 12, Respondent duly filed an answer denying the commission of the
unfair labor practices alleged.
Pursuant to due notice , a hearing was held on April 18 and 19 , at Yuma, Arizona,
before the duly designated Trial Examiner . The General Counsel and Respondent
were represented by counsel and the Association by a representative thereof. All
parties were afforded full and - complete opportunity to be heard , to examine and
cross-examine witnesses , to introduce evidence pertinent to the issues , to argue
orally at the conclusion of the taking of the evidence , and to file briefs on or before
May 24.4 A brief has been received from Respondent's counsel which has been
carefully considered.
Upon - the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE EMPLOYERS INVOLVED
Hicks-Ponder Manufacturirng Co., herein called Hicks, with plants at El Paso
and Del Rio, Texas , is engaged in the manufacture and distribution of shirts and
other articles of clothing. Hicks annually ships to points located outside the State
of Texas clothing valued at substantial amounts.
W. J. Anderson Construction Co., Inc ., herein called Anderson , is engaged at Yuma,
Arizona , as a general building contractor . During all times material herein,
Anderson was engaged in, pursuant to a contract with Hicks , the construction of a
shirt factory at Yuma, Arizona . Anderson annu'ally•receives supplies and materials
originating from outside the State ' of Arizona in substantial amounts. During the
12-month period immediately prior to the opening of the hearing herein , Anderson's
oat-of-State ,purchases of goods and materials amounted . to approximately $ 10,000.
During 1960; Anderson purchased materials and supplies from O'Malley-Smith
Lumber Co ., a Yuma, Arizona, lumber and material concern, amounting to $10,-
583.04 . Approximately 92 percent of said merchandise was shipped directly to
O'Malley-Smith from points located outside the State of Arizona.
At all. times material herein -Hansberger Refrigeration & Electric Co., a partner-
ship composed of Edwin L . and J. Kenneth Hansberger and herein called Hansberger,
a Yuma; Arizona , refrigeration electrical contractor , was engaged in the installation
of refrigeration equipment at the Hicks ' Yuma shirt plant . The cost of this work
to Hicks will amount to approximately $26,000 , including interest . Hansberger's
1960 direct out-of-State purchases amounted to $42 , 556.02. During the same period,
Hansberger purchased materials from Mohawk Wholesale & Equipment Co., a
Yuma, Arizona, plumbing and electrical supply company, valued at $16,172.26 of
which amount $14,172 was shipped directly to Mohawk from points located outside
the State of Arizona . During 1960 and the forepart of 1961 , Hansberger did instal-
lation work for the Federal Aviation Agency , a national defense agency , amounting
to approximately $20,500.
On the basis of the foregoing facts, the Trial Examiner finds, in line with estab-
lished Board authority , that the employers here involved are engaged in , and during
1 Unless otherwise noted, all dates herein mentioned refer to 1961.
3 This term specifically . includes counsel for the General Counsel appearing at the hearing.
3 This proceeding has been transferred to the newly created Twenty -eighth Region
4 At the request of Respondent ' s counsel , the time to ' file briefs was extended to June 5.
LOCAL 469, UNITED ASSN. OF JOURNEYMEN, ETC. 497
all times material were engaged in, business affecting commerce within the meaning
of the Act and that their combined operations meet the standard fixed by the Board
for the assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization admitting to membership employees of
Hansberger.
III. THE UNFAIR LABOR PRACTICES
A. The pertinent facts
About December 2 or 3, 1960, Anderson, pursuant to a written contract with
Hicks, commenced the erection of a $75,000 shirt factory in Yuma, Arizona, for
Hicks. Among the subcontractors were Viking Sprinkling Company, Philco Plumb-
ing, Butler Roofing and Installation Company, and E. T. Williams.
Hansberger had a 5-year lease and maintenance contract with Hicks for refrigera-
tion of the new shirt factory. This contract amounts to about $26,000, including
interest over the aforesaid 5-year period.
At about noon on February 20, 1961, while Hansberger was engaged in perform-
ing the Hicks' contract, Respondent placed a picket at the jobsite in question carrying
a sign to the effect that Respondent desired to organize and bargain with Hansberger
for Hansberger's employees.
Almost immediately after Anderson's superintendent saw the picket, he left the
job; his crew followed him. About the same time , the two employees of Viking
also left the job. There were no Hansberger employees on the job when the picket-
ing commenced.
On February 21 or 22, a truckdriver of Trigg arrived at the jobsite with a load
of concrete ready-mix for Hansberger. The driver refused to cross the picket line
and so informed Trigg by telephone. Trigg then went to the jobsite and drove the
truck onto the job and unloaded the concrete.
About 4 p.m. on February 23, the picket was removed. During picketing no
one worked on the Hicks' job except J. Kenneth Hansberger, a Hansberger partner,
who only did some occasional necessary work.
At no time did Respondent picket Hansberger' s premises , where its employees
come and go each day, and where the employees do much of their work. In fact, the
record is devoid of any evidence that Respondent made any effort to contact Hans-
berger's employees. In addition, the record discloses that the last time any Respond-
ent representative called upon Hansberger seeking recognition was about a year
prior to the opening of the hearing herein.
B. Concluding findings
In relevant part, Section 8(b) (4) (A) of the Act makes it an unfair labor practice
for a labor organization or its agents "to induce or encourage the employees of any
employer to engage in ... a concerted refusal in the course of their employ-
ment . . . to perform any services, where an object thereof is . . . forcing or
requiring . . . any employer . . . to cease doing business with any other person."
The facts detailed above show that Respondent's dispute was with Hansberger; that
Hansberger had a facility which Respondent could picket without implicating neutral
employers; but, that, nevertheless, Respondent picketed a construction site quite
some distance from Hansberger's premises, and as a result the employees of certain
neutral employers were induced to stop work.
Since Respondent had adequate opportunity to appeal to Hansberger's employees
by the ordinary methods traditionally resorted to by unions to organize workers,
it completely abstained from using those methods. It is thus fair to conclude, which
the Trial Examiner does, that Respondent's motive, at least in part, in picketing the
Hicks' jobsite, was to bring its dispute with Hansberger to the attention of the
employees working on the Hicks' job so as to obtain their aid. This is especially
true since all the employees of the neutral employers here involved refused to cross,
or work behind, Respondent's picket line.5
5 "As conducted here [the picketing] constituted an appeal for solidarity of a nature
implying both a promise of benefit and a threat of reprisal. The reluctance of workers to
cross a picket line is notorious. To them the presence of the line implies a promise that
If they respond by refusing to cross it, the workers making the appeal, will in turn co-
operate if need arises. The converse, likewise, is implicit." Printing Specialties and Paper
634449-62-vol. 135-33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case , the Trial Examiner finds that an object of
Respondent 's picketing was (1 ) to force or require the secondary employers to cease
doing business with Hansberger; (2) force or require the secondary employers to
cease doing business with Hicks in order to force Hicks to cease doing business with
Hansberger; and (3) force or require Hicks to cease doing business with Hansberger,
thereby violating Section 8 (b)-(4) (i) and (ti) (B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III , above, occurring in connec-
tion with the operations of the employers here involved, as set forth in section I,
above, have a close, intimate , and substantial relation to trade, traffic, and commerce
among the several States, and , such of them as have been found to constitute unfair
labor practices, tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has violated Section 8(b)(4)(i) and (ii)(B) of
the Act, it will be recommended that it be ordered to cease and desist therefrom and
that it take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Hicks, Anderson, Trigg, and Hansberger are, and during all times material
have been, employers engaged in commerce and in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is, and during all times material was, a labor organization within
the meaning of Section 2(5) of the Act.
3. By engaging in, and inducing and encouraging employees of other employers
to engage in a strike and other concerted refusals to handle goods or services of
Hansberger , or threatening, coercing , or restraining a person in an industry affecting
commerce , by picketing or otherwise, with an object of forcing him to cease doing
business with another , Respondent has engaged in unfair labor practices within
the meaning of Section 8(b) (4) (i) and (ii ) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act
[Recommendations omitted from publication.]
Converter8 Union, Local 388, AFL (Sealright Pacific, Ltd ) v. Le Baron, 171 F. 2d 331,
334 (CA 9 ) See also NLRB. v Denver Building and Construction Trades Council, et at
(Gould & Preisner ), 341 U.S. 675 ; Stover Steel Service v . NLRB, 219 F. 2d 879 (CA 4)
International Brotherhood of Electrical Workers, Local 861,
AFL-CIO [Ace Electric Company] and Wilmer J. Milam. Case
No. 15-CB-48?. January 24, 1962
DECISION AND ORDER
On November 8, 1960 , Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above -entitled proceeding , finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto . Thereafter , the Respondent filed exceptions
to the Intermediate Report.
135 NLRB No. 44.