Sheet Metal Workers International Association, Local No 104

National Labor Relations Board - Board Decisions

Mar 28, 1990

297 N.L.R.B. 1078 (N.L.R.B. 1990)

1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association,
Local No 104 and Losh International, Inc and
Danny Munoz and G & B Installations, Inc
Cases 32-CC-1231, 32-CB-3028, 32-CC-1256,
and 32-CB-3089
March 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 2, 1989, Administrative Law Judge
Richard J Boyce issued the attached decision The
Respondent filed exceptions and a supporting bnef
and the Acting General Counsel filed a bnef in re-
sponse to the Respondent's exceptions and in sup-
port of the judge's decision
The National Labor Relations Board has delegat
ed its authonty in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findmgs,2
'The Respondent contends that the finding of a violation involving
the disciplinary action against Danny Munoz should be dismissed on pro
cedural grounds Inasmuch as the General Counsel had full opportunity to
allege the violation during the initial heanng but chose not to do so and
Instead moved to reopen the record at a later date thereby necessitating
a 9 month delay and a new hearing We find no ment in this contention
The Munoz unfair labor practice charge was filed on July 25 1988 the
first day of heanng in the instant proceeding At that time the charge
filed against Munoz by a member of the Respondent had been heard by a
trial committee but no finding had yet been announced The trial corn
mittee finding and recommendation of a fine did not Issue until August 9
1988 and was not upheld by the membership until August 18 Thus at
the close of the instant unfair labor practice hearing on July 26 1988 the
General Counsel had knowledge only that a charge had been filed against
Munoz by a member of the Respondent and that an Internal trial had
been held on the charge—conduct that was arguably neutral See Cement
Workers D 357 (Southwestern Portland Cement) 288 NLRB 1156 (1988)
in which the Board stated that the respondent union may have had the
right and even the obligation to inquire preliminarily into the basis of a
member s charge against another member
Further the 9 month delay referred to by the Respondent was caused
by the filing of charges on November 15 1988 concerning the Respond
ent s disciplinary action against Kenneth Gordy on October 21 1988 As
more fully set forth in the judge s decision the judge granted the General
Counsel s motion to postpone resumption of the heanng to give the Gen
eral Counsel time to investigate the Gordy charges and after issuance of
the complaint granted the General Counsel s motion to consolidate the
complaints on March 8 1989 The hearing resumed on April 18 1989
This procedure was appropriate as the cases Involved the same parties
and factually related events See eg S E Nichols Inc 284 NLRB 556
fn 1(1987) and Peyton Packing Co 129 NLRB 1358 1360 (1961)
2 In adopting the judge s conclusion that the Respondent violated Sec
8(b)(4)(1) and (i1)(B) and Sec 8(b)(IXA) by bnnging disciplinary charges
against and fining Danny Munoz we do not rely on his characterization
of the charges as altogether technical and petty We do rely howev
er on the other reasons advanced by the judge for finding the Respond
ent s conduct unlawful In this regard we find that the record supports
the judge s conclusion that the Respondent generally Imposed smaller
fines for similar charges than the fine of $1664 16 (with $1000 suspended
for a 3 year probationary period) Imposed on Munoz Of the 23 docu
mented initial fines produced by the Respondent only 5 were in the same
range as that Imposed on Munoz i e $1500 or more (R Exhs 11 13
11 14 11 20 11 25 and 11 27) In each Instance the charged member did
and conclusions and to adopt the recommended
Order3 as modified
The judge found, and we agree, that the Re
spondent violated Section 8(b)(4)(n)(B) by bringing
disciplinary charges against and fining Kenneth
Gordy in furtherance of its dispute with Losh
International, Inc (Losh) We disagree, however,
with the judge's conclusion that this conduct also
violated Section 8(b)(1)(A) of the Act
Kenneth Gordy is the president of G & B Instal
lations, Inc (G & B) He is also a member of the
Respondent As more fully set forth in the judge's
decision, the Respondent brought disciplinary
charges against and fined Gordy for giving alleged
ly false testimony against a union officer in a Board
proceedmg
The judge found that the Respondent's conduct
violated Section 8(b)(1)(A) even though it was di-
rected against G & B's president, not an employee
within the meaning of the Act In reaching this
conclusion, the judge relied on Orkin Exterminat-
ing Co 4 and Amason Inc ,5 in which the Board
found that employers violated Section 8(a)(1) by
discharging supervisors for giving testimony to the
Board The judge noted that in Slate Workers Local
666 (Sierra Employers Assn ),6 the Board refused to
find a union violated Section 8(b)(1)(A) by taking
action against an employer association for filing
charges with the Board, but he suggested that
Sierra Employers Assn was wrongly decided to the
extent that it decreed that a violation of Section
8(b)(1)(A) could not be found in the mstant case
We reject the judge's analysis of this issue and
adhere to the Board's reasoning in Sierra Employers
Assn There, the Board stressed that the language
of Section 8(b)(1)(A) refers to 'employees" and
that the nghts protected by that section of the Act
are those of employees only Although the Board
recognized the importance of the nght to file
charges or give testimony under the Act, it found
that "The importance of this right however,
does not permit the Board to transfer this right to a
class of legal persons [employers and their repre
sentatives] for whom there is no evidence that con
gress intended it " 7 Noting that there were other
sections of the Act that more appropnately ad-
dressed the union's conduct, the Board concluded
something more than Munoz had done such as continuing to work over
time without a permit after receiving notice
3 Interest shall be computed in the manner prescribed in New Horizons
for the Retarded 283 NLRB 1173 (1987)
4 270 NLRB 404 (1984)
6 269 NLRB 750 (1984) enfd mem 758 F 2d 648 (4th Or 1985)
6 267 NLRB 601 (1983)
7 267 NLRB at 602
297 NLRB No 179
SHEET METAL WORKERS LOCAL 104 (LOSLI INTERNATIONAL) 1079
[P]rotection of employers or their representa-
tives under a provision, i e Section 8(b)(1)(A),
which is plainly directed to protecting employ-
ees, equates unlikes, as to which considerations
are necessarily different We think the likely
outcome of such an equation is an unwarrant-
ed expansion of the original scope of the pro-
tection Congress provided 8
For the same reasons, we decline to expand the
scope of Section 8(b)(1)(A) to reach the Respond-
ent's disciplinary actions against G & B's president,
Kenneth Gordy We find that such an expansion is
especially unwarranted here, where the Respond-
ent's conduct is clearly within the scope of Section
8(b)(4) and properly has been found to violate that
section of the Act 9
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 5
"5 The Respondent violated Section
8(b)(4)(n)(B) between October 24, 1988, and Janu-
ary 26, 1989, by bringing disciplinary charges
against and fining Gordy in furtherance of its dis-
pute with Losh "
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Sheet Metal Workers International Asso-
ciation, Local No 104, its officers, agents, and rep-
resentatives, shall take the action set forth in the
Order as modified
1 Delete paragraph 1(d) and reletter the remain-
ing paragraph
2 Substitute the attached notice for that of the
administrative law judge
9 267 NLRB at 603
9 Member Cracraft agrees that the Respondent's conduct toward Ken-
neth Gordy violated Sec 8(b)(4X11)(13) of the Act and finds It unneces-
sary to consider whether the Respondent's conduct also violated Sec
8(bXIXA) as the remedy would not be affected
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT induce or encourage any individ-
ual employed by any person engaged in commerce
or in an industry affecting commerce to engage in
a strike or refusal, in the course of his employment,
to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materi-
als, or commodities, or to refuse to perform any
other services, where an object thereof is to force
or require that person to cease doing business with
Losli International, Inc
WE WILL NOT threaten, coerce, or restrain any
person engaged in commerce or in an industry af-
fecting commerce, where an object thereof is to
force or require that person to cease doing business
with Losli International, Inc
WE WILL NOT charge, try, fine, or otherwise dis-
cipline Danny Munoz, Kenneth Gordy, or any
other member, either to induce or encourage him,
to withhold his services from a neutral employer,
or to threaten, coerce, or restrain him, with an
object of forcing or requiring the neutral employer
to cease doing business with a primary employer
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act
WE WILL rescind our disciplinary actions against
Danny Munoz and Kenneth Gordy, and expunge
from our records any reference to those actions,
and WE WILL notify Munoz and Gordy in writing
that these steps have been taken
WE WILL refund to Munoz and Gordy any
money held on account of the fines assessed them
in connection with the disciplinary actions, with
appropriate interest
SHEET METAL WORKERS INTERNA-
TIONAL ASSOCIATION, LOCAL NO 104
Ariel Sotolongo, Esq , for the General Counsel
Kathryn Sure, Esq (Wylie, McBride, Jesinger & Sure), of
San Jose, California, for the Respondent
Simao J Avila, Esq , of San Jose, California, for Losh
DECISION
STATEMENT OF THE CASE
RICHARD J BOYCE, Administrative Law Judge This
consolidated matter was tned in Oakland, California, on
July 25 and 26, 1988, and April 18, 1989
The complaint in Case 32-CC-1231 issued on May 19,
1988, based on a charge filed May 4 by Losh Interna-
tional, Inc (Losh) A trial on that complaint began on
July 25 and ended on the 26th
The charge in Case 32-CB-3028 meanwhile was filed
on July 25 by one Danny Munoz On September 15, I
granted a motion by counsel for the General Counsel
that Case 32-CB-3028 be consolidated with Case 32-
CC-1231, that the complaint eon which trial had been
held be amended to include specified allegations based
on the Munoz charge, and that the record be reopened
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to take evidence pertinent to the new allegations I set a
trial resumption date of December 6
The charges in Cases 32-CB-3089 and 32-CC-1256
were field on November 15 1988 by G & B Installa
tions Inc (G & B) On November 28, I granted a
motion by counsel for the General Counsel that the re
sumption be postponed to give the General Counsel time
to decide whether to issue a complaint in the latest cases
and to move for their consolidation with the prior ones
Such a complaint did issue on February 24 1989 and on
March 8 I granted the General Counsel s motion to con
sohdate specifying that the reopened trial shall be con
fined to the allegations pertaining to 32-CB-3028 32-
CB-3089 and 32-CC-1256
I ISSUES
The issues are whether Sheet Metal Workers Interna
tional Association Local No 104 (Respondent) violated
Section 8(b)(4)(1) and/or (u)(B) of the National Labor
Relations Act (Act) on about January 5 March 10 April
5, May 5 and 6 1988 by the conduct of certain officials
in furtherance of a primary dispute with Losh wheth
er it violated Section 8(b)(4)(0 and/or (u)(B) and Section
8(b)(1)(A) between about May 24 and August 19 1988
by conduct relating to internal disciplinary proceedings
against Munoz a G & B employee, allegedly in support
of that primary dispute and whether it violated Section
8(b)(4)(u)(B) and Section 8(b)(1)(A) between about Octo
ber 24 1988 and January 26, 1989 by conduct incidental
to disciplinary proceedings against G & B s president
Kenneth Gordy, allegedly in aid of the dispute with
Losli 1
Respondent admits having a primary dispute with
Losh at relevant times and that it did not have a dispute
with G & B or any other person
II JURISDICTION
Losh manufactures commercial kitchen equipment in
Tigard Oregon G & B, located in Riverside California
Installs kitchen equipment Losh and G & B marguably
are persons within the applicable provisions of the
Act engaged in and affecting commerce within the
meaning of Section 2(6) and (7) G & B also is an em
ployer within the meaning of Section 2(2)
'Sec 8(b)(4) states in relevant part that It shall be an unfair labor
practice for a labor organization or its agents— (I) to engage in or to
Induce or encourage any individual employed by any person engaged in
commerce or in an Industry affecting commerce to engage in a stnke or
a refusal in the course of his employment to perform any services or
(n) to threaten coerce or restrain any [such] person where in either
case an object there of is (B) forcing or requiring any person to
cease doing business with any other person
Sec 8(b)(1)(A) makes It an unfair labor practice for a labor organiza
lion to restrain or coerce employees in the exercise of the nghts
guaranteed in Section 7 of the Act Sec 7 bestows upon employees the
nght to self organization to form join or assist labor organizations to
bargain collectively through representatives of their own choosing and
to engage in other concerted activities for the purpose of collective bar
gaining or other mutual aid or protection together with the nght to
refrain from any or all such activities except as qualified by a valid
union security agreement
III RESPONDENT S STATUS
Respondent concededly is a labor organization within
the meaning of Section 2(5) of the Act
IV THE PRIMARY DISPUTE
As noted Respondent admittedly had a pnmary dis
pute with Losh at relevant times—presumably because
Losh is now nonunion after having been a signatory
employer for many years In addition to that admission
the record contains cornucopic evidence, much of it
cited later, revealing of the dispute and of Respondent s
fervor in its pursuit Evidence not later cited but never
theless illuminating in those respects, includes the follow
mg
(a) William Hulen a business agent in Respondent s
San Jose office testified that Respondent is concerned
about Lash s invasion of the San Francisco Bay Area
and that this concern was aggravated by Losh s pro
curing a very large job at the Stanford University
Hospital in early 1988
(b) Robert Mammmi, Respondent s business manager
and president sent a letter to the general contractor on
the Stanford project in March 1988 in which he stated
Losh did not fabricate the kitchen equipment It in
tends to install on this project on a union basis and
is not a union contractor We believe this informs
tion is relevant to a decision to cancel your contract
with Losh
(c) John Fontaine president of Broadway Sheet Metal
(Broadway) credibly testified that one of Respondent s
business agents Norm Nutcher remarked upon learning
that Broadway had bid to install Losh made equipment
at Stanford that it would find itself in the middle of a
war between Respondent and Losh should it get the
work
(d) Fontaine credibly testified as well that another of
Respondent s business agents Don Basso likewise stated
when told that Broadway had declined the Stanford job
that it would be getting in the middle of a war by han
dlmg Losh products
V THE ALLEGED MISCONDUCT
A January 5 1988
1 Allegation
The General Counsel contends that Respondent, by
Mammini, violated Section 8(b)(4)(i) and/or (u)(B) on
about January 5, 1988, by threaten[mg] a representative
of G & B that it would not allow installation of any
nonunion equipment by G & B or anyone else in San
Francisco
2 Evidence
In January 1988 G & B installed Losh manufactured
equipment at the San Francisco Stock Exchange
Kenneth Gordy G & Bs president testified that he
telephoned Respondent s San Francisco office on Janu
ary 5 as a courtesy to the local business agent,' to let
SHEET METAL WORKERS LOCAL 104 (LOSLI INTERNATIONAL) 1081
him know that G & B would be working in the area
Gordy recounted that he was "certain" that he spoke
with Mammim, that Mammini asked if the equipment to
be installed was of union or nonunion manufacture, and
that, when Gordy answered that he did not know, Mam-
mini proclaimed that it had better be made union" be-
cause Respondent was not allowing "nonunion crap" in
San Francisco
Mammim testified that such a conversation never hap-
pened, indeed, that he "never had a conversation with
Mr Ken Gordy or any party of G & B Installations,
ever" He further testified that he was in Honolulu from
January 4 to 10, and, in verification, produced a hotel
bill and airline boarding passes
G & B's telephone records disclose that it was billed
for an 11-minute call to Respondent's San Francisco
number on January 5 Mammim testified that he had "no
idea" who was in charge of the office in his absence, that
two business representatives, Don Basso and Dave
Conway, and the financial secretary, William Hill, had
authority to take telephone calls from contractors, and
that Basso and Conway possibly spoke to Gordy without
Mammim's knowing it None of the three—Basso,
Conway, or Hill—testified
G & B made the installation without further contact
with Respondent The job lasted about 2 weeks
3 Conclusions
Gordy impressed me as being a conscientious and gen-
erally trustworthy witness I find that, while he obvious-
ly was mistaken in identifying Mamnum as his opposite
number in the subject conversation, he did have such a
conversation with someone at Respondent's number
I conclude that Respondent endowed this "someone"
with apparent authority by placing him in a position to
answer calls and speak as he did, thereby making him its
agent, 2 and that his remark—that the equipment "had
better be made union" because Respondent was not al-
lowing "nonunion crap" in San Francisco—went beyond
merely requesting that Gordy make a management deci-
sion favorable to Respondent, instead carrying an unmis-
takable "or else" purport, thus constituting a threat, co-
ercion, or restraint within subsection (n) of Section
8(b)(4) 3 I further conclude that a manifest object of this
remark was to force or require G & B to cease doing
business with any nonunion fabricator with whom it
might be dealing, Logi included, and that it therefore
violated Section 8(b)(4)(n)(B) as alleged
I conclude, finally, that the remark did not amount to
inducement or encouragement as contemplated by sub-
section (i) of 8(b)(4) While Gordy, even though G & B's
president, is an "individual" for purposes of (1), the
2 Cf Restaurant Employees Local 50 (Dick's Restaurant), 287 NLRB
1180 (1988), Business Services by Manpower, 272 NLRB 827, 834 (1984)
3 See generally NLRB v Servette Inc. 377 U S 46, 51 (1964), Iron
Workers Local 433 (United Steel), 280 NLRB 1325 (1986), Tri-State Build-
ing Trades Council (Backman Sheet Metal), 272 NLRB 8 (1984), Food
Commercial Workers Local 506 (Coors Distributing), 268 NLRB 475
(1983), Painters Local 829 (Theatre Techniques), 267 NLRB 858 (1983),
Operating Engineers Local 12 (Cal Tram Rebuilders), 267 NLRB 272
( 1983), Sheet Metal Workers Local 2 (Hall Refrigeration), 203 NLRB 954
(1973), Electrical Workers IBEW Local 5 (Ione! Construction), 164 NLRB
455 (1967)
remark plainly was not meant to induce or encourage
him to withhold his services from G & B to cause it to
apply pressure on nonunion firms 4
B March 10
1 Allegation
The General Counsel contends that Respondent, by
Hulen, violated Section 8(b)(4)(1) and/or (n)(B) on about
March 10, 1988, by "threaten[mg] a representative of G
& B that Respondent would not allow equipment manu-
factured or furnished by Logi to be installed by G & B
at a Stanford University Hospital jobsite "
2 Evidence
On March 10, Gordy called Respondent's San Jose
number, and happened to speak with Hulen G & B's
telephone records disclose that the call lasted 33 minutes
Gordy testified that he told Hulen that G & B was
thinking about installing Losh equipment at the Stanford
University Hospital, that he knew Losh to be nonunion,
and that he was concerned about G & B's "getting into a
can of worms" Hulen responded, according to Gordy,
that Respondent was "watching" the Stanford job, that
"whoever ended up getting it was going to face some
problems", that Respondent's members "had decided
they would not allow the equipment to be installed", that
"the men on the site would not allow it to be in-
stalled", and that the members "would probably walk off
the job" Hulen added, per Gordy, that the Bay Area
trade unions had "good solidanty", and that, while he
would "probably advise" G & B "to go ahead and install
the work if the Bay Area was as nonunion as" the
Los Angeles area, that was not the case 5
Gordy injected, he recounted, that G & B is proumon,
prompting Hulen to declare that, "as good union mem-
bers," its employees "shouldn't install" Losh equipment
and "help a nonunion contractor stay in business"
Asked if Hulen said that Respondent, as distinct from
its members, would take action against the installation of
Losh equipment, Gordy testified, "Not that specifically,
no "43
Hulen's account of the March 10 conversation, while
much less detailed, corresponds in major part with
Gordy's As Respondent's brief observes, "ninety-five
percent of the conversation is undisputed" Hulen
initially testified that he "only answered questions" that
Gordy "directed to" him—that Losh "had formerly been
a union shop" but was no more, that Losh had no con-
tracts with Respondent or any affiliated organization "to
the best of [his] knowledge," etc
4 NLRB v Servette Inc , fn 3, supra, 377 U S 54, Carpenters Local 316
(Thornhill Construction), 283 NLRB 81, 81 fn 3 (1987)
5 Riverside, where G & B is located, is near Los Angeles
a Gordy first testified that Hulen said Respondent would not "allow
nonunion equipment to be installed" He conceded on cross-examination,
however, that Hulen instead said the members would not allow it I do
not think Gordy was trying to mislead, rather—as indicated by his ac-
companying remark, "This is not the same thing 9"—he thought the dis-
tinction to be spurious
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hulen testified that he also stated that individual
members in our area normally look for [union] labels on
jobs that it was not uncommon for our people to
refuse to Install material that did not have a—a label on
it that it would be that the—the members would elect
not to handle the—the matenal on that jobsite and that,
while the choice was each member s to make our
people usually would decide not to install the equip
ment individual people Hulen further remarked as he
recalled, that Gordy should check with the Electricians
and Plumbers unions, since such an installation also
would involve people in those trades and opined ac
cording to his affidavit that he thought they would
probably walk off the job
3 Conclusions
As noted Respondent does not dispute Gordy s ver
sion of this conversation in any significant detail For
that reason and because Gordy came across as a general
ly reliable witness I credit his account I also credit
Hulen that he made the additional remarks set forth
above
I conclude that the following utterances by Hulen
singly and in the aggregate bore a threatening coercive,
or restraining intendment within subsection (n) of Sec
non 8(b)(4) That whoever ended up installing the
Losh equipment was going to face some problems',
that Respondent s members had decided they would not
allow the equipment to be installed , 7 that the members
would probably walk off the job , that he would prob
ably advise G & B to go ahead and install the work
if the Bay Area was as nonunion as the Los Ange
les area, but that was not the case, that G & B s employ
ees as good union members should not install Lash
equipment and help a nonunion contractor stay in busi
ness , that, while the choice was each member s to make
our people usually would decide not to install the
equipment , and that he thought electricians and plumb
ers would probably walk off the job, as well
I additionally conclude that Hulen had a cease doing
business object when making these assertions, and that he
consequently violated Section 8(b)(4)(n)(B) as alleged 8
C Apnl 5
1 Allegation
The General Counsel contends that Respondent by
Hulen, violated Section 8(b)(4)(0 and/or (u)(B) on about
April 5, 1988, by threaten[mg] to act in concert with
other labor organizations to take a stand and not permit
G & B to install any equipment manufactured or fur
mshed by Losh at Stanford and by threaten[ing] to
charge and to impose fines on any employees of G & B
working at Stanford who handled or worked with any
equipment manufactured by Losh
7 Hulen s studied efforts to distance Respondent from the likely actions
of its members do not Insulate It Laborers Local 676 (E B Roberts Con
structron) 232 NLRB 388 (1977) Sheet Metal Workers Local 2 (Hall Re
frigeratron) fn 3 supra See also Teamsters Local 50 (E J Dougherty
Oil) 269 NLRB 170 (1984)
a But not Sec 8(b)(4)(i)(B) See fn 4 supra and accompanying text
2 Evidence
Gordy and Hulen had another telephone conversation
on Apnl 5 It was initiated by Gordy and lasted 12 min
utes Gordy testified that he told Hulen a G & B crew
was on the way to do the Stanford installation for
Losh that based on assurances from Losh, he assumed
that arrangements had been made and that all would
be fine on the crew s arrival, and that he was calling
just to make sure
Hulen responded according to Gordy, that no one
had contacted him that no arrangements had been
made , and that Respondent was not going to allow the
equipment to go in Hulen added, per Gordy that Re
spondent had agreements with the fitters and
electricians that they weren t going to allow [the
equipment] to go in either and that G & B would
have no cooperation from the other trades
Hulen continued by Gordy s account, that Respond
ent was gomg to hold tough on this one, that it was
gomg to take [its] stand right here and that it was not
gomg to allow this equipment to come in Gordy
asked about G & B s right under secondary boycott
law to mstall the equipment, as he recalled prompting
Hulen to exclaim that that ' didn t matter,' that Respond
ent was going to fight the battle now," that it would
make the mess and hire the attorneys afterwards to
clean it up
Gordy testified that he then offered to staff the G & B
crew through Respondent s hiring hall, and that Hulen
came back that that wasn t really the point rather,
that the nonunion manufacture of the equipment was the
problem, and that he would prefer charges against any
member who touched that equipment Gordy asserted
ly questioned how Respondent could charge G & B em
ployees when G & B had no control over the equip
ment and Hulen came back that he would file them
anyway — whether they 11 stick or not really isn t the
pomt ' Hulen amplified according to Gordy, that non
union equipment would flood in and the Bay Area
manufactures would become predominantly nonunion
as had happened in southern California if Respondent
"let the thmg go
Hulen went on, by Gordy s account, that Respondent
had targeted Losh, that it had a list of all [its] jobs
and was gomg to be on every Losh job everywhere
and mtmg a prior walkout on a Losh job in the area
that the members were not going to work on a job that
had nonunion equipment on it and would probably
walk out again Gordy acknowledged, again that Hulen
did not say Respondent, as distinct from its members
would undertake a work stoppage
The exchange ended according to Gordy, with Hulen
saying G & B "could go ahead and Install the work if it
so desired, then, You do what you have to do, and I 11
do what I have to do
Hulen scarcely addressed the April 5 conversation in
his testimony, and as Respondent s brief notes his and
Gordy s recollection[s] of this conversation [are] again
98% similar The only conflict of substance arises from
Hulen s denial—not in his live testimony but in a decla
ration previously submitted to the United States District
SHEET METAL WORKERS LOCAL 104 (LOSLI INTERNATIONAL) 1083
Court for the Northern District of California—that he
said anything about bringing charges against members
who handled Losh-made equipment 9
Gordy credibly testified that, as a result of his April 5
conversation with Hulen, G & B withdrew from the
Stanford job, scheduled to begin the next day
3 Conclusions
Crediting Gordy's account of this conversation in all
respects," I conclude that several of Hulen's remarks
threatened, coerced, or restrained, that he had a cease-
doing-business object when he spoke to them, and that
he therefore violated Section 8(b)(4)(n)(B) as alleged in
each instance"
Hulen's several offending remarks are That Respond-
ent was not "going to allow the equipment to go in",
that Respondent had "agreements" with the fitters and
electricians and they "weren't going to allow [the equip-
ment] to go in," either, that G & B "would have no co-
operation from the other trades", that Respondent was
"going to hold tough on this one" and "take [its] stand
right here", that G & B's legal nghts "didn't matter,"
Respondent was "going to fight the battle now" and
"hire the attorneys to clean up the mess" after-
wards, that Hulen would "prefer charges against" any
member "who touched that equipment"—"whether
they'll stick or not really isn't the point", that Respond-
ent's members "were not going to work on a job that
had nonunion equipment on it", and, citing a prior Losh
job where a walkout had occurred, that the members
"probably" would walk out again
D May 5
1 Allegation ,
The General Counsel contends that Respondent, by
Hulen, violated Section 8(b)(4)(1) and/or (n)(B) on about
May 5, 1988, by "mduc[ing] an employee of G 8c B em-
ployed at a [GTE] jobsite not to work with or oth-
erwise handle any equipment or materials manufactured
by Losh," and by "threaten[mg] a representative of G &
B during a telephone conversation that Respondent
would cause employees of G & B and other employees
to engage in a work stoppage if G & B attempted to in-
stall Losh equipment at GTE and at a Sheraton-Milpitas
jobsite
2 Evidence
On May 5, two G & B employees, Danny Munoz and
Kelly Gordy, Kenneth's brother (Kelly) began installing
9 Hulen's declaration is part of the present record The General Coun-
sel had petitioned the court for an injunction under Section 10(1) of the
Act, and Respondent submitted Hulen's declaration in support of its op-
position The court dented the petition
" As mentioned, Respondent disputes only that portion of Gordy's re-
cital concerning Hulen's saying he would "prefer charges against" mem-
bers who "touched" Losh equipment Beyond the convincing nature of
Gordy's presentation, Hulen did not deny so speaking in his live testimo-
ny, and I deem the denial in his district-court declaration, standing alone,
to be of little weight
11 But, again, not Sec 8(b)(4)0)(B)
a Losh hood at a GTE facility in Mountain View, near
San Jose
Before they started, Munoz, a member of Respondent's
sister local in Los Angeles, called Respondent's San Jose
office, obtaining clearance for G & B to work in its juris-
diction That afternoon, having heard that "out-of-
towners" were on the GTE project, Hulen visited the
site, professedly to check on their membership status 12
He apparently spoke first with Jeffrey Buchanan, an em-
ployee of Scott Broadway Contractors (Scott Broadway)
working with Munoz and Kelly on the hood Buchanan,
a longtime member of Respondent, testified that he asked
Hulen if he knew who had fabricated the hood, and
Hulen said he did not 13
Turning from Buchanan, Hulen took up the hood's
provenance with Kelly, who claimed not to know,
either Hulen then inspected the hood for union labels,
finding none Munoz, who had been working several feet
away, presently joined the conversation, and he, Kelly,
and Hulen examined a field drawing, finding Losh's
name on it Hulen remarked that Losh is nonunion, and
that Respondent's members, being "very unified and
very strong," would "probably walk out of the jobsite if
they found out that this nonunion hood was being in-
stalled "i4
Either Munoz or Kelly asked Hulen what he thought
they should do He replied, by all accounts, to the effect
that he could not tell them what to do, but that the other
employees likely would walk off upon learning the
hood's origins 13
Buchanan, having heard much of the exchange just de-
scribed, told Scott Broadway's general foreman, Lyle
Cheers, that he did not want to work on the hood any-
more because of its apparent nonunion status Cheers
told him he did not have to, and he shortly informed
Munoz and Kelly that he no longer would be helping
them "because it [is] a nonunion hood" Buchanan then
gathered his tools and left for the day
Following the conversation among Hulen, Munoz, and
Kelly, Munoz called Kenneth Gordy at G & B's River-
side headquarters He reported that Hulen had said G &
B "shouldn't hang the hood," then turned the phone
over to Hulen Gordy testified that, when he asked what
the "problem" was, Hulen retorted that G & B should
have "contacted" him before taking the job, because the
hood was not union made and Respondent was not
"going to allow it to be put in" Gordy assertedly re-
sponded that G & B had a contractual commitment to
install the hood and that he would direct the crew "to
' 2 Hulen testified that he "carded" Munoz and Kelly, verifying their
good standing in the Los Angeles local Munoz and Kelly denied that
this happened
13 Buchanan, more or less corroborating Hulen, testified that Hulen
checked Munoz' and Kelly's membership-dues receipts
14 Hulen testified that he could not recall whether he stated this in
answer to a question from Munoz or Kelly, "or whether [he] volunteered
that information"
' a Hulen said little about this phase of the encounter in his testimony
In his declaration, however, he admittedly stated that 'it was common in
the industry for employees to walk off the job" in such a circumstance
Munoz first testified that Hulen said they "shouldn t work on' the hood,
but that he could not "tell [them] what to do" Munoz later amended that
Hulen "really didn't give us a shouldn't or should"
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proceed adding that G & B would just be there one
day
Hulen came back per Gordy You do what you have
to do and Ill do what I have to do Hulen further
stated according to Gordy Probably what s going to
happen here is the same thing that happened at Stan
ford , that Respondent was not allowing the equipment
to be installed there and wouldn t allow it to be m
stalled here either 16
Gordy s testimony continued that he said G & B also
had contracted to make a Losli installation at the Shera
ton Milpitas Hotel in nearby Milpitas prompting Hulen
to state that G & B could expect the same kind of prob
lems there —that employees would probably walk off
the job again
At length according to Gordy Hulen turned the
phone back to Munoz and Gordy instructed him to pro
ceed with the installation
Hulen addressing the telephone conversation with
Gordy, testified that it lasted not more than two mm
utes that Gordy said G & B had to nonor its con
tract with Losh at GTE but would not send a crew to
Milpitas or any other jobsite in Respondent s junsdic
tion and that he Hulen indicated to [Gordy] that ap
parently he had made his decision to put the job m
and that [he] felt [he] should not talk to [Gordy] any fur
ther and that was the end of the conversation Hulen
denied that the Stanford situation came up
Hulen stated in his declaration, moreover, that he told
Gordy he thought Respondent s members would prob
ably walk off the job but denied raising the possibility
of a union sponsored stoppage
After his telephone conversation with Gordy Hulen
spoke again with Munoz and Kelly He stated according
to Munoz, that Respondent was trying to get Losh back
into the union and that problems had arisen on an
other job involving a Losh installation and all the guys
up there walked off 17 Hulen continued per Munoz
that the guys over here will probably walk off the job
too if G & B went ahead with the mstallations, then
appended, I m not saying that they will but they
might
Kelly recalled Hulen s saying in this followup conver
sation, that Losh, although nonunion was selling a bill
of goods to the effect that its products could be in
stalled by union members and speculating that this
probably was how G & 3 had become involved with
Losh They briefly talked about the Stanford incident
again according to Kelly after which he or Munoz re
marked that they were in a touch situation and again
asked Hulen to recommend what they should do
Hulen replied, asd Kelly recalled that he could not tell
them to do anything that he had said too much al
ready that he just want[ed] to let [them] know that
the employees on the GTE job most likely [would] not
allow the installation of this nonunion product and
G & B continued to install the hood thereby, put[tmg]
pressure on Munoz and Kelly
16 s members walked off at Stanford in April
IT Munoz testified that while Hulen identified this job he could not
recall its name
Hulen did not specifically address this second ex
change with Munoz and Kelly in his testimony He
denied generally, however that he ever discussed the
Stanford stoppage with them
3 Conclusions
Munoz and Kelly impressed me both in demeanor and
testimonal content as being generally believable wit
nesses I therefore credit their renditions, as just summa
nzed of the May 5 encounters with Hulen
I conclude that Hulen s several remarks to Munoz and
Kelly—that Respondent s members being very unified
and very strong, would probably walk out if they
found out that this nonunion hood was being installed
that he could not tell them what to do, but the other em
ployees likely would walk off' that problems had
risen on another Lost' job and all the guys up there
walked off' etc — would reasonably be understood by
the employees as a signal or request to engage in a work
stoppage against their own employer 18 Each of these
remarks thus constituted inducement or encouragement
within subsection (i) of Section 8(b)(4) 19 and, by
prompting Buchanan to leave the job rather than work
on the hood those spoken before his departure threat
ened, coerced or restrained within (u) as well 20
I further conclude that Hulen s object, when making
these remarks was to force or require G & B to cease
doing business with Losh that he accordingly violated
Section 8(b)(i)(B) as alleged with regard to all and that
he also violated Section 8(b)(4)(n)(B) concerning those
remarks which prompted Scott Broadway s Buchanan to
leave 21
I additionally conclude, crediting Gordy s version of
his telephone exchange with Hulen that Hulen violated
Sec 8(b)(4)(n)(B) as alleged by telling him that Respond
ent was not going to allow [the hood] to be put m
that probably the same thing that happened at
Stanford would happen there, that Respondent
wouldn t allow it to be installed at GTE, either, and
that G & B could expect the same kind of problems —
the employees would probably walk off the job
again —should it make a Losh installation at the Shera
ton Milpitas Hotel
E May 6
1 Allegation
The General Counsel contends that Respondent by
Hulen violated Section 8(b)(4)(i) and/or (n)(B) on about
May 6 1988 by caus[ing] employees of Scott Broad
"Los Angeles Building Trades Council (Sierra South Development) 215
NLRB 288 290 (1974) That Hulen said he could not tell Munoz and
Kelly what to do does not alter this conclusion Longshoremen ILWU
Local 119 (West Coast Container) 266 NLRB 193 (1983)
19 The words Induce or encourage are broad enough to include in
them every form of influence and persuasion Electrical Workers IBEW
Local 501 (Samuel Langer) v NLRB 341 U S 694 701 (1951)
"Los Angeles Building Trades Council (Sierra South Development) fn
18 supra 215 NLRB at 290
21 That Scott Broadway was a neutral to Respondent s dispute with
Losh and that It is a person for purposes of Sec 8(bX4)(B) are not con
tested
SHEET METAL WORKERS LOCAL 104 (LOSLI INTERNATIONAL) 1085
way to engage in a work stoppage to prevent instal-
lation of Losh equipment"
2 Evidence
During his May 5 visit to the GTE job, Hulen spoke
for several minutes with Scott Broadway's general fore-
man, Cheers Hulen testified that he told Cheers, whom
he has known "for years," that the hood apparently was
of nonunion manufacture, that Cheers asked him what he
thought "the men might do", and that he replied "[I]t's
entirely up to them I have no idea"
At the start of work the next day, May 6, Cheers told
a Scott Broadway employee, Vincent Tnpi, about his
conversation with Hulen, and told Tnpi he wanted him
to preside over a meeting of Scott Broadway's employ-
ees in which they were to decide what to do about the
hood Tnpi, a journeyman sheetmetal worker, has be-
longed to Respondent for 21 years He describes himself
as a "pretty active" member, but denies that he held any
"official" position, including that of shop steward, at this
time
Tnpi then called Hulen, asking about the hood Hulen
"verified that it was not union made," a Tripi recalled,
"may have mentioned" Losli, said that "two guys from
Los Angeles" were installing it, noted that the two in-
stallers belonged to the Los Angeles local, and remarked
that they had obtained a 1-day permit from Respondent
to work in the area, which had expired Tnpi testified
that Hulen did not tell him "what to do and what not to
do," and that he did not ask Tnpi enlarged that he
"didn't need to ask him what to do"—"I don't handle
nonunion equipment
The first of two employee meetings followed, attended
by the 12 or so Scott Broadway employees on the site
Cheers began, telling the group there was "a problem
with the hood", and that he wanted the employees to ex-
plore the situation, with Tnpi as their spokesman, and
then reconvene to decide on a course of action Tnpi
then took over, he recalled, voicing his "opinion" and in-
viting that of the others He testified that they felt as
"strongly" about the situation as he did, and that the
group decided "to walk off this jobsite" should installa-
tion of the Losh hood proceed
After the meeting, Jeffery Buchanan introduced Tnpi
to Munoz and Kelly, who were at work on the hood
Trip asked to see their membership cards, then, in his
terms, "started getting down to brass tracks" More spe-
cifically, he reported that the Scott Broadway employees
had voted unanimously to "walk off" the job if G & B
went on with the installation Munoz proposed that they
try to "work something out", and, to that end, said he
would call Gordy in Riverside and also his Los Angeles
local Munoz and Kelly declined to get involved, that
Gordy had told them to proceed with the work, and that
they had decided to honor Gordy's directive .
Cheers thereupon convened a second meeting of the
Scott Broadway employees He urged them to seek a so-
lution that would avert a stoppage, then left the meeting
to Tripi Tripi apprised the group of the latest develop-
ments, and they decided, as he put it, that "it was time to
go home" The Scott Broadway employees thereupon
left the site
Munoz and Gordy meanwhile stayed on the job, com-
pleting installation the evening of the 6th
3 Conclusions
I conclude that the May 6 walkout by Scott Broadway
employees was a "logical and foreseeable consequence"
of Hulen's conduct on the site the day before, including
his aforementioned violations of Section 8(b)(i) and
(u)(B) and his discussion of the hood with Cheers, and of
his May 6 conversation with Tnpi, and that, by thus suc-
cessfully inducing a walkout, he additionally violated
Section 8(b)(4)(i) and (u)(B) as alleged 22 .
F The Munoz Disciplinary Matter
1 Allegations
The General counsel contends that Respondent violat-
ed Section 8(b)(4)(1) and/or (u)(B) and Section 8(b)(1)(A)
on about May 24, 1988, when Mammini notified Munoz
"that internal union charges had been filed against"
him, on about July 13, 1988, by "conduct[mg] an internal
union trial against Munoz", and on about August 19,
1988, when Mammim "notified Munoz that Respondent
had sustained the, charges and therefore imposed a fine"
2 Evidence
The truck by which Munoz and Kelly transported
their tools and materials onto the GTE site contained no
signs or markings identifying it as G & B's Further, as
previously mentioned, Tnpi testified about Hulen's tell-
ing him on May 6 that the 1-day permit G & B had ob-
tained from Respondent to work in its jurisdiction had
expired
On May 10, Tripi charged Munoz with violating the
constitution of Respondent's parent International The
charge, in the form of a letter to Respondent's president,
Mammini, alleged that Munoz had breached Article 17,
Sections 1(e) and (m) Section 1(e) proscribes a member's
violating the established union, collective bargaining
agreements and rules and regulations of any local
union relating to rates of pay, rules and working
conditions .
Section 1(m) bans a member's
engaging in any conduct which is detrimental to the
best interests of this Association or any subordinate
unit thereof or which will bring said unions into dis-
repute
Tnpi's letter described Munoz' offenses as follows
On Friday, May 6, 1988, Danny Munoz was install-
ing a hood at the GTE project on Ferguson Ave in
Mt View, CA There was no clearance called into
the San Jose office of SMWIA Local #104 for this
project on the 6th of May Mr Munoz was also
22 CI Longshoremen IBEW Local 119 (West Coast Container), In 18,
supra, 266 NLRB at 196
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
driving an unmarked truck carrying tools and
equipment
By letter dated May 24 Mammun informed Munoz
that charges [had] been preferred against him by Tnpi
that they would be read at Respondent s June 16 general
membership meeting and that Respondent would notify
Munoz of the date place, and time of his trial on the
charges
The trial before a nine person trial committee, was
held July 13 Munoz did not attend The trial commit
tee s minutes report that Tnpi and Hulen testified, and
contain this summary of their recitals
Brother Trip' stated that he had noticed other
sheet metal work on the jobsite where he was
working and was unable at the time to determine
where the sheet metal material came from or who
was doing the installation It was brought to his at
tention in the morning of Friday, May 6 1988 that
someone was working on the installation He went
on to say that he asked the two guys working to
show their membership receipts, which they did
Brother Tnpi stated that he noticed the truck
that they were using was carrying a welding ma
chine power tools and other tools and also that the
truck had no signs and was unmarked
Brother Tnpi said he called the union call to find
out if these guys had reported in their presence
Brother Hulen Local 104 Business Represents
tive was asked as a witness to verify that they had
reported in and Brother Hulen stated that there was
a call from Brother Munoz on Thursday May 5
1988 approximately 8 30 A M or 900 A M and
Brother Munoz had requested clearance for that
day only
On August 9, the trial committee issued this finding
and recommendation
After deliberation of each preferred charge, bemg
violation of Article Seventeen (17) Section 1 (e)
and 1 (m) of the Sheet Metal Workers International
Association Constitution and Ritual and consider
anon of the facts and testimony available it was the
decision of the Trial Committee on July 13, 1988,
that Danny Munoz membership #661383, a
member of Sheet Metal Workers International As
sociation Local No 108 be found guilty of each
charge
The Trial Committee recommends that Danny
Munoz be fined the sum of $1 664 16 Six Hundred
Sixty Four Dollars and Sixteen Cents ($664 16)
which is to be paid within ninety (90) days from the
date of this notice and One Thousand Dollars
($1,000 00) to be suspended for probationary period
of three years from date of this notice and this fine
shall be paid in addition to any future violations
fines during this penod
On August 19 Mammini sent Munoz the finding and
recommendation along with the minutes of the trial and
a cover letter stating that the finding and recommenda
non had been upheld by the membership at the August
18 general meeting
Tnpi testified that these may have been the only
charges he has filed m his 21 years as a member and that
Hulen assisted in their preparation suggesting which ar
tides to quote and helping with the language Tnpi
conceded that he did not type them and professed not to
remember where they were typed As previously con
cluded Hulen violated Section 8(b)(4)(n)(B) on April 5
by telling Gordy that he would prefer charges against
any member who touched that [Losh] equipment
Asked the purpose of the requirement that only
marked vehicles be permitted on a site Mammini testi
fled
So that we have some idea of who is on the jobsite
and whether he s a signatory contractor whether
he s from out of the area [I]t would eliminate a
lot of expense and eliminate a lot of lost time
of a business rep having to run out to that jobsite
and check it out
3 Conclusions
I find that the stated reasons for charging and disciph
nary Munoz were pretextuous and that the actions in
fact were m retribution for his continuing to work May 6
on the Losh hood Thus
(a) Although Tnpi was the nominal instigator, Hulen
plainly was the prime mover Hulen not only had threat
ened Gordy on April 5 that he would prefer charges
against any member who touched that equipment, but
he suggested to Tnpi which articles to quote and
helped with the drafting of the charges In addition
Tnpi professedly could not remember where the charges
were typed warranting the inferences that that aspect of
their preparation was out of his hands as well and Tnpi
in his 21 years of membership never before had brought
charges indicating the improbability of his doing so of
his own volition That Hulen saw need for a stalking
horse speaks eloquently of pretext
(b) The charges arose from a job in which Munoz
worked on a Losh hood, and were brought at a time
when Respondent was pushing its dispute with Lash
with perfervid zeal
(c) The violations for which Munoz ostensibly was
prosecuted were of an altogether technical—one might
even say petty—nature particulalry since Munoz had ad
vised Respondent s San Jose office of G & B s presence
on the GTE site before starting work 23
Having found that Respondent s disciplining of Munoz
was prompted by his workmg on the Losh hood, I per
force conclude that it was calculated to induce or en
courage him and other G & B employees to withhold
their services and also to threaten coerce, or restrain G
& B the object in both cases being to force or require G
& B to cease doing business with Losh Respondent
23 Records of pnor disciplinary proceedings reveal that Respondent
generally Imposed much smaller fines for these offenses than it Imposed
upon Munoz
SHEET METAL WORKERS LOCAL 104 (LOSLI INTERNATIONAL) 1087
therefore violated Section 8(b)(4)(1) and (u)(B), and de-
nvatively Section 8(b)(1)(A), as alleged 24
G The Gordy Disciplinary Matter
, 1 Allegation
The General Counsel contends that Respondent violat-
ed Section 8(b)(4)(n) and Section 8(b)(1)(A) on about
October 24, 1988, when Mammim "filed internal union
charges [against Kenneth Gordy] for making an alleged-
ly false statement during [a] Board hearing and noti-
fied Gordy of said charges," on about December 13,
1988, by "conduct[ing] an internal union trial against
Gordy", and on about January 26, 1989, when the secre-
tary of Respondent's trial committee "notified Gordy
that Respondent had sustained the charges and therefore
imposed a fine"
2 Evidence
Gordy, G & B's president, testified herein on July 26,
1988 As earlier described, he related that he had a tele-
phone conversation with Mammim on January 5, 1988,
in which Mammini declared that G & B "had better" be
installing union-made equipment in the San Francisco
Stock Exchange because Respondent was not allowing
"nonunion crap" in San Francisco, and, as I previously
found, Gordy was mistaken in attributing the remarks to
Mammim, but otherwise accurately recounted his call to
Respondent's San Francisco office
On October 24, Mammim sent Gordy a letter charging
him with violating article 17, sections 1(c), (d), and (m)
of the International's constitution Gordy is a member of
Respondent's sister local in Los Angeles Section 1(c)
prohibits members from
engaging in conduct at union or council meetings,
or at other locations, that tends to or does interfere
with, diminish, or destroy the ability of an officer,
business manager, business representative, or
member to perform legal, contractual or constitu-
tional obligations on behalf of a local union or
council or to discharge the duties of the office to
which such individual was elected or appointed
Section 1(d) bars the
filing [of] false charges against any officer or
member of this Association or of any local union or
council thereof or failing, refusing or neglecting to
appear as a prosecuting witness after filing charges,
or to prevent all facts and evidence to support any
charges so filed against such officer or officers or
member or members
Section 1(m), fully quoted above in the section dealing
with the Munoz disciplinary matter, proscribes conduct
"detrimental to" the International or its "subordinate
unit[s]," or which brings them "into disrepute"
Mammim's letter elaborated
24 Plumbers Local 444 (T S Hanson Plumbing), 277 NLRB 1231
(1985), Carpenters (Commercial Industrial, Constructors), 259 NLRB 541
(1981), Carpenters (Pace Construction), 222 NLRB 613 (1976)
On July 26, 1988, Ken Gordy testified, under pen-
alty of perjury, in a hearing on NLRB Case No 32-
CC-123l as to facts which were deliberately false
and slanderous to Business Manager Robert Main-
mini Gordy deliberately gave false testimony in that
he had been previously warned that the allegation
that he had spoken with Business Manager Main-
mini on the telephone and that Business Manager
Mammim made certain statements was a false state-
ment However, at the time of the hearing, rather
than correct the falsity, Gordy chose to not only
repeat the false allegation, but chose to 'specify a
date on which the alleged statement occurred, a
date on which Mr Mammini proved that he was
out of the State, at a General Executive Council
meeting at the time and thus unequivocally did not
have the conversation
This charge is based solely on the false statement
given by Gordy at the hearing regarding his alleged
conversation with Mamnum on January 5, 1988,
, and not based on Gordy's involvement in the
NLRB hearing in any other regard
Trial on the charge, before a 10-person trial commit-
tee, was held December 13 Gordy did Uot attend The
trial committee's minutes reflect that Mammim was the
sole witness, testifying as follows
Brother Mammini stated that he stands by the
charges and facts as submitted He went on to say
that this man, Brother Ken Gordy knowingly per-
jured himself in documented testimony against the
President, Business Manager of Sheet Metal Work-
ers' International Association, Local 104 and who
also is President of the Western States Council and
a General Vice President of the Sheet Metal- Work-
ers' International Association
Brother Mammim then submitted as evidence,
Exhibits 1, 2 and 3 which were noted as sworn
statements in transcript of Brother Mammies state-
ment to a Hearing Officer before the National
Labor Relations Board Brother Gordy's statements
to the Hearing Officer and court filed declarations
presented to a court of law by both Brother Mam-
mini and Brother Gordy
Brother Mammini read from a transcript whereby
Ken Gordy stated that he had discussed a job situa-
tion with Business Manager Robert Mammim on
the telephone Brother Mammim stated that he had
not had such a conversation with Ken Gordy
Brother Mammim read from transcript that in re-
sponse to questioning by attorney, Kathy Sure, Ken
Gordy stated that the telephone conversation with
Business Manager Mammini was on January 5,
1988
Brother Mammim then read from transcript his
own response to the question of the alledged [sic]
telephone conversation with Ken Gordy and stated
that he, Brother Mammim, was not even in town on
January 5, 1988 and that he was in Hawaii attending
a meeting with the Sheet Metal Workers' Interna-
tional Association General Executive Council He
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
went on to produce the actual airline boarding
passes noting the dates of the flights to and from
Hawaii and a copy of his hotel bill in Hawaii prov
mg that he could not have had a telephone conver
sawn with Ken Gordy from the San Francisco
Office on January 5, 1988 as well as the listed tele
phone calls from the itemized hotel bill It was
noted that Brother Mammini flew to Hawaii on Jan
uary 4th and returned on January 10th
In summary Brother Mammim said that Brother
Gordy had adequate opportunity to retract his
statement of the alledged [sic] telephone conversa
tion and the date of the alledged [sic] conversation
in that, in the declarations filed in court Brother
Mammini stated that if Brother Gordy would spec'
fy a date of the alledged [sic] conversation it was
more than likely he was out of town However,
even under oath before the National Labor Rela
tions Board he did not change his testimony but
rather specified a date when in fact Brother Mam
mini was out of town, thus possibly perjuring him
self against a Brother Member
That same day December 13, the trial committee
issued this finding and recommendation
After deliberation of each preferred charge being
violation of Article Seventeen (17) Section 1(c)
Section 1(d) and Section 1(m), of the Sheet Metal
Workers International Association Constitution and
Ritual and considerations of the facts and testimony
available, it was the decision of the Trial Committee
on Tuesday, December 13 1988, that Ken Gordy
membership No 778528 a member of Sheet Metal
Workers International Association, Local Union
No 108, be found guilty a charged on violation of
Article Seventeen (17), Section 1 (c) and shall be
fined One Thousand Dollars ($1 000 00) guilty as
charged on violation of Article Seventeen (17) Sec
non 1 (d) and shall be fined One Thousand Dollars
($1 000 00) guilty as charged on violation of Article
Seventeen (17) Section 1(m) and shall be fined One
Thousand Dollars ($1 000 00)
The Trial Committee recommends that Ken
Gordy be fined the total sum of Three Thousand
Dollars ($3,000 00) One Thousand Five Hundred
Dollars ($1,500 00) which is to be paid within
ninety (90) days from date of notification and One
Thousand Five Hundred Dollars ($1 50000) is to be
suspended for a probationary period of three (3)
years from date of notification and this fine shall be
paid in addition to any future violations and fines
during this period
On January 26, 1989 the trial committee s secretary
William Hill, sent Gordy the finding and recommends
non, together with the trial minutes and a cover letter
stating that the members had upheld the trial committee's
actions at the general meeting held December 15
3 Conclusions
I find that the stated reason for disciplining Gordy—
that he deliberately gave false testimony herein—was
contrived that Respondent s real motivation was G &
B s several dealings with Lash I based this on my con
viction that except for misidentifying the union official
with whom he spoke, Gordy accurately described the
January 5 conversation and on my further conviction
that Mammim, for all the sanctimony expressed in his
charging letter either knew this or easily could have as
certamed it had he been the least interested in the truth
rather than cynically exploiting a clean up shot oppor
tunny to punish Gordy in furtherance of Respondent s
dispute with Losh 25
I accordingly conclude that, by disciplining Gordy
Respondent threatened, coerced or restrained him to
force or require G & B to cease doing business with
Losh thereby violating Section 8(b)(4)(n)(B) as alleged
I additionally conclude that Respondent violated Sec
tion 8(b)(1)(A) by disciplining gordy, albeit G & B s
president, for restifymg in a Board proceeding Extract
ing from Orkin Exterminating Co 26
[T]he protection afforded supervisors stems not
from any statutory protection afforded supervisors,
but rather from the need to vindicate the exercise
by statutory employees of their Section 7 rights 27
CONCLUSIONS OF LAW
1 Respondent violated Section 8(b)(4)(u)(B) of the
Act on January 5 1988 when an unidentified agent
made threatenmg, coercive or restraining remarks to G
& B s president Kenneth Gordy, with an object of forc
mg or requiring G & B a neutral, to cease going busi
ness with Losh and other nonunion fabricators
2 Respondent violated Section 8(b)(4)(n)(B) on March
10, April 5 and May 5 1988 when its agent William
Hulen, made threatening coercive, or restraining re
marks to Gordy with an object of forcing or requiring G
& B to cease doing business with Losh
3 Respondent violated Section 8(b)(4)(0 and (u)(B) on
May 5 and 6 1988 when Hulen made certain remarks to
employees of G & B and of Scott Broadway also a neu
tral which effectively induced or encouraged employees
25 While Mamnum acknowledged that Gordy possibly spoke to others
in Respondent s office without his knowing the record contains no evi
dence that he conducted an inquiry to determine if that Indeed happened
and what was said
26 270 NLRB 404 409 (1984) in turn quoting from Greenbrier Valley
Hospital 265 NLRB 1056 1057 (1982)
27 See also Amason Inc 269 NLRB 750 753 (1984) I am aware of
Slate Workers Local 666 (Sierra Employers) 267 NLRB 601 (1983) in
which addressing the legality under Section 8(b)(1)(A) of a union s suing
an employer association allegedly for abusing the Board s processes by
filing a multiplicity of charges the Board stated at 602
The importance of Ethel right to file charges or give testimony under
the Act does not permit the Board to transfer this right to a
class of legal persons for whom there is no evidence that Congress
Intended It
I respectfully suggest that the rationale set forth in Orkin Exterminating
Co applies equally to the present situation and that Sierra Employers is
wrongly decided to the extent that it decrees otherwise
SHEET METAL WORKERS LOCAL 104 (LOSLI INTERNATIONAL) 1089
of Scott Broadway to stop working in aid of Respond-
ent's dispute with Losli
4 Respondent violated Section 8(b)(4)(1) and (n)(B)
and Section 8(b)(1)(A) between May 10 and August 19,
1988, by instigating disciplinary charges against and
fining G & B employee Danny Munoz in furtherance of
its dispute with Losh
5 Respondent violated Section 8(b)(4)(n)(B) between
October 24, 1988, and January 26, 1989, by bringing dis-
ciplinary charges against and fining Gordy in furtherance
of its dispute with Losh, and, by the same conduct, vio-
lated Section 8(b)(1)(A) inasmuch as its professed basis
for these actions—the allegedly false character of
Gordy's testimony in a Board proceeding—restrained or
coerced employees in the exercise of their statutory
rights
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed28
ORDER
The Respondent, Sheet Metal Workers International
Association, Local No 104, its officers, agents, and rep-
resentatives, shall
1 Cease and desist from
(a) Inducing or encouraging any individual employed
by any person engaged in commerce or in an industry af-
fecting commerce to engage in a stnke or refusal, in the
course of his employment, to use, manufacture, process,
transport, or otherwise handle or work on any goods, ar-
ticles, matenals, or commodities, or to refuse to perform
any other services, where an object thereof is to force or
require that person to cease doing business with Losh
International, Inc
(b) Threatening, coercing, or restraining any person
engaged in commerce or in an industry affecting com-
merce, where an object thereof is to force or require that
person to cease doing business with Losh International,
Inc
(c) Charging, trying, fining, or otherwise disciplining
Danny Munoz, Kenneth Gordy, or any other member,
24 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
either to induce or encourage him to withhold his serv-
ices from a neutral employer, or to threaten, coerce, or
restrain him, with an object of forcing or requiring the
neutral employer to cease doing business with a primary
employer
(d) Restraining or coercing employees in the exercise
of their statutory rights by disciplining a member of
management ostensibly for giving testimony before the
National Labor Relations Board
(e) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Rescind its disciplinary actions against Danny
Munoz and Kenneth Gordy, expunge from its records
any reference to those actions, and notify Munoz and
Gordy in wntmg that these steps have been taken
(b) Refund to Munoz and Gordy any money held on
account of the fines assessed them in connection with
said disciplinary actions, with appropriate interest 29
(c) Post at its offices and meeting halls copies of the
attached notice marked "Appendix "30 Copies of said
notice, on forms provided by the Regional Director for
Region 32, after being signed by Respondent's represent-
ative, shall be posted by Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
members customarily are posted Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material
(d) Sign and mail sufficient copies of the notice to the
Regional Director for Region 32 for posting by Loth
International, G & B Installations, and Scott Broadway
Contractors, should they wish to do so, at all locations
where notices to employees customarily are posted
(e) Notify the Regional Director in writing within 20
days from the dale of this Order what steps Respondent
has taken to comply
29 Interest shall be computed as prescribed in Florida Steel Corp. 231
NLRB 651 (1977) See also Olympic Medical Corp, 250 NLRB 146
(1980), and Isis Plumbing Co. 138 NLRB 716 (1962)
30 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
* U .S . GOVERNMENT PRINTING OFFICE:
1992 312-470/60004