Plumbers and Pipe Fitters Local Union 142

National Labor Relations Board - Board Decisions

Feb 15, 1968

169 N.L.R.B. 840 (N.L.R.B. 1968)

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers and Pipe Fitters Local Union 142, affiliated
with United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada , AFL-CIO
and Cross Construction Co., Inc. Case
23-CC-255
February 15, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On December 12, 1967, Trial Examiner John F.
Funke issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent
filed exceptions to the breadth of the order recom-
mended by the Trial Examiner and a supporting
brief, and the General Counsel filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as indicated
herein. 1
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, except that
paragraph I and the correspondeing paragraph in
the notice to be posted is hereby amended by delet-
ing the phrase "or any other person" after the
phrase "to cease doing business with John Bright
Enterprises, Inc."
I The Respondent excepts to the breadth of the order. At the hearing,
the General Counsel introduced into the record a copy of a recent deci-
sion in an unrelated case, finding the Respondent in violation of Sec
8(b)(4)(i) and (ii)(B). Respondent had voluntarily complied with the
Recommended Order in that case. On the basis of this single violation, the
Trial Examiner issued a broad cease-and-desist order. In the circum-
stances of this case, we do not believe such a broad order is warranted.
However, the language prohibiting the picketing of any other secondary
employers where an object is to force or require them to cease doing busi-
ness with the primary employer involved herein is normal Board practice,
and is justified in the present case. International Brotherhood of Electri-
cal Workers v. N L R.B , 341 U.S. 694 (1951); Journeymen Plasterers'
Protective and Benevolent Society (Royal Rin Builders, Inc.), 158 NLRB
1608, 1619.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN FUNKE , Trial Examiner : Based upon a charge
filed October 31, 1967,1 by Cross Construction Co., Inc.,
herein called Cross, the Regional Director for Region 23
of the Board issued a complaint on November 9, 1967,
against Plumbers and Pipe Fitters Local Union 142, af-
filiated with United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, herein called
Respondent , alleging that Respondent had induced em-
ployees to strike and threatened employers neutral to a
dispute between Respondent and John Bright Enter-
prises , Inc., herein called Bright, thereby engaging in un-
fair labor practices within the meaning of Section
8(b)(4)(i) and (ii)(B) of the National Labor Relations Act.
The notice of hearing set this matter for trial on
November 27, 1967. The 10-day period for filing an
answer to the complaint expired on Monday , November
20,1967.2
At the duly appointed time, date , and place, I was
present to preside at the trial of this cause . Upon the
record being opened , counsel for the General Counsel
and the Charging Party made their appearances. No ap-
pearance was made by Respondent , by either representa-
tive or attorney . I instructed counsel for the General
Counsel to contact Arthur Gochman , attorney for
Respondent, by telephone immediately prior to the
record being opened but after 10 a .m. After the record
was opened , counsel for the General Counsel reported on
the record the substance of his telephone conversation
with Mr. Gochman , which was to the effect that Mr.
Gochman was engaged with other matters and was una-
ble to and would make no appearance.
There was neither a motion for continuance nor an
answer on file. The General Counsel moved that the al-
legations of the complaint be deemed admitted and for
summary judgment on the basis that no answer had been
filed in the cause. I granted the General Counsel 's motion
in all respects . The General Counsel then introduced his
exhibits:
Exh. 2(a)-being a copy of the Trial Examiner
Boyd Leedom's decision in Plumbers and Pipe Fit-,
ters Local Union 142, affiliated with United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada , AFL-CIO, (Charles C. Madden
Company), Case 23-CC-212, dated March 30,
1967, in which he found that this same Respondent,
I All dates are 1967 unless otherwise noted
2 G C Exh. I (b) reflects that service of the complaint upon Respond-
ent, with a copy being served upon Attorney Arthur Gochman, was
made November 9, 1967 November 19, 1967, was a Sunday; ac-
cordingly, under Section 102.20 of the Board's Rules and Regulations, Se-
ries 8, as amended, Respondent had until the following day, Monday,
November 20, 1967, in which to file an answer.
169 NLRB No. 113
PLUMBERS AND PIPE FITTERS LOCAL UNION 142
represented by Attorney Arthur Gochman, had vio-
lated Section 8(b)(4)(i)(ii)(B) of the Act by seeking to
cause neutral employers to cease doing business with
M & S Plumbing Co. with whom Respondent had a
dispute;
Exh. 2(b) -Notice to Members in the above case;
and
Exh. 2(c) - Certificate of Posting of the Notice in
the above case.
The General Counsel announced that Respondent had
complied with the Trial Examiner's Decision in Case
23-CC-212, as Exh. 2(c) would indicate. The purpose of
the General Counsel's introduction of the above three ex-
hibits was in relation to the remedy sought herein. The
General Counsel contends that a broad order should
issue herein because of Respondent's proclivity to violate
Section 8(b)(4)(i) and (ii)(B) of the Act. On the basis of
the above, I make the following:
FINDINGS OF FACT
1. Jurisdiction
I find that the allegations in paragraphs (1) through (5)
of the complaint are deemed to be true in the absence of
a timely filed answer and I so find. The allegations in
these paragraphs establish that Respondent is a labor or-
ganization within the meaning of Section 2(5) of the Act,
that Cross is engaged in the construction industry as a
general contractor, that Bright is engaged in the construc-
tion industry as a mechanical contractor as well as a
general contractor, and that during the past 12 months
Cross and Bright each purchased materials valued in ex-
cess of $50,000 from persons outside the State of Texas,
who in turn shipped said materials from points outside the
State of Texas to Cross and Bright to points inside the
State of Texas; and that Cross and Bright are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. The Unfair Labor Practices
I find that in the absence of a timely filed answer the al-
legations of paragraphs (6) through (15) of the complaint
are deemed to be admitted and I so find. From such ad-
mitted allegations, I find that Cross is a general contrac-
tor for American Telephone and Telegraph Company,
under which Cross is constructing a bombproof radio
relay communication center on a mountain top near Bul-
verde, Texas, approximately 27 miles north of San An-
tonio, Texas. Cross assigned the plumbing and mechani-
cal work on the AT&T job to Bright. At no time material
to this controversy has Respondent had any labor dispute
with Cross.
On or about August 1, 1967, and again on or about Au-
gust 7, 1967, and continuing to date, Respondent did
threaten, coerce, and restrain Cross by stating that it
would picket the AT&T jobsite so long as Bright was the
mechanical contractor on the job or so long as Cross or
AT&T did business with Bright on the AT&T job.
On or about October 31, 1967, Respondent did order,
instruct, request, and appeal to the employees of Cross
and other persons engaged in commerce, or in an industry
affecting commerce, to cease work at the AT&T job.
Respondent, on or about October 31, 1967, and con-
tinuing until the afternoon of November 3, 1967,
picketed at the AT&T job.
841
As a result of Respondent's acts and conduct set forth
above, the employees of Cross and other persons engaged
in commerce or in an industry affecting commerce ceased
working at the AT&T jobsite. As a consequence, Cross
and other employers were unable to proceed with con-
struction of the AT&T job.
By the orders, instructions, requests, appeals, and
picketing above, Respondent has engaged in, and induced
and encouraged individuals employed by Cross, and
other persons engaged in commerce or in an industry af-
fecting commerce, to engage in, strikes or refusals in the
course of their employment to use, process, transport, or
otherwise handle or work on goods, articles, or commodi-
ties, or to perform services.
By the threats, coercion, restraint, and picketing above
described, Respondent has threatened, coerced, and
restrained Cross and other persons engaged in commerce
or in an industry affecting commerce.
An object of the acts and conduct of Respondent set
forth above was and is to force or require Cross and other
persons engaged in commerce, or in an industry affecting
commerce, to cease using, selling, handling, transporting,
or otherwise dealing in the products of and to cease doing
business with Bright.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Cross and Bright are employers within the meaning
of Section 2(6) and (7) of the Act.
3. Respondent unlawfully induced employees neutral
to the dispute between it and Bright to engage in a strike
and a refusal to work and Respondent thereby violated
Section 8(b)(4)(i)(B) of the Act. Respondent also violated
Section 8(b)(4)(ii)(B) of the Act by threats, coercion, and
restraint upon employers neutral to the dispute between
Respondent and Bright. An object of the conduct in both
instances was and is to force or require Cross and other
persons engaged in commerce or in an industry affecting
commerce, to cease using, selling, handling, transporting,
or otherwise dealing in the products of and to cease doing
business with Bright. By such acts and conduct, Respond-
ent did engage in unfair labor practices within the mean-
ing of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and
(7) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and '(7) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(b)(4)(i) and (ii)(B) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
The General Counsel contends that Respondent has
demonstrated a proclivity for violating this section of the
Act. He cites the Trial Examiner's decision in Charles C.
Madden Company, Case 23-CC-212, supra, a copy of
which was introduced into the record in this cause as
General Counsel's Exhibit 2(a). The General Counsel
seeks a broad order in this case because of Respondent's
proclivity to violate the law, and I find that a broad order
is necessary to effectuate the policies of the Act. Intl.
Brotherhood of Electrical Workers, Local 861 (Albert K.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newlin , Inc.), 143 NLRB 1169 , enfd . 353' F.2d 763
(C.A. 5, 1965).
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this case, it is hereby
recommended that Respondent, its officers, agents, and
representatives, shall:
1. Cease and desist from inducing and encouraging
any individual employed by Cross Construction Co.,
Inc., or by any other person other than John Bright Enter-
prises , Inc., similarly engaged in commerce or in an in-
dustry affecting commerce, to engage in a strike or a
refusal in the course of his employment to use, manufac-
ture, process, transport, or otherwise handle or work on
any articles, materials , or commodities, or to perform any
services, or threatening, coercing, or restraining Cross
Construction Co., Inc., or any other person similarly en-
gaged in commerce or in an industry affecting commerce;
where in either case an object thereof is to force or
require Cross Construction Co., Inc., or any other em-
ployer or person engaged in commerce or in an industry
affecting commerce to cease doing business with John
Bright Enterprises, Inc., or any other person, in violation
of Section 8(b)(4)(i) and (ii)(B) of the Act.
2. Take the following affirmative action which I find
is necessary to effectuate the policies of the Act:
(a) Post in conspicuous places in Respondent's busi-
ness offices, meeting halls , and all places where notices to
members are customarily posted, copies of the attached
notice marked "Appendix."3 Copies of said notice, on
forms to be furnished by the Regional Director for Re-
gion 23, after being duly signed by an authorized
representative of the Respondent shall be posted by
Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter.
Reasonable steps shall be taken by Respondent to insure
that such notices are not altered, defaced, or covered by
other material. Upon request of the Regional Director,
the Respondent shall supply him with a sufficient number
of signed copies for posting by Cross Construction Co.,
Inc., if it desires to do so, at the site involved in this
proceeding.
(b) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.4
8 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
4 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our mem-
bers that:
WE WILL NOT induce or encourage individuals em-
ployed by Cross Construction Co., Inc., or by any
other persons engaged in commerce, or in an indus-
try affecting commerce, to engage in a strike or
refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle
or work on any goods, articles, materials, or com-
modities, or to perform services, or threaten,
restrain, or coerce Cross Construction Co., Inc., or
any other employer or person engaged in commerce,
or in an industry affecting commerce, where an ob-
ject in either case is to force or require any employer
or person to cease doing business with John Bright
Enterprises, Inc., or any other person.
PLUMBERS AND PIPE
FITTERS LOCAL UNION 142,
AFFILIATED WITH UNITED
ASSOCIATION OF
JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF THE
UNITED STATES OF
CANADA, AFL-CIO
Labor Organization
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas
77002, Telephone CA 8-0611, Extension 4721.