Plumbers Local 155

National Labor Relations Board - Board Decisions

Mar 15, 1972

195 N.L.R.B. 900 (N.L.R.B. 1972)

900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers, Steamfitters , & Pipefitters Local No. 155
and The Kroger Co . Case 26-CC-232
March 15, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On October 7, 1971, Trial Examiner John F. Funke
issued the attached Decision in this proceeding. There-
after, General Counsel filed exceptions and a support-
ing 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 au-
thority in this proceeding to a three-member panel.
The Board'has considered the record and the Trial
Examiner 's Decision in light of the exceptions and brief
and has decided to affirm the Trial Examiner' s rulings,
findings, and conclusions' and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Plumbers,
Steamfitters, & Pipefitters Local No. 155, its officers,
agents, and representatives , shall take the action set
forth in the Trial Examiner's recommended Order.
MEMBER KENNEDY, dissenting in part:
I agree with my colleagues that by picketing at the
entrances to the shopping center where the Kroger
store is located Respondent coerced and restrained
Kroger in violation of Section 8(b)(4)(ii)(B) of the Act.
However, I must dissent to their failure to reverse the
Trial Examiner's dismissal of the complaint herein in-
sofar as it alleges that Respondent also violated Section
8(b)(4)(i)(ii)(A) and 8(b)(4)(i)(B) of the Act, and to the
conclusion that the handbilling engaged in by Re-
spondent simultaneously with the picketing was pro-
tected activity.
As the record amply demonstrates, and as the Trial
Examiner found, on January 11, 1971, while a shop-
ping center in Sherwood, Arkansas, including a store
being built for Kroger, was under construction, Re-
spondent was engaged in picketing at the construction
site with picket signs protesting the wages, hours, and
working conditions of West Rock, Inc., the plumbing
' In adopting the Trial Examiner's recommended dismissal of the com-
plaint's Section 8(b)(4)(i) and (ii)(A) allegation, we do not adopt that por-
tion of his rationale in the second paragraph in sec . C. commencing with
"More importantly" and ending with that paragraph. We also do not adopt
the Trial Examiner's comments appearing in fn. 5 with respect to the appli-
cability of the "rules of evidence."
and mechanical subcontractor at the jobsite. Prior to
the picketing, the business manager of Respondent, J.
W. Woodson, called Kroger's division construction en-
gineer, James Patterson, and asked him if he (Patter-
son) was aware that a nonunion pipefitter was engaged
at the project. Patterson was not aware of the situation.
He agreed with Woodson, however, that it was the
policy of Kroger to use only union contractors and that
when pipefitting work was to be done by Kroger it
would employ a union contractor. Woodson "sug-
gested" that Kroger's leases for store space should re-
quire that work thereon be done by union contractors
and that since Sherwood was a strong union area it
would be detrimental to Kroger to have picketing en-
gaged in at the site.
Upon completion of the construction work, Kroger
opened its store on July 27, 1971. On that date, Re-
spondent commenced picketing the store with pla-
cards, the legend on which read that the Kroger store,
and others in the shopping center, was constructed by
contractors paying less than the established wage scale
for plumbers and steamfitters in the area. On the same
day, and continuing thereafter, Respondent distributed
handbills at the entrances to the shopping center alleg-
ing that the building housing the Kroger store, as well
as others, was constructed by contractors who paid
their employees less than the prevailing wage rates, and
stated that "these are facts that you should consider in
making your decisions as to whether or not you would
want to patronize an establishment built under such
conditions." These handbills were distributed by in-
dividuals stationed at the entrances to the shopping
center and by a third person who entered the shopping
center parking lot and placed the handbills under the
windshield wipers of cars parked on the lot. The distri-
bution of the handbills was carried on simultaneously
with the picketing.
While the picketing and handbilling were engaged in
by Respondent, individuals employed by subcontrac-
tors at the Kroger facility, including Price Fuel Electric
and Arkansas Sign and Neon Company, performed
some work there. The Trial Examiner found that Com-
mercial Refrigeration performed some repair work
after the pickets left. John B. Dyke Company, which
had furnished and installed the automatic door operat-
ing equipment at the Kroger store, was called on July
27 to repair the equipment. Dyke dispatched William
F. Russell, its employee, who was a member and a
business agent of the Union representing Dyke's em-
ployees, to make the repairs. The repairs were not made
by Russell. The Trial Examiner rejected as hearsay
testimony as to the reason given by Russell for failure
to perform the work called for. He found, however, that
Dyke did not repair the equipment and that it engaged
Plant Electric Company to do the job.
195 NLRB No. 156
PLUMBERS LOCAL 155 901
It is well settled that the words " `induce or encour-
age' are broad enough to include in them every form of
influence and persuasion." International Brotherhood
of Electrical Workers, Local 501, et al. v. N.L.R.B., 341
U.S. 694, 701-702. It is likewise well settled, that no
proof of success or effectiveness of the picketing in
creating a work stoppage is necessary in order to estab-
lish a violation. N. L.. R.B. v. Associated Musicians, Lo-
cal 802, AFL, 226 F.2d 900 (C.A. 2, 1955),,cert. denied
351 U.S. 962, In the instant case, the mere presence of
the picket line was sufficient to constitute inducement
or encouragement of individuals employed by Kroger,
Price Fuel Electric, Arkansas Sign and Neon Com-
pany, John B. Dyke Company, and others. In any
event, an inference is warranted that the picket line was
effective, at least insofar as the Dyke door equipment
repair incident is concerned.
I am also of the view that the failure of the Trial
Examiner to find that the distribution of handbills, con-
taining substantially the same message as the picket
placards and conducted simultaneously and in gener-
ally the same area as the picketing was tantamount to
picketing and was unprotected by the Act was errone-
ous. In Lumber and Sawmill Workers Local Union No.
2797 (Stoltze Land & Lumber Company), 156 NLRB
388, the Board found that the distribution of handbills
in circumstances strikingly similar to those involved
here amounted to picketing. Similarly, in Lawrence
Typographical Union No.570 a/w International Typo-
graphical Union AFL-CIO (Kansas Color Press, Inc.),
169 NLRB 279, enfd. 402 F.2d 452 (C.A. 10, 1968), the
Board found that handbilling in circumstances where
it constituted a part of the union's campaign, which
included picketing, also constituted picketing. See also
Nashville Building and Construction Trades Council
(Castner-Knott Dry Goods Store), 188 NLRB No. 69.
I must also dissent to the failure of my colleagues to
find that Respondent's conduct here had an object of
forcing or requiring Kroger to agree that in the future
all construction work on buildings to be occupied by it
would be done by union contractors or subcontractors,
and that in the event Kroger leased space from an
owner or a developer of a, shopping center its lease
would provide for a union-built facility. To me, this
object is implicit both from Respondent's picketing and
handbilling here, such conduct having occurred after
the store had been completed and opened for business,
and from the conversations early in January 1971, be-
tween Respondent' s ' Business Manager Woodson and
Kroger's Construction Engineer Patterson. I fail to see
in what manner Kroger could settle the dispute with
Respondent except to now agree that in the future it
would subcontract only to union contractors or deal
only with firms employing union contractors. Such ac-
tivity is clearly proscribed by Section 8(b)(4)(A) of the
Act. The Columbus Building and Construction Trades
Council, AFL-CIO (Merchandise Properties, Inc), 149
NLRB 1224; Columbus Building and Construction
Trades Council, AFL-CIO (The Kroger Co.), 164
NLRB 516.
On the basis of the foregoing , I would find that by
its picketing and handbilling Respondent violated Sec-
tion 8(b)(4)(i), (ii)(A) and (B) of the Act as alleged in
the complaint.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FuNKE, Trial Examiner : This proceeding was
brought before the National Labor Relations Board upon:
1. A charge by The Kroger Co., herein Kroger , against
Plumbers, Steamfitters & Pipefitters Local No. 155, herein
Local 155, alleging Respondent violated Section 8(b)(4)(i)
(ii)(A) and (B) of the Act, filed August 4, 1971.
2. Complaint by the General Counsel alleging Local 155
violated Section 8(b)(4)(i)(ii)(A) and (B) of the Act issued
August 13, 1971.
3. Hearing held by me at Little Rock, Arkansas , August
31, 1971.
4. Transcript of hearing and oral argument of the parties
received by me September 29, 1971.
Upon the entire record in this case and from my observa-
tion of the witnesses while testifying , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANIES INVOLVED
Kroger is a corporation engaged in the retail grocery busi-
ness at various locations in the Little Rock area including a
store at 119 Country Club Road, Sherwood, Arkansas, the
store involved in this proceeding. This store is leased by
Kroger from Metropolitan Trust Company.
During the past 12 months Kroger has sold goods valued
in excess of $500,000 at its Little Rock locations and during
the same period has purchased products valued in excess of
$50,000 shipped to it from places outside the State of Arkan-
sas.
Kroger is engaged in commerce within the meaning of the
Act.
Rock Steel Building Co., herein Rock Steel, is a corpora-
tion with its principal place of business at Little Rock, where
it is engaged in the general contracting business. During the
past 12 months it purchased goods and materials valued in
excess of $50,000 from places outside the State of Arkansas.
Rock Steel is engaged in commerce within the meaning of
the Act.
II LABOR ORGANIZATION INVOLVED
Local 155 is a labor organization within the meaning of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Metropolitan Trust was the owner of the premises located
at 119 Country Club Road and Rock Steel was the general
contractor for the construction of a retail shopping center at
that location. Among Rock Steel's subcontractors was West
Rock, Inc., a wholly owned subsidiary engaged in the plumb-
ing and mechanical contracting business. According to the
testimony of Leland Jones, president of Rock Steel, neither
Rock Steel nor West Rock was unionized. On or about Janu-
ary 11, 1971, while the building was under construction, West
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rock was picketed by Local 155 by a picket carrying a sign
reading:
Local Union No. 155, Plumbers and Steamfitters, for
informational purposes is picketing West Rock, Incor-
porated, as it does not meet the standard of wages, hours
and working conditions established by Local 155 in this
area.
A charge was filed against Local 155 alleging an unlawful
labor practice by the attorney for West Rock which was later
withdrawn.'
James Patterson, division construction engineer for Kro-
ger, testified that he was familiar with the 119 Country Club
Road project and that in mid-January 1971 he received a
telephone call from J.W. Woodson, business manager of Lo-
cal 155,2 who asked him if he was aware of the construction
at Sherwood (the situs involved) and if he was also aware that
a nonunion pipefitter was employed. Patterson was not aware
that a nonunion pipefitter was employed but agreed with
Woodson that it was the policy of Kroger to use only union
contractors and that when pipefitting work was to be done by
Kroger it would employ a union contractor.' Patterson ad-
vised Woodson to talk to either Rock Steel or Metropolitan
who were responsible for the construction of the building.
Woodson then suggested that Kroger's leases should require
union contractors and that since Sherwood was a strong
union area it would be detrimental to Kroger to have picket-
ing "out there."
B. The Picketing and Handbilling
It is not disputed that on July 27, 1971,° and at various
intermittent dates thereafter until August 20, Local 155 pick-
eted the Kroger store at Country Club Road with placards
reading:
The building occupied by Kroger-Sterling Stores &
others on this site were constructed by Contractors pay-
ing less than the established wage scale for plumbers and
steamfitters in this area .... Plumbers and Steamfitters
Local Union No. 155
On the same day and continuing thereafter Local 155 dis-
tributed handbills at the entrances to the shopping center
reading:
Notice to the public
The building housing the Kroger, Sterling Stores, and
others was constructed by some contractors who paid
their employees less than the prevailing wage rates paid
for similar work in the Little Rock area.
Our organization has continuously sought to improve
the wages and working conditions of employees in the
Little Rock area. We are believers in "Wages, not Wel-
fare." We believe that everyone who works is entitled to
be paid a reasonable wage for his efforts.
We further believe that employers who cut wages and
attempt to reduce the earning power of the workers in
our area are contributing directly to a situation which
ultimately costs all of us tax monies.
' This testimony was received solely for the purpose of fixing the motiva-
tion of Local 155 in the picketing and handbilling at issue here
2 The answer admits that Woodson was business agent of Local 155
Local 155 called no witnesses and Woodson did not testify.
' Whatever agreement existed between Local 155 and Kroger as to the
employment by Kroger of nonunion subcontractors was apparently reached
as a result of a dispute between them at a Kroger store at Benton, Arkansas,
where Kroger did employ a' nonunion contractor for remodeling work.
(There was no picket line at Benton and the nonunion contractor finished
the job.)
The store opened on July 27
We believe these are facts that you should consider in
making your decisions as to whether or not you would
want to patronize an establishment built under such
conditions.
Plumbers & Steamfitters Local No. 155
Robert F. Dietrich, division personnel manager for Kro-
ger, testified that there were two public entrances to the shop-
ping center from Country Club Road. Dietrich was at the
store on July 27 (the day it opened) and observed that about
8 a.m. two unidentified persons carrying the placards referred
to above stationed themselves at the street entrances while a
third person entered the shopping center parking lot and
began placing the handbills under the windshields of the cars
on the lot. Dietrich and Terry Henderson, zone manager,
asked him to stop. He did and stationed himself at one of the
entrances and distributed the handbills to customers in cars
as they entered the premises. These persons were later rein-
forced by two, other unidentified persons in the picketing and
handbilling. Dietrich agreed that the, picketeers were at all
times courteous to him and that one of them permitted his
picture to be taken by Dietrich.
On cross-examination Dietrich testified that none of Kro-
ger's employees, all of whom were union, ceased work or
refused to cross the picket line.
Earl Cauley, store manager for Kroger, testified that he
was present at the store on July 27 and that he had a door
that would not work and that he reported this to Karen
Fulmer, secretary to the construction department, that after
he spoke to her he received a call from John B. Dyke of the
John B. Dyke Company, who had installed the doors, telling
him that the company could not repair the doors.' The work
was then performed by Plant Electric Company.
Two other Kroger subcontractors, Price Fuel Electric and
Arkansas Sign and Neon Company, performed all required
services on that day. Commercial Refrigeration performed
some repair work after the pickets left.
C. Conclusions
The first determination to be made is the object of the
picketing and the handbilling. Apart from advertising the fact
that construction contractors employed at the shopping cen-
ter paid substandard wages the handbills suggested that cus-
tomers might not wish to patronize a building built under
such conditions. The picketing and handbilling were both
directed to Kroger, a neutral employer. Based on the uncon-
tradicted testimony of Leland Jones and James Patterson
regarding conversations with Woodson in January 1971, I
find that Local 155 also had for an object the forcing of
Metropolitan Trust to cease using nonunion contractors. It
sought to accomplish this objective by forcing Kroger to
cease doing business with Metropolitan or any' other property
owner who employed nonunion construction contractors.
This objective I find unlawful under Section 8(b)(4).
I find no evidence to support the allegation that a further
object of Local 155's conduct was to force "`Kroger to enter
into lease contracts providing that Kroger would not lease or
occupy buildings built by contractors who employ nonunion
labor." Apart from the amibiguity of the allegation (I do not
know how you enter into a lease which provides you will not
lease), I do not find that Kroger was required 'to enter into
'
Testimony as to the reason given by Dyke for failure to perform the
work was rejected as hearsay Prior testimony by Dyke as to what he was
told by one of his employees as to his refusal to work at Kroger on that day
was also rejected Granted that the Board is not bound by any rules of
evidence the testimony offered here was grossly prejudicial The purpose
was not to establish what Dyke told Cauley but'that an employee of Dyke
had refused to cross the picket line
PLUMBERS LOCAL 155 903
any agreement prohibited by Section 8(e). Woodson did sug-
gest that Kroger have put into its lease language requiring the
lessor to use union contractors but this casual suggestion was
never pursued. I would not find a separate unlawful objective
on evidence as tenuous as this. More importantly, the Act
does not prohibit employers from entering such a lease or
agreement between themselves. Section 9(e) prohibits so-
called hot-cargo contracts between "any labor organization
and any employer." Neither the language used nor the intent
of Congress could be clearer as to what was proscribed. No
principle of statutory construction could serve to stretch the
proscription to agreements between employers where the lim-
itation is so plainly fixed. I shall recommend that the allega-
tion that Local 155 violated Section 8(b)(4)(i)(ii)(A) of the
Act be dismissed.
Counsel for Local 155 has contended that peaceful infor-
mation picketing is immunized from restraint by both the
First Amendment and Section 8(c) of the Act, an issue I
believe settled beyond cavil. It is now a cliche that picketing
is more than free speech and is subject to limitation by stat-
ute.' That the Congress did not extend the constitutional
guarantee to truthful, peaceful, informational picketing is
clear since while specifically excluding such handbilling (with
an exception) from the reach of Section 8(b)(4) it, with equal
specificity, refused to extend the same exclusion to picketing.'
The second question, with respect to the picketing, was
whether (a) it induced or encouraged any individual to en-
gage in a strike or a refusal to perform any services and (b)
it coerced or restrained any individual engaged in commerce.
As to (a), above, I find no evidence of such inducement or
encouragement. The picket signs were not directed to any
employees of Kroger nor to any employees of any other em-
ployer. All of Kroger's employees worked throughout the
picketing although all were union. No efforts were made to
block access to the store and the delivery entrance to the store
was not picketed. In the absence of any evidence to establish.
that any employee of Kroger or any employee of any store at
the shopping center was solicited to cease work and of any
evidence that any delivery employee or any other employee
was stopped at either of the entrances I shall recommend that
the complaint as to a violation of Section 8(b)(4)(i)(B) of the
Act be dismissed.'
As to (b), I reach a different conclusion. I think it is now
established that peaceful picketing of a neutral employer by
a labor organization, related to a labor dispute with another
employer, inevitably coerces and restrains the neutral em-
ployer. Customers are certainly not encouraged to patronize
a picketed store and here the placards, read in conjunction
with the language of handbills, were designed to make cus-
tomers reconsider purchasing at Kroger. That, to a retail
store, is coercion pure and simple. I therefore find that the
picketing, although peaceful and informational, violated Sec-
tion 8(b)(4)(ii) of the Act.
Turning to the handbillmg, I find it protected by the
proviso clause. It was truthful so far as the record discloses
and it did no more than advise the customers that the build-
ing in which Kroger was located was constructed by contrac-
tors who did not pay the prevailing wage. Nor did the hand-
billing, on this record, have the effect of inducing any
individual to refuse to pick up, deliver, or transport any goods
or not to perform any services. The argument of the General
Counsel that since the handbilling was accompanied by un-
6 International Brotherhood ofElectrical Workers v N.L R B, 341 U.S.
694.
See the remarks of Senator Kennedy, Leg Hist, Vol 11, p 1432
° Service and Maintenance Employees Union, Local 399, AFL-CIO (The
William J. Burns International Detective Agency, Inc), 136 NLRB 431
lawful picketing it acquired illegality by association I reject.
Local 155 had the right to handbill as it did here; it did not
have the right to picket and there the matter rests. Although
the two courses of conduct were contemporaneous they are
separable and subject to separate finding.
CONCLUSIONS OF LAW
1. Local 155, by picketing at the entrances to the-shopping
center at 119 Country Club_ Lane, Sherwood, Arkansas,
where the Kroger store is located, with placards as described
here, coerced and restrained Kroger in violation of Section
8(b)(4)(ii)(B) of the Act.
2. Local 155 did not violate Section 8(b)(4)(i)(ii)(A) of the
Act.
3. Local 155 did not violate Section 8(b)(4)(i)(B) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found the Respondent engaged in certain unfair
labor practices I shall recommend that it cease and desist
from the same and take certain affirmative action necessary
to effectuate the purposes of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:'
ORDER
Respondent, Plumbers, Steamfitters & Pipefitters Local
No. 155, its officers, agents, and representatives, shall:
1. Cease and desist from threatening, coercing, and re-
straining the Kroger Co., or any other person engaged in
commerce, where an object thereof is to force The Kroger Co.
to cease doing business with Metropolitan Trust Company
and/or to force Metropolitan Trust Company to cease doing
business with Rock Steel Building Co. or any other person
engaged in commerce.
2. Take the following affirmative action:
(a) Post at its offices at Little Rock, Arkansas, and at any
other offices maintained by it, copies of the notice attached
hereto marked "Appendix."" Copies of said notice, to be
furnished by the Regional Director for Region 26, shall, after
being signed by Respo.ident's authorized representative, be
posted by Respondent immediately upon receipt thereof and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its
members are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
defaced, altered, or covered by any other material.
(b) Notify the Regional Director for Region 26, in writing,
within 20 days from the date of this Decision, what steps have
been taken to comply therewith."
' In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes
30 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
" In the event that his recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read "Notify
the Regional Director for Region 26, in writing, within 20 days from the date
(Cont)
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further ordered that the complaint be dismissed inso-
far as it alleges Respondent has violated the Act other than
as herein found.
of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten , coerce, or restrain The Kro-
ger Co ., or any other person engaged in commerce,
where an object thereof is to force or require the Kroger
Co. to cease doing business with the Metropolitan Trust
Company and/or to force or require the Metropolitan
Trust Company to cease doing business with Rock Steel
Building Co. or any other person engaged in commerce.
Dated By ,
PLUMBERS,
STEAMFITTERS AND
PIPEFITTERS, LOCAL
No. 155
(Labor Organization),
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 746
Federal Office Building , 167 North Main Street, Memphis,
Tennessee 38103 , Telephone 901-534-3161.