Local 54, Sheet Metal Workers

National Labor Relations Board - Board Decisions

Feb 7, 1969

174 N.L.R.B. 362 (N.L.R.B. 1969)

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 54, Sheet Metal Workers
International Association , AFL-CIO and Sakowitz,
Inc.
Local Union No. 54, Sheet Metal Workers
International Association , AFL-CIO and J. R.
Hobbs Co . Cases 23-CC-245 and 23-CC-246
February 7, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
Upon charges duly filed by Sakowitz, Inc., and J.
R. Hobbs Co., the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 23, on November 2, 1967, issued a
complaint alleging that Local Union No. 54, Sheet
Metal Workers Association, AFL-CIO, had engaged
in and was engaging in unfair labor practices within
the meaning of Section 8(b)(4)(ii)(B) of the National
Labor Relations Act, as amended. Copies of the
charges, complaint, and notice of hearing before a
Trial Examiner were duly served upon the
Respondent Union. On November 13, 1967, the
Respondent filed its answer to the complaint.
On April 3, 1968, the Respondent, General
Counsel, and the Charging Parties entered into a
Stipulation of the' Record in which they stipulated to
certain facts. The parties waived their rights to a
hearing before a Trial Examiner and a Trial
Examiner's Decision, and agreed that the charges,
complaint and the stipulation shall constitute the
entire record in these cases. They further agreed to
submit the stipulated record directly to the Board
for findings of fact, conclusions of law, and a
Decision and Order. By an order dated April 11,
1968, the Board approved the stipulation and
transferred the case to itself. Thereafter, the General
Counsel filed a brief.
Pursuant to Section 3(b) of the Act, the Board
has delegated its powers in connection with these
cases to a three-member panel.
Upon the basis of the stipulation, and the entire
record in these cases, the Board makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Sakowitz, Inc., is a Texas corporation with its
principal office and place of business at Houston,
Texas, where it is engaged in the retail sale of
clothing and related items. During the past 12
months, a representative period, Sakowitz received
gross revenues in excess of $500,000 and, during the
same period, purchased goods directly from outside
the State of Texas valued in excess of $50,000 which
goods were shipped from points outside the State to
its places of business in the State of Texas.
Oshman's is a Texas corporation with its principal
office and place of business at Houston, Texas,
where it is engaged in the retail sale of sporting
goods and related items. During the past 12 months,
a representative period, Oshman's received gross
revenues in excess of $500,000 and, during the same
period, purchased goods directly from outside the
State of Texas valued in excess of $50,000 which
goods were shipped from points outside the State to
its places of business in the State of Texas.
J. R. Hobbs Co is a Texas corporation with its
principal office and place of business at Houston,
Texas, where it is engaged in the installation of
heating and air conditioning equipment. During the
past 12 months, a representative period, Hobbs
purchased goods directly from outside the State of
Texas valued in excess of $50,000 which goods were
shipped from points outside the State to its places of
business in the State of Texas.
Joe A. McDermott, Inc., is a Texas corporation
with its principal office and place of business at
Houston, Texas, where it is engaged in the business
of a general contractor. During the past 12 months,
a representative period, McDermott purchased
goods directly from outside the State of Texas
valued in excess of $50,000 which goods were
shipped from points outside the State to its places of
business in the State of Texas.
The parties stipulated, and we find, that
Sakowitz, Oshman's, Hobbs and McDermott are,
and have been at all times material herein, persons
within the meaning of Section 2(1) of the Act and
are employers engaged in commerce, or an industry
affecting commerce, within the meaning of Section
2(2) and Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is now, and has been at all times
material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
McDermott is constructing a shopping center for
Town and Country Village in a suburban area of the
City of Houston at which Sakowitz and Oshman's
have leased space and facilities to be used after
construction is completed. In the course of its
business, McDermott subcontracted the air
conditioning and heating facilities of its Town and
Country Village project to Hobbs under an
arrangement whereby Hobbs and another employer,
Town and Country Commercial Park, Ltd., would
thereafter own and maintain such facilities under the
partnership name of Town and Country Services.
Sakowitz and Oshman's, as well as other tenants of
Town and Country Village, pay for the air
conditioning and heating services and maintenance
of the air conditioning facilities provided by Town
and Country Services indirectly by reason of the
174 NLRB No. 60
LOCAL 54, SHEET METAL WORKERS
fact that such services are included in the monthly
rental paid by all tenants to Town and Country
Village.
At no time material herein has Respondent had
any labor dispute with Sakowitz or Oshman's;
however, at all times material herein Respondent
has had a bona fide labor dispute with Hobbs.
Since on or about September 14, 1967,
Respondent distributed , and threatened to distribute,
the below-quoted handbill at Sakowitz ' operating
store in the downtown area of the City of Houston:
J. R. HOBBS CO.
THE AIR CONDITIONING
CONTRACTOR
On the Town and Country Project pays
SUB-STANDARD WAGES
to its employees, wages that are far below the
prevailing negotiated wage in this area for Sheet
Metal Workers. This payment of sub-standard
wages by J. R. Hobbs Co. harms and injures
economically not only its employees, but also is
an attempt to undermine and undercut the
established wages in this area.
SAKOWITZ apparently sanctions the payment
of sub-standard wages by taking space in the
Town and Country Project.
We ask you to refrain from doing business with
SAKOWITZ unless they are willing to charge
you sub-standard prices for their merchandise. If
SAKOWITZ is unwilling to cut their prices,
refuse to buy their merchandise and ask them to
do business with companies that do not ask their
employees to cut their wages.
Cut rate wages is not fair unless merchandise
prices are also cut rate.
You the public - must voice your protest
against cut rate wages. Otherwise, this disease
may spread to you - and you -- and you.
Sincerely,
Louis Krzesienski
Business Manager
Sheet Metal Worker's
Local Union 54
During the same period of time the Respondent
threatened to distribute and distributed handbills at
Oshman's operating store in the downtown area of
the City of Houston. The handbills were identical to
those set forth above but referred to Oshman's
instead of Sakowitz.
Contentions of the Parties
363
The General Counsel contends that the
handbilling violated Section 8(b)(4)(ii)(B), and was
beyond the scope of the protection of the publicity
proviso to Section 8(b)(4) of the Act. The
Respondent asserts, by way of its answer to the
complaint, that its conduct was lawful by virtue of
the publicity proviso. For the reasons noted
hereafter, we agree with the Respondent, and
conclude that its conduct did not violate the Act.
Discussion
Section 8(b)(4)(ii)( B)' makes it an unfair labor
practice for a labor organization to threaten, coerce
or restrain any person where an object is to force or
require any person to cease doing business with any
other person. The proviso' to Section 8(b)(4)
authorizes publicity other than picketing which
persuades customers of a secondary employer to
stop trading with him except to the extent that such
publicity has the effect of cutting off his deliveries
or inducing his employees to cease work.3
Although it is acknowledged that the Board has
found handbilling in somewhat similar cases to be
protected by the publicity proviso,4 the General
Counsel claims that the present case is
distinguishable and that the Board has never passed
on the express issue of whether the publicity proviso
protects handbilling at a store of a secondary
employer other than the one at which the services of
the primary employer have been utilized.
Specifically, the General Counsel contends "that a
union may only engage in a secondary consumer
boycott at the establishment of the secondary
employer's contact with the primary employer"
(emphasis in the original).
Relating this contention to the facts here, the
issue is whether the Union's handbilling at
downtown store sites of Oshman's and Sakowitz was
The relevant portions of Section 8(b)(4)(ii)(B ) provide: It shall be an
unfair labor practice for a labor organization or its agents . to
threaten , coerce, or restrain any person engaged in commerce or in an
industry affecting commerce , where in either case an object thereof is.
forcing or requiring any person to cease using, selling, handling,
transporting , or otherwise dealing in the products of any other producer, or
manufacturer , or to cease doing business with any other person .. .
The language of the "publicity" proviso states Provided further, That
for the purposes of this paragraph (4) only, nothing contained in such
paragraph shall be construed to prohibit publicity , other than picketing, for
the purpose of truthfully advising the public , including consumers and
members of a labor organization, that a product or products are produced
by an employer with whom the labor organization has a primary dispute
and are distributed by another employer, as long as such publicity does not
have an effect of inducing any individual employed by any person other
than the primary employer in the course of his employment to refuse to
pick up, deliver, or transport any goods , or not to perform any services, at
the establishment of the employer engaged in such distribution.
'See N L R B. v. Fruit and Vegetable Packers Local 760, 377 U.S 58
at 70, 71.
'Plumbers and Pipefitters Local Union 142, AFL-CIO (Piggly Wiggly),
133 NLRB 307, Milk Drivers and Dairy Employees Local 537 (Lohman
Sales Company, 132 NLRB 901.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violative of the Act because the handbilling was not
limited to the suburban shopping center where
Hobbs was performing construction and services for
Oshman's and Sakowitz.
Neither the Act nor the legislative history indicate
the existence of a geographic limitation on the
publicity proviso. To the contrary, the legislative
history indicates that it was contemplated that
utilization of mass media was protected by the
proviso. In that connection, we note that the then
Senator John Kennedy explained the proviso in the
following manner:'
We were not able to persuade the House
conferees to permit picketing in front of that
secondary shop, but we were able to persuade
them to agree that the union shall be free to
conduct informational activity short of picketing.
In other words, the union can hand out handbills
at the shop, can place advertisements in the
newspapers, can make announcements over the
radio, and can carry on all publicity short of
having ambulatory picketing in front of a
secondary site.
The absence of a geographic limitation to the
scope of the proviso is inherent in the fact that radio
and newspaper advertising is within the scope of its
protection. To restrict the locus of permissible
handbilling, while protecting appeals to all
prospective consumers who listen to radios or read
newspapers would be patently inconsistent. We
conclude, therefore, that the Union's handbilling at
the downtown stores of Oshman's and Sakowitz was
protected by the publicity proviso.' Accordingly, we
shall dismiss the complaint.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.
'105 Congressional Record 16414 (September 3, 1959)
'Supra, fn. 4.