Plumbers Union of Nassau County, Local 457

National Labor Relations Board - Board Decisions

Jun 22, 1961

131 N.L.R.B. 1243 (N.L.R.B. 1961)

PLUMBERS UNION OF NASSAU COUNTY, LOCAL 457 1243
CONCLUSIONS OF LAW
1. Sterling Precision Corp., Instrument Division , is, and at all material times has
been , an employer within the meaning of Section 2(2) of the Act.
2. Local 463, International Union of Electrical , Radio and Machine Workers,
AFL-CIO, is, and at all material times has been , a labor organization within the
meaning of Section 2 (5) of the Act.
3. By threatening its employees with economic reprisals if they refuse to authorize
the Respondent to deduct dues or intitiation fees from their wages and remit such
funds to Local 463, International Union of Electrical, Radio and Machine Workers,
AFL-CIO, thereby contributing illegal assistance and support to the said labor
organization , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (2) of the Act.
4. By the conduct described above , thereby interfering with , restraining, and
coercing its employees in the exercise of rights guaranted in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (1) of the Act.
5. The above-described unfair labor practices tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce , and constitute unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
6. The General Counsel has failed to establish by a fair preponderance of the
evidence that the Respondent violated the Act by entering into or enforcing the
contract between the Respondent and the above -named labor organization, de-
scribed above, or by engaging in discriminatory or illegal hiring practices.
[Recommendations omitted from publication.]
Plumbers Union of Nassau County, Local 457, United Associa-
tion of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-
CIO and Jerry Bady, d/b/a Bomat Plumbing and Heating.
Case No. 2-CC-557. June 22, 1961
DECISION AND ORDER
On August 30, 1960, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled'proceeding, finding that
the Respondent had not engaged in unfair labor practices and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter
the General Counsel and the Charging Party filed exceptions to the
Intermediate Report and briefs in support thereof; the Respondent
filed a brief in support of the Intermediate Report.
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 In-
termediate Report, the exceptions and briefs, and the entire record
in the case,' and finds merit in certain of the exceptions. Accordingly,
the Board adopts the findings of the Trial Examiner only to the ex-
tent that they are consistent with the following :
1 The Respondent has requested oral argument The request is denied as the record,
Including the exceptions and briefs, adequately presents the issues and the positions of
the parties.
131 NLRB No. 151.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Searington Associates, Inc., and Shelter Rock Tennis Club, Inc.,
herein jointly called Shelter Rock, are building a tennis club and
other recreational facilities for members. Shelter Rock is acting as its
own general contractor for the project and is subcontracting out the
various aspects of the work. Among the subcontractors is the Charg-
ing Party, Jerry Bady, d/b/a Bomat Plumbing and Heating, herein
called Bady, who has a contract for the performance of certain plumb-
ing work. Bady's contract provides that he shall be compensated at a
fixed rate for each man-hour worked, and for the cost of materials to
which shall be added a certain percentage for overhead and profit.
This contract also provides that labor supplied by Bady shall be non-
union. The latter provision was unknown to the Respondent until
the time of the hearing in this case.
Soon after Bady started work on the project at the end of March
1960, Respondent's business agent, Mullen, appeared on the job, pro-
tested to Bady about the employment of nonunion plumbers, spoke
to the plumbers working suggesting that they join the Union, and,
receiving no encouragement, threatened to "pull" the rest of the men
off the job. Mullen also threatened Bady and Shelter Rock's presi-
dent, Rodriquez, that he would have union tradesmen working at the
project "pulled" off the job unless nonunion plumbers were removed
or an arrangement was made to put some union plumbers to work.
Some of these representations by Mullen took place in the presence of
representatives of other building craft unions having members work-
ing on the project, and of other subcontractors.' One of these neutral
employers told Bady, in the presence of Mullen, that if Bady did not
get his difficulties straightened out, Mullen was going to "pull" them
off the job. Bady adamantly resisted all efforts to persuade or pres-
sure him to employ union plumbers, insisting that he had a contract
and would finish the job with his own men.
On March 30, 1960, before the start of any picketing, and without
explanation, most of the craftsmen employed by neutral contractors
on the project walked off the job. On the following day, a picket
started carrying a sign in front of the only entrance to the project
stating that the plumbing contractor on the job employed nonunion
plumbers and did not have a contract with the Respondent. Some-
time later the picket sign was changed so as to inform the public that
members of the Respondent were not employed on the job.
In the meantime, Bady filed unfair labor practice charges against
the Respondent, and the Regional Director issued a complaint and
a At a meeting of union representatives and contractors working on the project, occa-
sioned by the dispute with Bady , Shelter Rock's president asked Mullen what was going
on Mullen replied, "You don't have a union plumber ; you can't work like this You
must have union plumbers on the job . . . . You have to get a union plumber or we will
stop the job ." The General Counsel asserts that by "union plumber" Mullen meant
"union plumbing contractor." This appears to be a reasonable interpretation of Mullen's
statement and we adopt it.
PLUMBERS UNION OF NASSAU COUNTY, LOCAL 457 1245
filed an application for a Section 10 (1) injunction with the Federal
district court. In an attempt to work out an amicable adjustment
pursuant to the suggestion of the district court judge, Respondent
proposed that the matter be settled by Bady employing union plum-
bers to do part of the work. Shelter Rock said it considered the
proposal fair and would urge Bady to accept it if the pickets were
removed. Bady rejected the proposed settlement stating to Shelter
Rock's president that if his men did not want to join Respondent, he
could not force them to. Pursuant to an understanding between Re-
spondent and Shelter Rock, the pickets were removed on April 4, and
unionized craftsmen employed by neutral employers returned to work.
Thereafter Shelter Rock informed Bady that the finished plumbing
work would be done by union labor, either employed by Bady or by
other contractors at Bady's option.
Trial Examiner's Findings
The complaint alleged that Respondent had violated Section 8(b)
(4) (i) and (ii) (B) of the Act by the foregoing conduct. The Trial
Examiner recommended that no finding of violation be made and no
remedial order be issued because of the nonunion clause in Bady's
contract. In any event, he found no violation because "the project at
which the Respondent's action occurred constituted a primary situs
at which the Respondent could lawfully picket and induce action by
employees and employers in connection with the controversy."
Discussion
We disagree with the Trial Examiner on both counts.
We assume for the purpose of discussion that the nonunion hiring
clause in Bady's contract with Shelter Rock is unlawful under Section
8(a) (3) and (1) of the Act 3 Nevertheless we do not agree with the
Trial Examiner that this illegal conduct on the part of the Charging
Party excused illegal conduct by Respondent. As stated by the Court
of Appeals for the Fifth Circuit : 4
No matter how legally unfair the primary employer's conduct
may be, the union may not use the weapon, either in retaliation or
defense, of a proscribed 8(b) (4) (A) and (B) picket line.
3 At the hearing Bady offered to prove, with the concurrence of the General Counsel,
that the above clause was inserted in the contract because his rate of charge is based on
the use of nonunion labor, and because he desired to notify the general contractor of his
nonunion status as some general contractors will not employ subcontractors who use
nonunion labor The Trial Examiner refused to receive evidence in support of the offer
because: ( 1) The language of the contract was unambiguous and therefore parol evidence
was inadmissible ; and (2 ) the offer came too late as both parties had already rested
although the hearing had not been closed We find that the Trial Examiner 's ruling was
not prejudicial in view of our finding infra, that, even assuming arguendo that the non-
union hiring clause was unlawful it would not excuse Respondent ' s own unfair labor
practices or make a remedial order unnecessary.
4 Superior Derrick Corp. v N L.R.B., 273 F. 2d 891, 893.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner acknowledges that "unclean hands" are not a
defense to allegations of, unfair labor practices and that the commis-
sion of unfair labor practices does not privilege the victim to reply
in kind.' Nevertheless, the Trial Examiner finds that these "salutary
principles" are inapplicable in this case because what is involved is
Bady's effort to use the processes of the Act to maintain practices in
violation of it. The Trial Examiner apparently believes that if the
Board were to find Respondent guilty of unfair labor practices and
issue the usual remedial order, it would perpetuate the alleged illegal
hiring practices contained in Bady's contract with Shelter Rock.
This is to misapprehend the nature of any order that might be issued
to remedy the unfair labor practice in this case. A remedial order
in an 8(b) (4) (B) case does not require adherence to terms of a con-
tract; the Board is not concerned with private or contract rights.
Such an order only restrains a union from engaging in certain con-
duct whose object is, in the words of the statute, to force or require
"any person to cease . . . doing business with any other person, or
forcing ... any other employer to recognize or bargain with a labor
organization as the representative of his employees. . . .", "Doing
business" as used in the statute does not mean according to the con-
tract terms, certainly not if the contract contains illegal provisions.
The Trial Examiner is therefore in error in asserting that the re-
quested remedial order would perpetuate the existing alleged illegal
hiring practices.
The present case is no different from any other case in which the
respondent as a defense to its own unfair labor practices asserts that
the charging party has also been guilty of unfair labor practices, or
even • that its own unlawful conduct was undertaken with a view to
forcing correction of unfair labor practices by the charging party.'
One unfair labor practice does not excuse another. If a respondent
believes that a charging party is guilty of unfair labor practices, the
proper procedure is for the respondent to file unfair labor practice
charges against the charging party and not to resort to unfair labor
practices in justification or excuse.' Accordingly, we reject the Trial
Examiner's recommendation that no remedial order issue in this case
5National Organization of Masters , Mates and Pilots o f America, Inc ., AFL-CIO, at al
(J W Banta Towing Company ), 116 NLRB 1787 , 1796-1797, set aside on other grounds
253 F 2d 66 ( C.A. 7) ; Local # 1150, United Electrical, Radio d Machine Workers of
America, etc ( Cory Corporation), 84 NLRB 972 , 979; Superior Derrick Corp v. N L.R B.,
supra
U However, it should be emphasized that in this case Respondent was not aware of the
alleged illegal hiring clause until the hearing and therefore could not have undertaken its
course of illegal secondary action in order to force correction of the alleged illegal hiring
contract clause In view of the fact that we are holding that the alleged illegal hiring
clause is not available to Respondent as a defense , we do not pass upon the materiality
or legal effect of Respondent 's lack of knowledge of the existence of the clause.
7In the present case , we note that under the 6-month statute of limitations , Respond-
ent had ample time after discovering Bady's alleged unfair labor practices at the hearing
to file unfair labor practice charges against him.
PLUMBERS UNION OF NASSAU COUNTY, LOCAL 457 1247
because it would somehow not effectuate the policies of the Act to
do so."
As stated, the Trial Examiner has also held that no unfair labor
practices were committed because Shelter Rock and Bady were allies,
the construction site was a primary and not mixed situs, and the picket-
ing therefore did not have to conform with the Moore Dry Dock'
criteria.
We do not agree with this factual and legal analysis. As we view
the case, it represents a rather typical secondary boycott situation
in the building trades. Respondent had a dispute with Plumbing
Contractor Bady over the employment of nonunion plumbers. Bady's
employees declined to join Respondent and Bady refused to replace
all or some of them with union plumbers. Respondent then threatened
to have union craftsmen employed by neutral employers "pulled" from
the job unless its demands were met. After Bady proved adamant
in resisting Respondent's demands, unionized employees of secondary
employers simultaneously and suddenly walked off, shutting down
the job. This work stoppage by employees of neutrals occurred before
the start of any picketing. When the employer of Bady, Shelter
Rock, agreed with Respondent to give to unionized plumbers part of
the plumbing work for which Bady had the contract, Respondent
promised in return to remove the pickets. Shelter Rock and Respond-
ent adhered to their agreement, the pickets were removed and em-
ployees of neutral employers returned to work. Thus Respondent
achieved its obejctive.
As previously stated, employees of neutral employers working on
the jobsite quit work before any pickets appeared at the project.
There is no direct evidence indicating that Respondent was responsible
for the work stoppage. However, the circumstantial evidence points
in that direction. First, there are the numerous threats by Respond-
ent's agent, Mullen, made in the presence of and with the silent acqui-
escence of representatives of other unions, that unionized craftsmen
would be "pulled" from the job unless a satisfactory settlement with
Bady was reached. Second, there is the well-known close coopera-
tion among unions and unionized employees in the building trades.
Third, there is absence of any evidence that employees of neutral
employers had grievances against their own employers. Finally, the
sudden and simultaneous walkout by different craftsmen employed by
different employers indicates that the work stoppage was "triggered"
by some central source. We believe that Mullen accurately represented
s Although asserting that he is not applying the "clean hands" doctrine in this case,
the Trial Examiner inconsistently states that if any of the neutral employers had peti-
tioned the Board for relief from secondary pressures he would be entitled to it, even
though a collateral effect of such relief might be to aid Bady's unfair labor practices.
Granting or withholding relief on the basis of who files the unfair labor practice charge
is, it seems to us , a clear application of a "clean hands " doctrine.
9 Moore Dry Dock Company, 92 NLRB 547.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his own power and did the "triggering ." It is also to be noted that,
after Respondent had reached an accord with Shelter Rock and ceased
its picketing as promised , the employees returned to work . Accord-
ingly, we find that Respondent induced or encouraged employees of
neutral employers at the Shelter Rock project to engage in a strike
or a refusal to perform services . Moreover, we also find that the
picketing had the same calculated effect. This was a mixed situs
situation . Employees of neutral contractors as well as of Bady were
working at the project . 10 The Board has held that in this sort of
situation , picketing to be lawful must conform with the Moore Dry
Dock 31 standards . Among these is that the picketing must clearly
disclose that the dispute is only with the primary employer. In the
instant case the signs never clearly identified Bady as the contractor
against whom the picketing was aimed.12
Mullen also directly threatened Shelter Rock's president that he
would have the job stopped unless nonunion plumbers were removed.
He made similar representations to Bady. Some of these representa-
tions were made in the presence of neutral employers working on the
project . In fact , one of these neutral employers told Bady in Mullen's
presence that the latter was going to "pull " them off the job unless the
dispute with Bady was resolved . We find that by these statements to
neutral employers , Respondent "threaten [ed], coerce [d] or re-
strain [ed]" them within the meaning of Section 8(b) (4) (ii) of the
Act.13
We further find that objects of the aforesaid conduct were to force
or require ( a) Shelter Rock and other employers working on the
' There is no evidence as to whether Shelter Rock had any employees working on the
project at this time.
11 Moore Dry Dock Company , 92 NLRB 547.
13 As set forth above, the picketing was effective in preventing employees of neutral
employers from returning to work. This was in conformance with Mullen 's previous
threat to force a work stoppage at the project unless his demands upon Bady were satisfied
The Trial Examiner found that Shelter Rock was an "ally" of Bady. We do not agree.
The "ally" doctrine has been applied to situations where a secondary employer under-
takes to do struck work for the primary employer. Douds v. Metropolitan Federation of
Architects , Engineers, Chemists and Technicians , Local 331 (Project Engineering Com-
pany ), 75 F. Supp. 672 (D C N.Y.) ; N.L.R.B v. Business Machine and Office Appliance
Mechanics Conference Board, Local 459, International Union of Electrical , Radio &
Machine Workers , CIO (Royal Typewriter Co ), 228 F. 2d 553 (C.A. 2). In the present
case, not only did Shelter Rock not undertake to assist Bady in doing the disputed
plumbing work, but it actively cooperated with Respondent in reaching a settlement con-
trary to Bady' s wishes. Moreover , even assuming that Shelter Rock was an "ally" of
Bady, this would not excuse the inducement of employees of indubitably neutral em-
ployers either to stop work or to refrain from returning to work
13 Respondent contends that Shelter Rock is engaged in a localized endeavor and not
"in commerce or in an industry affecting commerce" and therefore that threats to it are
not within the scope of 8(b ) (4) (ii). We do not agree Sheet Metal Workers Inter-
national Association, Local Union No. 299, AFL-CIO, et at. ( S. M. Kssner and Sons),
131 NLRB 1465. In any event, it is clear that the various building subcontractors on
the project to whom similar threats were made are "engaged in commerce or in an industry
affecting commerce" within the meaning of 8(b ) ( 4) (ii). Sheet Metal Workers Inter-
national Association, Local Union No 299 , AFL-CIO, et at (S. M Sinner and Sons),
supra.
PLUMBERS UNION OF NASSAU COUNTY, LOCAL 457 1249
Shelter Rock project to cease doing business with Bady and with each
other, (b) customers, suppliers, and truckers of materials to and from
neutral persons performing work at the Shelter Rock project to cease
doing business with such neutral persons,'' and (c) Bady to recog-
nize or bargain with Respondent as the representative of Bady's em-
ployees although Respondent has never been certified as the repre-
sentative of such employees.
Accordingly, we find that by the foregoing Respondent violated
Section 8 (b) (4) (i) and (ii) (B) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth above, have a close, inti-
mate, and substantial relation 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.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act.15
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Jerry Bady, d/b/a Bomat Plumbing and Heating, is engaged in
commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Plumbers Union of Nassau County, Local 457, United Associa-
tion of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO, is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
3. By engaging in, or inducing or encouraging individuals employed
by persons engaged in commerce or in an industry affecting com-
merce to engage in, a strike or a refusal to perform services, and by
threatening, coercing, or restraining persons engaged in commerce or
in an industry affecting commerce with objects of (a) forcing or re-
quiring Shelter Rock and other employers working on the Shelter
Rock project to cease doing business with Jerry Bady, d/b/a Bomat
14 Local 691 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, et at. (Morgan Drive-Away, Inc.), 121 NLRB 1039, 1040, enfd.
270 F. 2d 696 (C.A. 7) ; Journeymen Barbers, Hairdressers , Cosmetologists and Proprietors
International Union of America , AFL-CIO (Chicago and Illinois Hairdressers Associa-
tion ), 120 NLRB 936, 940.
15 See Enterprise Association , Local 638 , United Association of Journeymen and Appren-
tices of the Plumbing and Pipe fitting Industry of the United States and Canada, AFL-
CIO (Bomat Plumbing and Heating ), 129 NLRB 555.
599198-62-vol. 131-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbing and Heating, and with each other, and customers, suppliers,
and truckers of materials to and from neutral persons performing
work at the Shelter Rock project to cease doing business with such
persons, and (b) forcing or requiring Bady to recognize or bargain
with Respondent as the representative of Bady's employees although
Respondent has never been certified as the representative of such em-
ployees under the provisions of Section 9, Respondent has violated
Section 8(b) (4) (i) and (ii) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in the 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, Plumbers
Union of Nassau County, Local 457, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO, its officers, representatives,
agents, successors, and assigns, shall :
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging the employees of
persons other than Jerry Bady, d/b/a Bomat Plumbing and Heating,
engaged in construction work at the Shelter Rock Tennis Club site,
Nassau County, New York, 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 any services, with an object of forcing or re-
quiring such persons to cease doing business with Jerry Bady, d/b/a
Bomat Plumbing and Heating, and with other persons engaged in
construction work at the Shelter Rock Tennis Club site, or to force and
require customers, suppliers, and truckers of materials to and from
neutral persons performing work at the Shelter Rock Tennis Club site
to cease doing business with such persons, or to force and require Jerry
Bady, d/b/a Bomat Plumbing and Heating, to recognize or bargain
with Respondent as the representative of Bady's employees, unless
Respondent has been certified as the representative of such employees
under the provisions of Section 9 of the Act.
(b) Threatening, coercing, or restraining any person other than
Jerry Bady, d/b/a Bomat Plumbing and Heating, engaged in con-
struction work at the Shelter Rock Tennis Club site, Nassau County,
New York, with an object of forcing or requiring such person to cease
doing business with Jerry Bady, d/b/a Bomat Plumbing and Heating,
and with other persons engaged in construction work at the Shelter
Rock Tennis Club site, or to force and require customers, suppliers,
and truckers of materials to and from neutral persons performing
PLUMBERS UNION OF NASSAU COUNTY, LOCAL 457 1251
work at the Shelter Rock Tennis Club site to cease doing business with
such persons, or to force and require Jerry Bady, d/b/a Bomat Plumb-
ing and Heating, to recognize or bargain with Respondent as the rep-
resentative of Bady's employees, unless Respondent has been certified
as the representative of such employees under the provisions of Section
9 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in Respondent's business offices and meeting halls, copies
of the notice attached hereto marked "Appendix A." 16 Copies of
said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by an official representative of
Respondent, be posted by Respondent immediately upon receipt there-
of, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Furnish to the Regional Director for the Second Region signed
copies of the aforementioned notice for posting by Jerry Bady, d/b/a
Bomat Plumbing and Heating, if the employer is willing, in places
where notices to employees are customarily posted. Copies of said
notice, to be furnished by the Regional Director, shall, after being
signed by Respondent as indicated, be forthwith returned to the Re-
gional Director for disposition by him.
(c) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Decision and Order, what steps
have been taken to comply herewith.
CHAIRMAN MCCULLOCH AND MEMBER BROWN took no part in the
consideration of the above Decision and Order.
19 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."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF JERRY
BADY, D/B/A BOMAT PLUMBING AND HEATING
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
WE WILL NOT engage in, or induce or encourage the employees
of persons other than Jerry Bady, d/b/a Bomat Plumbing and
Heating, engaged in construction work at the Shelter Rock Ten-
nis Club site, Nassau County, New. York, to engage in, a strike or
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any services,
with an object of forcing or requiring such persons to cease doing
business with Jerry Bady, d/b/a Bomat Plumbing and Heating,
and with other persons engaged in construction work at the Shel-
ter Rock Tennis Club site, or to force and require customers, sup-
pliers, and truckers of materials to and from neutral persons per-
forming work at the Shelter Rock Tennis Club site to cease doing
business with such persons, or to force and require Jerry Bady,
d/b/a Bomat Plumbing and Heating, to recognize or bargain with
Respondent as the representative of Bady's employees, unless we
have been certified as the representative of such employees under
the provisions of Section 9 of the Act.
WE WILL NOT threaten, coerce, or restrain any person other than
Jerry Bady, d/b/a Bomat Plumbing and Heating, engaged in
construction work at the Shelter Rock Tennis Club site, Nassau
County, New York, with an object of forcing or requiring such
person to cease doing business with Jerry Bady, d/b/a Bomat
Plumbing and Heating, and with other persons engaged in con-
struction work at the Shelter Rock Tennis Club site, or to force
and require customers, suppliers, and truckers of materials to and
from neutral persons performing work at the Shelter Rock Ten-
nis Club site to cease doing business with such persons, or to force
and require Jerry Bady, d/b/a Bomat Plumbing and Heating, to
recognize or bargain with us as the representative of Bady's em-
ployees, unless we have been certified as the representative of such
employees under the provisions of Section 9 of the Act.
PLUMBERS UNION OF NASSAU COUNTY,
LOCAL 457, UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUSTRY
OF THE UNITED STATES AND 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on March 28, 1960, by Jerry Bady, d/b/a Bomat Plumb-
ing and Heating , herein called Bomat , the General Counsel of the Board issued a
complaint on April 7, 1960, against Plumbers Union of Nassau County, Local 457,
PLUMBERS UNION OF NASSAU COUNTY, LOCAL 457 1253
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO, herein called the Respondent.
The complaint alleged that the Respondent violated Section 8(b) (4) (i) and
(ii) (B) of the Act in that it restrained and coerced various subcontractors engaged
in construction work at the Shelter Rock Tennis Club site of Searington Associates,
and by picketing and other means induced employees of the subcontractors and
other persons to refuse to perform services for their employers; the object being to
require Bomat to recognize and bargain with Respondent, though the Respondent
was not the certified bargaining representative of Bomat's employees, and to force
the various subcontractors and other persons to cease doing business with Bomat or
with each other.
The Respondent duly filed its answer denying the commission of unfair labor
practices.
On May 16, 17, and 18, 1960, a hearing was held upon due notice in New York,
New York, before the duly designated Trial Examiner. All parties were represented
by counsel and were afforded full opportunity to introduce and to meet material
evidence, to argue orally, and to submit briefs and proposed findings. The hearing
was adjourned on May 18, 1960, pending a stipulation between the parties respecting
commerce. On June 3, 1960, the parties filed a written stipulation establishing that
Bomat is engaged in commerce within the meaning of the Act. On the same day
the Trial Examiner issued an order receiving the stipulation in evidence, closing
the record, and setting time for filing briefs.
On July 8 the Respondent, and on July 11 the General Counsel and Bomat, filed
briefs which have been considered.
Upon the basis of the entire record in the case, and after consideration of all the
material evidence and contentions, including observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF BOMAT
Jerry Bady is an individual proprietor doing business under the trade name and
style of Bomat Plumbing and Heating.
Bomat is a plumbing contractor maintaining its principal office and place of busi-
ness at 112-46 Springfield Boulevard, Queens Village, in the city and State of New
York.
During the year 1959 Bomat, in the course and conduct of its business operations,
caused to be purchased, transferred, and delivered to it pipes, boilers, and other
goods and materials valued at in excess of $90,000, of which in excess of $50,000
worth originated outside the State of New York.
The parties stipulated that Bomat is an employer and person engaged in commerce
within the meaning of Section 2(6) and (7) and 8(b)(4) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Plumbers Union of Nassau County, Local 457, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
The case involves construction work on the property of Searington Associates,
Inc., and Shelter Rock Tennis Club, Inc., in Nassau County, New York. For the
purposes of this proceeding Searington and Shelter Rock, though separate corpora-
tions, are to be considered as one enterprise. Searington is a membership corpo-
ration organized to provide recreational facilities, primarily swimming and tennis,
in Nassau County. It has 300 members, each of whom has contributed $1,500 to
and each of whom owns a one three-hundredths stock interest in Searington and in
Shelter Rock. Jerry Bady, owner of Bomat, the Charging Party here, is a member.
The case involves the construction of these facilities. In connection therewith
Searington and/or Shelter Rock or their representatives on their behalf have entered
into written contracts with various contractors for construction services.
The principal persons referred to hereinafter in connection with the events are
Juan Rodriquez, president of Searington and Shelter Rock; Jerry Bady, owner of
Bomat; Harold W. Harrison, attorney for Searington and Shelter Rock; and Matthew
Mullen, a representative of Local 457, the Respondent.
Under date of January 28, 1960, Bomat executed a contract with Shelter Rock
whereby Bomat agreed to perform all plumbing, rough and finished, required at
1254 DECISIONS. OF -NATIONAL LABOR RELATIONS BOARD
Shelter Rock ; furnishing all necessary labor and materials in connection therewith.
.Among the provisions in the contract is-one to the effect that all labor provided
under the agreement shall be nonunion.'
In the latter part of March 1960, Bomat commenced work at the project. In
accordance with the contract, the plumbing labor supplied by Bomat was nonunion.
About March 28, 1960, Union Agent Mullen visited the jobsite and ascertained
that there were no union plumbers employed on the job. Mullen sought out Bady
and asked why this was so, saying, "You know it should be a union job." Bady
answered that he had "a job to do" and that he was "going to do it just that way,
with the men d had."
Mullen also spoke to Bomat's plumbers and suggested that they join the Union.
- Receiving no encouragement in this 'respect Mullen said that he had "45 men out of
work" and that he would have to "knock off" the job.
Within an-hour after their first conversation Business Agent Mullen again sought
out Contractor Bady and asked if they could not work out some arrangement to get
Bomat's nonunion plumbers off the job. Bady replied that he had a "contract obli-
gation" and would not do it. Mullen then told Bady that he would have to "take
measures," specifically that the union trades would be "pulled off" the job.
Mullen then talked to Juan Rodriguez, president of Searington and 'Shelter Rock.
Mullen told Rodriguez that there were no union plumbers on the job, said that
Rodriguez would have to get one or Mullen would stop the job, and asked Rodriguez
to intervene with Bady. Rodriguez then spoke to Bady, but without success. Bady
reiterated his refusal to hire any union plumbers.
On the following day Union Agent Mullen again appeared at the job and again
spoke to Contractor Bady, this time in the presence of one of Bady's lawyers. Mullen
suggested that Bady might have the job taken over by a union plumbing contractor
Bady refused. Mullen said that he was willing to be reasonable, that he would make
concessions, and that they should be able to work out a solution. Bady responded to
the effect that he was not interested, would abide by his contract, and would finish'
the job with his men.2 Mullen replied that he was going to have to exert pressure on
Bady, and the conversation terminated.
1 The terms of the contract, on the letterhead of Bomat, are as follow,
AGREEMENT
Shelter Rock Tennis Club, Inc.
------------------------------------------------------------
BOMAT PLUMBING & HEATING agrees to perform all the necessary labor and supply
all the necessary material required to complete new plumbing and heating systems
on the grounds of the Shelter Rock Tennis Club at North Hills, L I on the following
terms :
Labor
Mechanic at the rate of $7 25 per hour.
Helper at the rate of $3.25 per hour.
or Total for team of mechanic and helper-$10 50 per hour
All labor supplied by BOMAT PLUMBING & HEATING under this agreement shall
be non-union.
The above cost of labor includes all necessary supervision and transportation
of labor to the job site
Materials
Cost of materials to the Shelter Rock Tennis Club furnished by BoMAT
PLUMBING & HEATING under this agreement, shall be based on Bomat's cost
plus 10% for overhead and 10% additional for profit
BOMAT will submit bills monthly for labor and materials based on the above terms.
These bills shall be due and payable by Shelter Rock Tennis Club upon receipt of
same. Billing shall be only for the amount of labor and materials supplied on the
job prior to the date of billing
BOMAT PLUMBING & HEATING hereby unconditionally guarantees all work and
materials furnished by them, pursuant to this agreement, for a period of one year
from date of installation. However, this guarantee becomes effective only in the
event full payment is made to Bomat by the purchaser promptly and in accordance
with the terms of this agreement
BOMAT will secure all necessary plumbing permits required for work performed by
them, and also secure inspections and approvals for same
2 Thus.Bady testified that he -told Mullen : "I said I wasn't interested in working out
any kind of deals; that I had a contract with the Shelter Rock Tennis Club and I was
going to abide by that and finish the job with my own men."
PLUMBERS UNION OF NASSAU COUNTY, LOCAL 457 1255
Some of the above conversations occurred in the presence or, with the knowledge
of, union representatives of, or contractors employing , members of other construction
trades on the job. One of those employers told Bady on March 30 that if he did
not get the matter "straightened out" Mullen was going to "pull" them all off the job.
About noon on March 30 , 1960, most of the building tradesmen employed on the
project walked off the job. On the following day a picket for the Respondent
appeared at the only entrance to the jobsite, carrying the following sign:
TO THE
PUBLIC
THE PLUMBING
CONTRACTOR ON THIS
JOB EMPLOYS
NON-UNION PLUMBERS
& DOES NOT
HAVE A CONTRACT
WITH PLUMBERS LOCAL #457
Sometime thereafter the following sign was substituted:
TO THE
PUBLIC
MEMBERS OF
PLUMBERS
LOCAL 457
ARE NOT EMPLOYED
ON
THIS JOB
The union tradesmen employed on the project did not work during the picketing.
During the first 2 days of the picketing Bomat, at the request of Rodriguez, did not
work the job. However the picketing continued during that time.
In the meantime Bady had filed the unfair labor practice charges on March 28,
and on April 7 the complaint was issued. Upon the Regional Director's application
for an injunction again the Respondent the parties met in the district court before
Judge Matthew T. Abruzzo on April 13, 1960. Judge Abruzzo suggested that they
seek an amicable adjustment of their differences, and pursuant to that suggestion
discussions were undertaken.
In these discussions Union Agent Mullen proposed that one out of ' each three
plumbers on the job be a union plumber. As an alternative Mullen suggested that
Bomat complete the rough plumbing with nonunion labor, but employ union plumbers
to do the finish work. Mullen further stated that he would not ask Bady to sign a
union contract. President Rodriguez and Searington's attorney, Harold Harrison,
considered this a fair proposal. They told Mullen that they would urge Bady to
accept it if the pickets were removed. Mullen agreed. Rodriguez and Harrison
further said that if Bady did not accept one of the alternatives they would see to it
that union plumbers were hired to perform the finish work.
When Mullen's proposals were conveyed to Bady he rejected them.
Pursuant to the understanding between Mullen, Rodriguez, and Harrison the picket-
ing was discontinued on April 14 and apparently has not been resumed. The union
crafts returned to work on the following day, and on April 20, 1960, Searington in-
formed Bomat , by letter, that the finish plumbing work would be performed by
union labor, either by Bomat or by other contractors-at Bady's option. On April
25, 1960, Judge Abruzzo issued a temporary injunction.
The Respondent was not aware of the terms of Bomat's contract with Shelter Rock
at the time of Mullen's conversations with Bady. The Respondent first saw the con-
tract when it was produced at the hearing, on May 16.
Concluding Findings
It is clear that the Union was engaged in a controversy with Bomat, Searington,
and Shelter Rock as to whether union or nonunion plumbers should be employed on
the job; the Union first insisting that they should be union, later modifying its demands
to ask only that one-third of the plumbers be union, or in the alternative that union
and nonunion plumbers divide the work. Searington and Shelter Rock agreed to this
arrangement. However, Bomat refused to accept it, asserting its contract as justifica-
tion therefor.
The controversy arose because of the nonunion clause in Bomat's contract. Had
that not existed, some union plumbers might have been employed on the job from
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the beginning, and there would have been no problem. Additionally, were there no
such clause, Bomat could not have insisted upon its observance. The case therefore
arises solely because of Bomat's contract, its hiring practices, and its insistence upon
using nonunion plumbers exclusively and refusing to hire any union plumbers what-
ever. These practices have resulted in interruptions to commerce.
A more patent case of discrimination in employment violative of the statute would
be difficult to find. The Board is consequently being asked to exert its statutory pow-
ers to enforce a contract and practice contrary to the express terms of the Act. An
order is asked to be issued against the Respondent for having sought peacefully to
upset this illegal arrangement, and to prevent further interference with its maintenance.
I do not believe that findings of violation or the issuance of the requested order
compatible with the Act. I do not think the Board's processes are available to protect
what is, in essence, a species of "yellow-dog" contract. (Hitchman Coal and Coke
v. Mitchell, 245 U.S. 229.) For though Bomat's employees did not sign a com-
mittment to forgo employment if they become union members, Bomat and Shelter
Rock have done it for them. The contract forbids the employment of unionmen.
Its language is that all labor shall be nonunion. There is nothing permissive about
these words. But even if there were, Bomat would not allow them to be permis-
sively interpreted.3
It is found that Bomat's contract with Shelter Rock requires, and Bomat operated
thereunder, a closed nonunion shop on the Shelter Rock project; and that Bomat
refused to modify this arrangement, though requested to. It is further found that
upon proper complaint violations of Section 8(a)(3) and 8(a)(1) would have to
be found by reason of such conduct. The necessary effect of the agreement and
the hiring practice is to deter Bomat's plumbers from joining a union since they
will thereby be jeopardizing their employment. Under the circumstances the hiring
practice would unavoidably come to the attention of employees, Bomat's and others.
Bomat publicly stated his refusal to hire union men. As will be seen, the policy
ultimately resulted in employees ceasing work on the project.
The decisive question is whether the Board's process may be used in aid of Bomat's
charges. However, before discussing that problem several preliminary issues should
be disposed of.
The General Counsel and Bomat contend that the contract does not prohibit
the use of union labor, but merely gives Bomat "an option" whether to use union
labor or not. However, it has been seen that the contract specifically forbids the
employment of other than nonunion labor, and was so interpreted by Bomat. In
any event the contract is unlawful even if it only gives Bomat an option. The statute
allows employers no choice as to whether they will hire on the basis of union member-
8 After the parties had indicated that they had no further evidence to offer with regard
to the merits of the complaint, but before the close of the hearing, Bomat, supported by
the General Counsel, requested leave to reopen the proceedings to take the testimony of
Jerry Bady as to the intent of the nonunion clause of the contract. This testimony was
excluded on the grounds that (1) no substantial reason was advanced for not having previ-
ously offered the evidence; and (2) the language of the contract being unambiguous,
parol evidence as to its meaning was inadmissible In that connection the Board has
said that ". . . we will not accept parol evidence to establish modification of written
union security-agreements." Jersey Contracting Corp., 112 NLRB 660, 662 See also
Aurora Gasoline Company, 128 NLRB 37. In this regard the contract is to be considered
in the same category as a union-security agreement. The latter generally constitutes an
undertaking to require union membership as a condition of employment ; the present con-
tract is merely the obverse, requiring nonunion membership as a condition of employment.
Despite the ruling excluding parol evidence as to the intent of the contract clause, the
testimony of Mr. Bady in support thereof was nevertheless taken as an offer of proof in
question and answer form in accordance with the provisions of Rule 43(c) of the Federal
Rules of Civil Procedure. The testimony elicited thereby does not tend to refute the
meaning of the contract as reflected by its language The testimony, in sum, is that the
clause was inserted to protect Bomat from any possibility of having to hire unfonmen
in order to finish a job, and thus increase its labor costs. Such an intent does not alter
the meaning or effect of the language.
In any event, apart from this testimony, we have seen that Bomat interpreted the con-
tract to require discrimination. Thus when requested to hire some unfonmen , Bady re-
fused, bottoming his declination upon the fact that he had "a contract obligation" which
he would "abide by" and "finish the job with ( his own non-union] men "
The parol evidence offered, and Bomat's conduct do not tend to refute the essentially
discriminatory nature of the contract; on the contrary they underscore it.
PLUMBERS UNION OF NASSAU COUNTY, LOCAL 457 1257
ship or nonmembership; it forbids such kind of selection. Hence any contractual
"option" is contrary to the Act.
Bomat argues that the purpose of the arrangement was to save Bomat from the
necessity of having to pay union wage scales. That motive does not make the action
less invalid. In essence it is an argument that the discrimination must be permitted
because it enables Bomat to undersell contractors who use union labor.
The General Counsel and Bomat also contend that the contract cannot be a
defense because the Respondent did not know of it at the time of the Respondent's
action. Apparently neither the Respondent nor the General Counsel had seen or
was aware of the terms of the contract until it was produced at the instant hearing.
However, knowledge by the Respondent that the hiring policy which it was protest-
ing was also embodied in a written contract is not required. The policy was stated
and implemented orally by Bomat during the controversy. The Respondent was
made aware both by Bomat and Shelter Rock that Bomat was refusing to hire union
plumbers. This policy the Respondent protested and sought to checkmate. That
Mr. Bady did not also say, and that the Respondent did not know, that his position
had its inception in a written agreement is in the circumstances of no consequence.
It is therefore not correct to assert that Bomat's conduct was not the basis of the
Respondent's action.
We come now to the decisive issue.
The General Counsel and Bomat contend that it is immaterial whether Bomat's
actions which caused and prolonged the controversy are illegal and in violation of
the Act. The basis for this contention is that the "clean hands" doctrine is not a
defense to charges of unfair labor practices. The only proper course of action and
remedy for the Respondents, they say, is to file unfair labor charges.
Of course unclean hands are not a defense to unfair labor practice charges. And
unfair labor practices by -a charging party do not generally preclude the considera-
tion of his charges. The commission of unfair labor practices does not privilege the
victim to reply in kind. J. W. Banta Towing Company, Inc., 116 NLRB 1787,
order set aside 253 F. 2d 66 (C.A. 7); Local #1150, United Electrical, Radio &
Machine Workers of America, etc., et al., 84 NLRB 972; Superior Derrick Corp.
v. N.L.R.B., 273 F. 2d 891 (C.A. 5).
However these salutary principles are inapplicable here. More is involved than
Bomat 's unfair labor practices or its unclean hands. What is involved is Bomat's
effort to use the processes of the Act to maintain practices in violation of it. This
serves to distinguish the case from the authorities cited by the General Counsel and
Bomat.
That Bomat's conduct may constitute unfair labor practices which are remediable
in another proceeding does not make it irrelevant. A plea of self-defense is not
inadmissible because it might disclose the complainant guilty of assault. That con-
duct may be illegal does not exclude it from being pleaded and proved in defense.
Thus it is relevant to consider the unprotected nature of an employee's concerted
activity in determining the legitimacy of his discharge. This is so even though the
activities may not be intrinsically unlawful. Doyle W. Terry, d/b/a Terry Poultry
Company, et al., 109 NLRB 1097 (leaving place of work to present a grievance);
N.L.R.B. v. Local Union No. 1229, I.B.E.W., A.F.L. (Jefferson Standard Broadcast-
ing Company), 346 U.S. 464 (distributing handbills to the public attacking the
quality of the employer's product. It is equally a defense where the employee
conduct is illegal : Republic Steel Corporation v. N.L.R.B. 107 F. 2d 472 (C.A. 3)
violence and other criminal conduct in connection with a lawful strike); N.L.R.B. v.
Fansteel Metallurgical Corporation, 306 U.S. 240 (sitdown strikes).
An employer may refuse to bargain with a union during the duration of a strike
in violation of a no-strike clause in a bargaining contract (Dorsey Trailers, Inc.,
80 NLRB 478; United Elastic Corporation, 84 NLRB 768); and during a slowdown
(Phelps Dodge Copper Products Corporation, 101 NLRB 360). In the case of
Marathon Electric Mfg. Corp., 106 NLRB 1171, 1180, the Board found the refusal
of the employer to bargain with the charging and representative union during a
breach of contract strike not a violation of the Act because the union had, "for-
feited its bargaining rights until such a time as it notified the respondent that the
strike had been terminated." In the case of Bausch and Lomb Optical Company,
108 NLRB 1555, the fact that the charging union was engaged in a business com-
petitive to the respondent employer was found to constitute justification for the
employer to refuse to bargain with the union.
Numerous other cases of similar import could be cited. In all of them the conduct
of the respondents involved was held to be justified by the action, unlawful or
inappropriate, of the charging party.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In each such situation where the conduct of the employee or charging party was
unlawful the law provided a complete remedy , and in many cases was utilized.
Nevertheless the respondents were authorized to employ action which but for the
provocation would be violative of the Act. Because the actions of Bomat were
unlawful or that its hands were unclean does not therefore make that conduct im-
material to the case.
The Board has authority to interpret the Act in a manner compatible with its
underlying purposes and the public welfare . It is not compelled to adhere to
apparent absolutes where to do so would not be in harmony with objectives. Thus
in the Bausch and Lomb case, supra, the Board said, page 1156:
It is clearly the function of this Board to interpret the Act so as to give the
greatest possible effect to the Congressional purpose, as expressed in the "Decla-
ration of Policy," of prescribing the legitimate rights of employees , employers,
and labor organizations in their relations with each other, and of proscribing
practices on the part of labor as well as management that are inimical to the
general welfare and the public interest . In so doing , the Board has recognized
that "resort to the policy of the law may be had to ameliorate its seeming
harshness or to qualify its apparent absolutes.. " Thus, the Board has indi-
cated that where a particular section of the Act is subject to different possible
interpretations, it is the duty of the Board, as the administrative agency entrusted
with the enforcement of the public policy embodied in the Act, to follow what
it believes is the purpose and thereby effectuate the will of Congress.
The Board there held that a finding of refusal to bargain would be incompatible
with the purposes of the Act.
The Board is thus mindful of the caution of the Supreme Court that the Board
must not discharge its duties or exercise its authority,
. so single mindedly [as to] wholly ignore other and equally important
Congressional objectives. Frequently the entire scope of Congressional pur-
pose calls for careful accommodation of one statutory Scheme to another and
it is not too much to demand of an administrative body that it undertake the
accommodation 'without excessive emphasis upon its immediate task?
Manifestly, as the Board's approach in the Bausch and Lomb and other cases cited
above disclose, fundamental policies of the statute must be given primary effect.
Violations are therefore not to be found where to do so would contravene basic tenets
of the Act, or the effect be to shield from peaceful attack programs to whose extermi-
nation the Act is directed.
In my opinion to find a violation of the Act in the Respondent's conduct here,"
and to issue the requested remedial order, would be to perpetuate a condition of
affairs itself in derogation of law, would be contrary to the public interest, and is
consequently to be avoided. Dismissal is therefore recommended on that ground
alone. There is, however, additional reason for dismissal.
Apart from its power to interpret the Act in accordance with its fundamental
purposes, the Board is also vested with authority to examine the situation to deter-
mine whether the use of its processes in the particular case will accord with public
policy. Thus while misconduct of the charging party does not deprive the Board
of jurisdiction, it may properly be considered in determining whether to proceed.
The Board may decline to submit its processes to abuse, and may properly dismiss
charges related to a coercive course of conduct subversive of the statute or of other
public policies. N.L.R.B. v. Indiana & Michigan Electric Company, 318 U.S. 9.
And the Board has exercised this authority.
In the case of Vaughn Bowen, et al., 93 NLRB 1147, the Teamsters Union and the-
Retail Clerks Union were engaged in a jurisdictional dispute, in the course of which
the Teamsters picketed the employers involved to compel the hiring of Teamster
members. Several employers agreed to hire some Teamster members with the
understanding that they could be discharged upon the demand of the Clerks Union.
The individuals were hired, and discharged upon demand. They then filed unfair
labor practice charges. The Board refused to find violations of the Act for the reason
that to do so would constitute abuse of the Board's processes. The Board said (1153) :
we are satisfied that the Board's process has not here been invoked to
secure a remedy for violations of the Act, but for the sole purpose of getting
the Board to assist the Teamsters in its scheme, which had, as its ultimate
objective , forcing upon the Respondent Companies the employment of Teamster
members.
4 Southern Steamship Company v. N.L.R.B., 316 U.S. 31, 47.
PLUMBERS UNION OF NASSAU COUNTY, LOCAL 457 1259
This attempt to use the Board 's processes to further the cause of the Teamsters
in its jurisdictional conflict with the Respondent Union constitutes, in our
opinion , a palpable abuse of the Board 's machinery . The Board may, of course,
refuse to allow such advantage to be taken of it. In the words of the Supreme
Court, "It is not required by the statute to move on every charge; it is merely
enabled to do so. It may decline to be imposed upon or to submit its processes
to abuse." [N.L.R.B. v. Indiana & Michigan Electric Company, 318 U.S. 9.]
Under these circumstances we believe that it would serve the public interest to
dismiss the allegations of the complaint... .
It is therefore recommended that the complaint be dismissed for the additional
reason that attempt to use the Board 's processes here to further Bomat's unlawful
hiring practices constitutes palpable abuse of the Board 's machinery.
Manifestly the issuance of a Board order forbidding the Respondent from picket-
ing or otherwise attempting to influence action at the Searington project where the
illegal hiring policy is being pursued will have the effect of protecting that policy
from effective peaceful private attack. Action at Bomat's office where, so far as
the record discloses , no plumbing work is performed or plumbers employed, would
seem to be a waste of effort . True the Respondent could file its own unfair labor
practice charges. But until there was a final Board order supported by court decree,
or not longer subject to review , the unlawful practices would continue . As has been
previously suggested, the existence of procedures for judicial determination of the
illegality of conduct does not make peaceful self-help unlawful.
The foregoing features distinguish the case from the conventional situation where
improprieties of the charging party are sought to be interposed as a bar for account-
ability of acts otherwise in violation of the statute . In my opinion sustaining the
charges here would protect policies violative of the statute, encourage their perpetua-
tion , subvert the administration of the Act, and constitute abuse of its processes.
Manifestly this does not mean that wherever the charging party has engaged in
unlawful conduct reprisals become privileged . As the Supreme Court said in the
Fansteel case, reprehensible conduct does not make a respondent an outlaw or deprive
it of its legal rights. This observation is applicable to a charging party as well.
I mean to say no more than that Board processes are not available at the behest of
the creator of policies subversive of the statute to protect and maintain such practices.
This course also does not mean that the Respondent is free to pursue action in
derogation of the rights of innocent neutral employers. A purpose of Section
8(b) (4) is to protect such employers from embroilment in conflicts to which they
are not parties. Unfair labor practices of the disputants cannot deprive them of
their rights to be free of such involvement. If any of the neutral employers at this
project were petitioning the Board for relief from unlawful secondary pressures they
would unquestionably be entitled to it-even though a collateral effect of such relief
might be to aid Bomat's unfair labor practices. Such a result must be reckoned
an unavoidable cost in the balancing of conflicting objectives. On the other hand,
the Act is not available in aid of those who would subvert it, merely because an
effect might be to assist others who have indicated no desire for assistance. It seems
significant in the circumstances presented (though it is not so in all circumstances)
that none of the secondary employers here have filed charges; none appeared at the
hearing to complain of the Respondent's actions. The sole charger is Bomat, whose
unlawful action initiated and provoked the controversy, and whose persistence has
prolonged it.
It does not follow that because a purpose of Section 8(b) (4) is to protect secondary
employers that wherever such employers are involved in a controversy findings of
violation of Section 8(b)(4) must follow automatically. As the Supreme Court
said in the Southern Steamship case, supra, congressional objectives must be accom-
modated to each other. One section of the Act is not to be administered with single-
minded disregard of policies embraced in other and equally important portions.
When Bomat has indicated willingness to abide by the statute he will be eligible to
invoke its processes on his behalf if they are needed.
Upon the basis of the foregoing considerations it will be recommended that the
complaint be dismissed.
The Situs
The complaint must also be dismissed for another reason, namely, that the project
at which the Respondent's action occurred constituted a primary situs at which the
Respondent could lawfully picket and induce action by employees and employers in
connection with the controversy.
The project constituted Shelter Rock's and Searington's principal, and apparently
only, place of business . The premises were owned and operated by them . Shelter
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rock was a party to the contract and the hiring policy which gave rise to the labor
dispute. Shelter Rock is a mere instrumentality of Searington . Their premises was
the locale of and harbored the dispute.
Under such circumstances Searington and Shelter Rock were primary employers
as well as Bomat. The three were allies in the initiation of the policy which pre-
cipitated the controversy. The construction site was therefore a primary situs at
which the Respondent could lawfully picket and seek to induce action by others
in respect to the dispute . Ryan Construction Corporation, 85 NLRB 417 (overruled
in respects not here material in Crystal Palace Market, 116 NLRB 856; and in
Virginia -Carolina Chemical Corporation , 126 NLRB 905); Douds v. Federation,
75 F. 2d 672 (D.C.N.Y.).
So far as Searington and Shelter Rock were concerned , there was no other location
at which the Respondent could lawfully reach and effectively protest their manner
of operations . True they sought to induce Bomat to modify the policy of hiring
only nonunion plumbers on the project. But when Bomat refused Searington and
Shelter Rock did not exercise their unquestioned power to order the policy to be
terminated immediately . Had they done so there would have been no occasion for
further controversy . The Respondent confined its picketing to the situs of the dis-
pute. The picket signs clearly and truthfully advised the public of the nature of
the dispute . Since Searington and Shelter Rock were not mere contractors , and the
premises not a temporary location at which they were transiently doing business,
but instead was their principal and permanent base of operations , the project con-
stituted a primary and not a mixed or common situs. The picketing therefore did
not have to comply with the standards of the Moore Dry Dock case, 92 NLRB 547.
[Recommendations omitted from publication.]
Eddie Garofalo and Dress Makers Joint Council , International
Ladies' Garment Workers Union , AFL-CIO. Cases Nos. 2-CA
7612 and 2-CA-7612-3. June 22, 1961
DECISION AND ORDER
On March 9, 1961, 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 he cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner found
that the Respondent had not engaged in other alleged unfair labor
practices and recommended that such allegations be dismissed. There-
after, the General Counsel and the Respondent filed exceptions to the
Intermediate Report. A supporting brief was also filed by the Gen-
eral Counsel.
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
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
'In the absence of any exceptions thereto, we adopt pro forma the Trial Examiner's
conclusion that the record does not support the allegations of the complaint regarding
surveillance of a union meeting by the Respondent , or his solicitation of employees to
report to him any union activities.
131 NLRB No. 157.