Sheet Metal Workers Local 99

National Labor Relations Board - Board Decisions

Apr 29, 1969

175 N.L.R.B. 738 (N.L.R.B. 1969)

738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association,
Local No. 99, AFL-CIO; and Sheet Metal
Workers International Association , Local No. 150,
AFL-CIO and Associated Pipe and Fittings
Manufacturers on behalf of all its members. Case
19-CC-349
April 29, 1969
DECISION AND ORDER REOPENING
RECORD
and
REMANDING FOR FURTHER HEARING
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On September 23, 1968, Trial Examiner David E.
Davis issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in any of the unfair labor practices alleged
in the complaint, and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Charging Party and the General Counsel filed
exceptions to the Trial Examiner's Decision and
supporting briefs. The Respondent filed a
cross-exception to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed except as indicated below. The
Board has considered the Trial Examiner's Decision,
the exceptions, cross-exceptions and briefs, and the
entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, only to the extent consistent with
the following.
As more fully set forth in the attached Trial
Examiner's Decision, the complaint, in substance,
alleged that Respondent Local 99 at Seattle,
Washington, and Respondent Local 150 at Tacoma,
Washington, by and through their agents told
certain supervisory employees of Stancey
Enterprises, Inc., d/b/a Feuer Corporation, herein
Feuer, to refuse to handle or install certain pipe and
fittings manufactured by Reliable Steel Supply
Company, herein Reliable, and that such statements
caused individual employees of Feuer to refuse to
handle or install these products with an object of
causing Feuer and other persons to cease doing
business with Reliable in violation of 8(b)(4)(i)(ii)(B)
of the Act.
Feuer, a Los Angeles sheet metal contractor,
contracted to perform the sheet metal work at
construction sites in Seattle and Tacoma. Before the
jobs began, Harry Voss, Feuer's general
superintendent, personally contacted agents of
Respondent Locals 99 and 150. He informed them
of Feuer's anticipated labor requirements and also
stated that the Seattle foreman would be John Isky
and the Tacoma foreman would be Ray 'Hoover.
Thereafter, Feuer commenced work at the Seattle
and Tacoma sites.
Respondent Locals 99 and 150 both have. clauses
in their collective-bargaining agreements which
prohibit the use of certain prefabricated items if
they are not manufactured at the prevailing
construction wage rates. Sheet Metal Workers Local
108, a Los Angeles construction local with which
Feuer has a contract, has a similar provision in its
agreements.
On his first visit to the Seattle site Glenn Arnold,
business agent of Respondent Local 99, noticed
certain round pipe and fittings made by Reliable.
Arnold suspected that the items manufactured by
Reliable were not produced at construction wage
rates. Upon confirming his suspicions (Reliable has
a collective-bargaining contract with a Los Angeles
Sheet Metal Worker's production local) Arnold
returned to the Seattle jobsite and, by his own
admission, made it clear to Foreman Isky, a
member of Local 108, that Respondent Local 99 did
not want the Reliable pipe and fittings installed as it
would not conform to "the Practice" in the Seattle
area.
Thereupon, Isky contacted Voss, Feuer's general
superintendent, and informed him of Arnold's
objections to the Reliable pipe and fittings.
At the Tacoma jobsite, John Starke, the business
manager of Respondent Local 150, had also noticed
the presence of the Reliable pipe and fittings. He
told Foreman Hoover, a Local 108 member, that he
believed it was unlawful to use the Reliable pipe and
fittings and he wanted to clear it up with Voss. He
then called Voss, and determined that the items
involved had not been manufactured at construction
wage rates. However, Starke told Voss that Feuer
could install the Reliable pipe and fittings which had
already been delivered to the jobsite but would not
be permitted to bring in any additional Reliable
products. Voss agreed. However, sometime later,
Starke again spoke to Hoover. He told Hoover that
the matter of the Reliable pipe had not been
resolved as yet, and he asked Hoover not to install
the Reliable products.
Voss was in contact with both Isky and Hoover
concerning the delays in the installation of the
Reliable pipe and fittings. Eventually, the delays
resulting from Respondent's refusal to approve the
use of Reliable's products reached the point where
progress on the Seattle and Tacoma jobs was
threatened . Business agent Arnold had suggested
several union-approved sources of supply where
175 NLRB No. 116
SHEET METAL WORKERS LOCAL 99 739
Feuer could purchase items comparable to the
Reliable products. Ultimately, Voss authorized
Hoover and Isky to purchase the necessary round
pipe and fittings from an approved local distributor.
Thereupon, the round pipe and fittings were so
purchased and the Seattle and Tacoma jobs were
completed.
The Trial Examiner found that the aforenoted
conduct did not violate either 8(b)(4)(i)( B) or (ii)(B)
of the Act.
Regarding the alleged (i) violations, the Trial
Examiner concluded that the Respondents merely
requested that Isky and Hoover delay the
installation of the Reliable pipe and fittings. He
reasoned that such a request merely constituted an
appeal to their managerial discretion as foremen
with reference to work scheduling and was therefore
valid under the Supreme Court's Servette decision.'
We do not agree with the Trial Examiner's
application of that decision to the facts of the
instant case.
The record indicates that foremen Isky and
Hoover both engaged in a substantial amount of
actual sheet metal installation work as well as
performing supervisory functions. Thus, Isky spent
approximately 50 percent of his time at Seattle
working with tools and Hoover spent approximately
75 percent of his time at Tacoma in similar duties.
The Servette decision involved, inter alia, union
appeals to store managers not to' handle certain
products. The authority to decide in behalf of the
employer whether or not to handle the products was
vested in the managers. Thus, the Supreme Court
concluded that the union 's appeals were directed to
the managerial discretion of the individuals involved
and did not constitute an attempt to induce them to
withhold their services from their employer.
However, in the instant case, Isky and Hoover
were both union members. They were asked by
representatives of two sister locals to refrain from
working on products manufactured by a company
other than their employer. These products had
already been purchased and delivered to the jobsites
for installation. Deciding whether or not to install
the Reliable products was not within their discretion
as foremen to make. Both Isky and Hoover were in
constant communication with general superintendent
Voss regarding the problem, and it was Voss whose
authorization was required before union-approved
products could be substituted for those of Reliable.
Therefore, we find that the Respondent Unions'
attempts to dissuade Isky and Hoover from
installing the Reliable products were attempts to
induce them as individuals to withhold their services
in order to force Feuer (their employer) to cease
dealing with Reliable within the meaning of Section
8(b)(4)(i) of the Act.'
'N.L.R.B. v. Servette Inc., 377 U.S. 46 (1964).
'We agree with the Trial Examiner 's observation that the record fails to
indicate any overt act or statement amounting to a threat within the
meaning of Section 8 (b)(4)(ii) of the Act. In view of the fact that it would
The Trial Examiner found, for the reasons
discussed above, that the Respondents had not
engaged in conduct within the meaning of Section
8(b)(4)(i) and (ii) of the Act. Therefore, he did not
find it necessary to determine whether the work
involved herein is, as claimed by the Respondents,
within the work preservation doctrine enunciated in
the National Woodwork and Houston Insulation
decisions.' As we have indicated, we do not agree
with the Trial Examiner's application of the Servette
rationale. Thus, the work preservation issue
presented herein must be resolved.
In order to limit the length of the hearing, the
Trial Examiner, in lieu of permitting the parties to
present detailed evidence on this issue , secured
certain admissions regarding the nature of
performance of the work involved. These admissions
provide only general percentage figures which
indicate primarily what quantities of the work
involved are purchased as prefabricated in the
Seattle and Tacoma areas and then installed, and
what quantities are installed in those areas by
contractors who have also manufactured the relevant
products. We do not believe that the information
contained in these admissions provides an adequate
basis for resolving the work preservation issue. For
example, the scope and composition of the relevant
contractual units represented by the respective
Respondents are not clear in terms of whether these
units include both installers and suppliers, as well as
employers who are engaged in both prefabrication
for sale and installation of the products involved.
Similarly, the record does not indicate the degree of
jobsite and shop fabrication for a specific project, as
compared with prefabrication of the materials
involved without regard to a specific job.
Accordingly, we shall reopen the record and
remand this case for further hearing on the custom
and practice in. the Seattle and Tacoma areas with
regard to the manufacture and use of the products
involved herein and on other relevant matters that
are within the scope of our order as set out below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended:
It is hereby ordered that the record in this
proceeding be, and it hereby is, reopened and that a
further hearing be held before Trial Examiner David
E. Davis to receive evidence from the parties
relevant to the issue of whether the Respondents'
actions in seeking to prevent the use of Reliable's
products were justified by its claims of valid work
have no substantive effect upon the resolution of the issues presented by
our disposition herein, we do not find it necessary to determine whether the
record reveals any other conduct . which could be construed as being within
the meaning of 8(b)(4)(ii). Accordingly , we adopt the Trial Examiner's
dismissal of that aspect of the complaint.
'National Woodwork Manufacturers Assn . Y. N.L.R.B., 386 U.S. 612
(1967); Houston Insulation Contractors Assn . v. N.L.R. B., 386 U.S. 644
(1967).
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protection objectives.
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to the Regional Director
for Region 19 for the purpose of arranging such
further hearing, and that the said Regional Director
be, and he hereby is, authorized to issue notice
thereof.
IT IS FURTHER ORDERED that, upon conclusion of
such further hearing, the Trial Examiner shall
prepare and serve upon the parties a Supplemental
Decision containing findings of fact upon the
evidence received pursuant to the provisions of this
order and such conclusions of law and
recommendations as he may deem appropriate, and
that following the service of such Supplemental
Decision upon the parties, the provisions of Section
102-46 of the Board's Rules and Regulations, Series
8, as amended, shall be applicable.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner: Pursuant to a charge
filed on August 17, 1967, by Associated Pipe and Fittings
Manufacturers, herein sometimes called Manufacturers or
the Charging Party, the General Counsel of the National
Labor Relations Board, herein called the Board, by the
Regional Director for Region 19, issued a complaint on
February 6, 1968, against Sheet Metal Workers
International Association, Local Nos. 99 and 150, herein
jointly referred to as Respondents and individually
referred to as Respondent 99 and Respondent 150. The
complaint, in substance, alleged that Respondent 99 at
Seattle, Washington, and that Respondent 150 at Tacoma,
Washington, by and through their agents told certain
supervisory employees of Stancey Enterprises, Inc., d/b/a
Feuer Corporation, herein called Feuer, to refuse to
handle or install certain pipe and fittings manufactured by
Reliable Steel Supply Company, a division of Pacific
Industries, Inc., herein called Reliable. It is further alleged
that such statements caused individual employees of Feuer
to refuse to handle or install any of the pipe and fittings
made by Reliable with an object of forcing or requiring
Feuer and other persons engaged in commerce or in
industries affecting commerce to cease doing business with
Reliable and that thereby Respondents violated Section
8(b)(4)(i) and (ii) (B) of the National Labor Relations
Act, herein called the Act.' Respondents, in a joint
answer , admitted certain allegations of the complaint but
denied that there was a violation of any of the provisions
of the Act pertinent herein.
A hearing was conducted before the undersigned duly
designated Trial Examiner on March 26 and 27, 1968, at
Los Angeles, California, and on May 7, 8, and 21, 1968,
at Seattle, Washington.
All parties appeared at the hearing, were afforded full
opportunity to examine and cross -examine witnesses, to
introduce evidence, to argue orally, and to submit briefs.
Briefs have been submitted by the General Counsel, by
Counsel for the Charging Party, and by Counsel for
Respondents.
'As will appear, infra . Counsel for Respondents argued that the
pleadings do not state a claim upon which relief can be granted.
Based upon a review of the entire record, observation of
the witnesses, and consideration of the briefs of counsel, I
make the following:
FINDINGS OF FACT
1. BUSINESS OF THE COMPANIES
The complaint alleges, the answer admits and I find
that:
(a) Manufacturers is an association of employers
located in the States of California, Oregon, and
Washington who are engaged in the manufacture and
distribution, at wholesale, of sheet metal pipe, ducts,
fittings and other products of sheet metal for use in the
heating , ventilating and air conditioning industry. The
eleven employer-members of Manufacturers include, inter
alia , Reliable Steel Supply Company, a division of Pacific
Industries, Inc., (herein called Reliable), which operates a
plant in Los Angeles, California; William Wallace Co., a
division of Wallace-Murray Corporation, which operates
plants in Kent, Washington; Belmont , California, and
Logan, Ohio; Curtiss and Distributors, Inc., which
operates a plant in Seattle, Washington; and General
Metalcraft, Inc., which operates a plant in Portland,
Oregon. Manufacturers' employer-members have a total
gross annual sales of round pipe and fittings and related
sheet metal products in excess of $10,000,000. During the
past year, the sale of such products by Reliable alone
exceeded $500,000 and, during the same period, Reliable
purchased materials and supplies directly outside the State
of California having a value in excess of $50,000.
(b) Stancey Enterprises, Inc. d/b/a Feuer Corporation
(herein called Feuer) is a California corporation engaged
as a sheet metal heating, ventilating, and air conditioning
installation contractor in Los Angeles, California.'
(c) Sheet Metal and Air Conditioning Contractors
Association of Southern California, Inc. (herein
SMACNA-SC) is a California corporation with its
principal office and place of business at Los Angeles,
California. SMACNA-SC is an association of employees
engaged as sheet metal heating, ventilating, and air
conditioning installing contractors in the building and
construction industry in the Southern California area.
SMACNA-SC is organized and exists for the purpose,
among others, of negotiating, entering into, and
administering collective bargaining agreements on behalf
of its employer-members with various organizations
representing their employees.
(d) Feuer has been a member of SMACNA-SC since
on or about March 1, 1966.
I find that Manufacturers, the Charging Party herein,
Feuer, and Reliable are enterprises engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. I
further find that assertion of jurisdiction by the Board of
the subject matter involved in these proceedings is
warranted.'
The pleadings do not allege that Feuer is engaged in commerce within
the meaning of the Act. The evidence showed that Feuer purchased
$70,000 worth of steel annually and that the sheet metal work on the two
White Front stores of Seattle and Tacoma had a contract price in excess of
$200,000.
'In Section 8(b)(4) cases the Board takes into consideration for
jurisdictional purposes the operations of all employers affected by the
alleged conduct involved . Madison Building & Construction Trades
Council 134 NLRB 517.
SHEET METAL WORKERS LOCAL 99 741
11. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges , the answer admits, and I find
that Respondents 99-`and 150 and each of them are labor
organizations within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
"demand" is not to be equated with "threat" or
"coercion."' At any rate, it is my opinion that "threaten
or coerce" within the meaning of the statutory provisions
seems not to be encompassed by "told" or "informed."
However, because of the Federal and Board policy of
liberal construction of pleadings, I overruled the motion to
dismiss and permitted the General Counsel to adduce
evidence to establish the actual facts.
A. The Pleadings
The crucial allegations of the complaint are as follows:
13a. On or about August 16, 1967, at the White
Front Seattle job, Henry Vanderwel, job steward and
an agent for Respondent Local 99, told John Isky, job
foreman and agent of Feuer, not to install the products
made by Reliable.'
b. On or about August 23 , 1967, at the White Front
Seattle job , Bill Croake, business manager and agent
for Respondent Local 99 , and Glen Arnold , business
agent of Respondent Local 99, informed job foreman
Isky not to install pipe and fittings made by Reliable.'
15a. On or about July 31, 1967, at the White Front
Tacoma job, John Starke , business manager and agent
of Respondent Local 150, informed Harry Voss,
general superintendent - and agent of Feuer, not to use
the pipe and fittings made by Reliable.'
b. On or about August 7, 1967 , at the White Front
Tacoma job , Starke told Ray Hoover , job foreman and
agent of Feuer on the Tacoma job not to install the
equipment made by Reliable.'
16. As a result of the statements made to agents of
Feuer by agents of Respondent Local 99 referred to
above in paragraph 13, and by agents of Respondent
Local 150 referred , to above in paragraph 15,
individuals employed by Feuer refused to handle or
install any of the pipe and fittings made by Reliable.
17. An object of the acts and conduct of Respondent
99 referred to above in paragraph 13 and of the acts
and conduct of Respondent Local 150 referred to above
in paragraph 15 is to force or require Feuer and other
persons engaged in commerce or in industries affecting
commerce to cease doing business with and to cease
buying , using , and handling the products of Reliable
and other employer-members of Manufacturers.
18. By the acts describe l above in paragraphs 13 and
15 and by each of said acts, for the object described
above in paragraph, 17, Respondent Local 99 and
Respondent Local 150 have engaged in, and are
engaging in, unfair labor practices within the meaning
of Section 8(a)(4)(i )(ii)(B) of the Act.
At the very outset of the hearing counsel for
Respondent , as noted earlier, moved that the complaint be
dismissed on the ground that the pleadings do not state a
claim upon which relief can be granted . I denied the
motion with leave to renew at a later stage in the
proceeding.
In my opinion the allegations literally fall short of
stating a claim upon which relief may be granted. It is
alleged that Voss, Isky, and Hoover , were "told" or
"informed" not to use certain pipe and fittings produced
by Reliable . "Told" while stronger than "informed" is of
lesser impact than "demand," and it has been held that
'Emphasis supplied.
'Emphasis supplied.
'Emphasis supplied.
'Emphasis supplied.
B. The Issues
1. Did Respondents or either of them engage in conduct
within the meaning of Section 8(b)(4)(i) and/or (ii)?
2. Was the conduct of Respondents or either of them
outside the purview of Section 8(b)(4)(B) in that the
objective was preservation of unit work or related to work
fairly claimable as unit work?
C. Background and Preliminary Findings
It is evident from the recent rash of cases coming
before the Board' that the problems involved in the instant
case are related to those currently arising in different
areas of the country. Although each situation may differ
in degree and factual content, it appears that all stem
from attempts by various construction locals affiliated
with the Sheet Metal Workers International Association
to secure compliance with Article VIII, Section 2 and 3 of
their labor agreements.'° Counsel for Respondents frankly
stated on the record that Respondents were desirous that
Feuer, a sheet metal contractor engaged in construction
work only, should install at the White Front construction
sites in Seattle and Tacoma only those sheet metal
products that were manufactured at construction wage
rates and conditions. The evidence showed and the parties
admitted that Reliable's products, including those
transported to Seattle and Tacoma were manufactured at
production wage rates and conditions." It was conceded
by all parties that sheet metal production wage rates and
conditions are inferior to those paid employees working
on sheet metal products at construction wage rates and
conditions. I so find.
D. 8(b)(4X i) and (ii)
1. The Testimony
Harry C. Voss testified that he was Feuer's general
superintendent, that he was responsible for Feuer's jobs
wherever located and that his duties were to coordinate
Feuer's jobs with other subcontractors and general
contractors, to arrange for competent men to be placed on
the jobs, and to see that each job progressed' to a
successful completion. Voss went to Seattle about June 28,
1967,': "prior to the job starting, and it was to coordinate
the job scheduling and to see when my men and my metal
would be needed up there and set up accounts." He made
a point to go both to Respondent 99 and Respondent 150
'Sperandeo v. Untied Brotherhood of Carpenters Local 515, 55 LRRM
2986 (D.C.Colo.)
'Of which I take this limited official notice.
"See G.C. Exhs 2A and 2B It was stipulated that these exhibits
constitute the current agreement between Feuer and Local 108, a sheet
metal construction local located in Los Angeles
"Reliable has a current labor agreement with Local No. 170, a
production local affiliated with the Sheet Metal Workers International
Association.
"All dates hereinafter refer to 1967 unless otherwise specified.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to "inform them of the requirements we would need for
men and the approximate time we would need them...."
At Respondent's 99 office on June 29 or June 30, Voss
met with Bill Croake and Glenn Arnold, business agents
of Respondent 99." Voss informed Croake and Arnold
that Feuer had work in Seattle, that the job would require
some men, and that Feuer's "general foreman" would be
John Isky.
Voss, on June 28, visited Respondent 150 and met John
Starke, the business manager of Respondent 150. His
conversation with Starke was similar to that with Arnold
and Croake except that he told Starke that Ray Hoover
was Feuer's direct representative on the Tacoma job. Voss
further identified Hoover as the "general foreman" on the
job for Feuer."
Voss testified that Reliable supplied approximately 95
percent of "round pipe and fittings" used by Feuer during
the past 4 years; that a common carrier had delivered a
cargo of material to the Seattle job; that the cargo
included a quantity of round pipe and fittings purchased
from Reliable; that about the latter part of August he had
several telephone conversations with Arnold. ' He told
Arnold that his job foreman informed him that Arnold
had been to the jobsite and stopped them from installing
the round pipe." Voss then asked Arnold what the
problem was and if there was any way they could work it
out. Arnold, according to Voss, replied that they
"wouldn't allow us to use that metal up there." There was
some further conversation, which Voss states was quite
vague in his mind, to the effect that the difference in wage
scale would have to be straightened out in Los Angeles
and that Feuer could not pay into the Union the
difference.
Voss had several later conversations with Arnold in
which Arnold said he had heard nothing from Los
Angeles which would warrant his consent to use Reliable's
products in Seattle." Voss finally asked Arnold what
procedures he would be required to follow. Arnold
explained that the procedure in Seattle was to install sheet
metal products manufactured at construction wage rates.
Voss thereupon authorized Isky to buy the needed round
pipe and fittings from one of the manufacturers who met
this test. As a result, Isky purchased products
valued at about $400 from Curtiss & Distributors. '
With regard to Tacoma, Voss testified that Starke
called Voss and asked where and from whom the round
pipe and fittings had been purchased. Voss informed
"Respondents ' counsel objected to evidence of the conversation between
Voss, Arnold and Croake on the ground that paragraphs 1-14, particularly
paragraph 13, of the complaint had been admitted I overruled the
objection in view of my previous ruling that the allegations of the
complaint established a sufficient basis for the taking of evidence
"Voss after the noon recess qualified his testimony saying that he had
"misworded" and then testified that Inky and Hoover were working
foremen.
"As I understand Voss' testimony he called from Los Angeles and
talked with Arnold who was in Seattle
"Although Voss' statement to Arnold as to what the foreman told Voss
is admissible , it does not constitute evidence of the truth of the statement
"From all the evidence it appears that the Los Angeles Local No 108, a
local with whom Feuer had a labor agreement was supposed to verify a
claim made by Reliable that it was paying construction wage rates This
claim , as will appear infra, was based on the fact that a single Reliable
employee received wages comparable to the construction wage scale The
parties, as noted above, stipulated that Reliable did not pay construction
wage rates.
"Evidence was adduced that Curtiss & Distributors manufactured these
items for construction contractors at construction wage rates under an oral
agreement with Respondent 99.
Starke that Reliable had manufactured the material and
that Reliable had a labor agreement with production
Local No. 170. Starke said that "they didn't approve of
that type of round pipe up there in that area." Starke said
that he did not see anything wrong with using the round
pipe already at Seattle as long as no more such material
was brought up. Voss agreed not to have any more sent
up.
About August 15, Voss called Starke and said that he
had received a call and been informed that "they had
stopped us from using the round pipe on the job.""
Starke, according to Voss, replied that Seattle had
stopped the use of Reliable products and both Tacoma
and Seattle were abiding by the same rules.2' Voss then
testified that when he authorized Isky to purchase the
metal locally, he also authorized Hoover, Feuer's
representative at Tacoma, to purchase the needed round
pipe locally. Thereafter Hoover also purchased round pipe
and elbows valued at approximately $400 from Curtiss &
Distributors." Voss also testified that some Reliable
fittings were used at Tacoma because they were
unobtainable from Curtiss & Distributors.
On further examination, Voss testified that Feuer for
the past 2 years purchased 95 percent of its round pipe
and fittings from Reliable and that it would be too costly
to manufacture some of the items in Feuer's establishment
because of lack of the modern equipment. However, some
items in this category were also manufactured by Feuer
but only when an emergency arose.
On cross-examination, Voss testified that Isky and
Hoover took up residence in the area for 4 1/2 months,
while the jobs were in progress and had full authority to
act as the representatives of Feuer subject only to their
judgment when they should consult with Voss on a
problem. Voss also testified, that at his first meetings with
Respondents' representatives he anticipated abiding by the
local conditions and working rules established in the
Seattle-Tacoma area. Although denying that these were
pre job conferences typical in the construction business, he
admitted that he was seeking to determine what, if any,
problems might arise and that he received copies of
Respondents' labor agreements. Finally, Voss conceded he
had no intention of departing from the accepted practices
in that area including the rules and conditions of the
locals involved. Voss acknowledged that a good sheet
metal worker can make any type of piping or fitting by
hand at the jobsite but that it was far more economical to
have machinery to manufacture such items. He admitted
that Feuer had machinery to make round pipe but that it
was still less costly to purchase round pipe elsewhere.
Stanley Feuer, vice-president of Feuer Corporation,
testified that he had a telephone conversation with Arnold
sometime between August 15 and 21; that he told Arnold
that he was told by Isky that the members of Local 99
who were working for Isky refused to install products
manufactured by Reliable because Reliable employed
"Again this statement though admissible is not evidence of the truth of
the matters contained therein
"I do not discredit Voss in this respect . However, even if Starke made
this statement to Voss in their telephone conversation , it seems to me that
Starke was using the word "stopped" in a general rather than specific
sense. Both Starke and Hoover , the actual persons involved , established the
actual circumstances under which Reliable products were not used.
Accordingly, I do not regard Voss' testimony in this regard as an
admission against interest by Starke
"Evidence was adduced that Reliable was billed for the sales both at
Seattle and Tacoma . I assume that this was a bookkeeping matter and that
Reliable was reimbursed by Feuer.
SHEET METAL WORKERS LOCAL 99
members of a production local rather than a construction
local; Arnold , according to Feuer, said that this was the
case and that the men had been instructed not to install
the pipe and fittings obtained from Reliable. On
cross-examination Feuer conceded that he could not recall
Arnold's exact wording but finally agreed that a prior
statement that he had given to a Board agent concerning
what Arnold said was correct . This statement , read into
the record , was as follows : "Arnold stated that they could
not allow their men to install the equipment since it was
not made by a Construction' Local.s2
John Isky testified that he has been a member of Local
108 since 1946; that he received a shipment of round pipe
and fittings from Reliable and that a portion of the
fittings were installed on the-: Seattle ' job, while the
remainder was returned ; that the remainder of the round
pipe and fittings was not used on the Seattle job because
he was told not to; that he could not remember who told
him not to use them ; that later Voss told him to purchase
some fittings elsewhere; that he hired three men from
Local 99 ; that Henry Vanderwel was the job steward; that
he talked with Croake and Arnold a number of times but
could not remember any of the conversations ; that he
worked with his tools about 25 percent of the time
possibly as high as 50 percent . It was clear that Isky was
an extremely reluctant witness seeking refuge in failure to
recollect . I find that Isky was requested by Arnold to
delay use of Reliable fittings-',on the Seattle job and
readily complied.
Ray J . Hoover testified that he has been a member of
Local 108 for approximately 18 years ; that he hired three
men from Local 150; that he received a shipment of round
pipe and fittings from Reliable at the Tacoma job and
installed some of them ; that he did not install the
remainder of Reliable pipe and fittings ; that he talked
with John Starke , business agent of Respondent 150 about
three weeks after commencing the job in July ; that Starke
said he wanted to check on the status • of the round pipe to
see if it were union made ;- that Starke, "asked me if I
would hold off putting it on until he got hold of my boss
in Los Angeles and found out about it;" that he agreed to
delay installation of the round--pipe ; that he wasn 't ready
to install it at that time , that about two weeks later
Starke renewed his request ,to hold off installation of the
Reliable material ; that he called Voss and Voss told him
to "hold off;" that he never asked the men on the job to
install Reliable fittings ; that later he purchased some
material from Curtiss .& Distributors ; that he met the
deadline at the Tacoma job and that Starke never asked
him not to use Reliable fittings . On cross-examination
Hoover testified that about 25 percent of his time was
spent in supervision , the remainder working with tools and
that he talked with Voss about the job about once each
week.
Glenn Arnold , business agent of Respondent 99,
testified that there was no work stoppage at the Seattle
jobsite involved herein and,-that there was no picketing;
that he saw the Reliable , fittings at the jobsite on his first
visit; that he checked with - Local 108 if it had a contract
with Reliable; that he - went back to the jobsite and that
after he learned from Isky it would take six weeks before
he would need the fittings , he asked Isky if he would delay
installation of this material until he had a chance to check
them out; that Isky said that it would be no problem; that
he talked with Block or someone from Reliable on two
occasions that in the second conversation he said that he
"I do not credit either version.
743
was only interested in the rate of pay received by the
employees who manufactured the fittings. On
cross-examination , Arnold conceded that he had given
Isky to understand that he did not wish Reliable material
installed because they were not made at construction rates
telling Isky that it was not the practice in Seattle ; that he
gave Isky the names of several manufacturers of round
pipe in the Seattle area whose employees were paid
construction rates ; that he told Voss that the practice in
Seattle was to use round pipe and fittings manufactured at
comparable construction wage rates and fringe benefits as
specified in the contract of Respondent 99.
John Starke testified that he was the business manager
of Respondent 150; that Voss paid him a visit in June and
that it was a friendly introductory visit ; that he learned
about -the Reliable round pipe and fittings at the Tacoma
jobsite about the second week in July ; that he talked with
Hoover and told Hoover he was going to "check out" the
Reliable material; that he talked with Voss and found out
that the Reliable material was manufactured at production
wage rates ; that he told Voss to forget about it but not to
bring any more up. Starke later learned about the Seattle
situation and talked with Hoover again . Starke told
Hoover of the promise made by Voss and Hoover replied
that actually the material was the wrong type and could
not be used. Starke said he still wanted Voss to call him.
Starke testified that no work stoppage or picketing
occurred at the Tacoma jobsite ; that he would not tolerate
a work stoppage and that he would not stop the
installation of any fittings at any time.
Samuel H. Block, president of Reliable , testified that
Reliable had a contract with Local 170, a production local
but had no agreement with Local 108, the Los Angeles
construction local." Block testified that he called and
talked with Arnold sometime in July; that he asked
Arnold what the problem was and that Arnold said he
"stopped the job because the furnace pipe and fittings that
we had shipped to Feuer were not made at construction
wages ." Block told Arnold some of his employees were
being paid construction rates or higher. Arnold then
requested Block to send him a letter proving this and he
would let them proceed with the job . Block later sent a
letter to Respondent 992' in which Block stated that
Reliable had employees being paid at the "journeymen"
scale who worked on the products being used by Feuer on
the White Front project that "you are threatening to
stop ."" On August 17, Block also wrote a similiar letter
to Respondent 150.36 Starke , on August 19, replied to
BlockT7 denying that there was any threat of a work
stoppage or that there was any intention to engage in one.
Starke closed by stating that he would like proof of the
wage rates Block claimed he was paying . Block also
testified that he had a telephone conversation with
Attorney Hafer , counsel for Respondents , about August
21, in which Hafer said he was "aware that they had
stopped the job because the pipe was not made at the
construction rates." Hafer suggested that if Local 108
checked Block' s payroll records and Block 's contentions
"The Trial Examiner excluded evidence proffered to show that in 1962,
Local 108 attempted to have Reliable set up a separate plant for
manufacture of round pipe and fittings at construction rates and recognize
Local 108 as the bargaining representative of such employees. I view this
evidence as irrelevant in this proceeding against Respondents 99 and 150.
"G.C. 11.
"I note that Block here contradicts his testimony in which he quotes
Arnold as saying that Arnold had "stopped" the job. P. 389 line 4.
"G.C. 12.
"G C 13.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were substantiated the problem would be solved.
Block, recalled as a rebuttal witness by the Charging
Party testified that there was no discussion in his
telephone conversation with Arnold of Respondent 99's
wages, hours and working conditions. Block also denied
that Arnold had said he wanted Local 108 to check
Reliable's payroll.28
2. Analysis and Conclusions
The evidence does not justify the classification of Isky
and Hoover as "working foremen," "straw bosses" or
"leadmen."29 Ordinarily such employees do not possess
sufficient indicia of supervisory status to warrant a
conclusion that they are supervisors within the meaning of
the Act.10 The evidence in this case showed that Isky and
Hoover were full fledged supervisors clothed with
authority to hire and fire. Indeed the progress of the job,
the planning of the job, and the actual completion of the
job was left entirely to their supervision and discretion
subject only to weekly telephone conversations with their
superior, Voss. Under these circumstances and because
they were the only Feuer representatives on the job, I
conclude that both Isky and Hoover qualify as supervisors
possessing managerial functions with relation to the work
being performed on their respective jobs." Accordingly I
find that Isky and Hoover are "individuals" possessing
managerial functions within the meaning of subsection (i).
When viewed in this light, consideration must be given
to whether the requests by Arnold and Starke to Isky and
Hoover to "hold off" installation of Reliable material
constituted an appeal to managerial discretion which is
lawful32 or an appeal to them as "individuals" within the
meaning of subsection (i) to cease performing duties in
order to force their employer, Feuer, to cease doing
business with Reliable, which is unlawful.
Unquestionably Isky and Hoover had complete
discretion under their respective managerial authority to
determine when round pipe and fittings should be
installed. The evidence showed that Isky and Hoover
coordinated their work with that of other subcontractors
on the job such as carpenters and plasterers. In doing so
Isky and Hoover could and did exercise discretion as to
what pipe should be installed at any given time.
Furthermore they could in the exercise of their judgment
decide on the priorities of their own work. By readily
agreeing to delay or "hold off' the installation of round
pipe and fittings they merely made a judgment decision in
their managerial capacity. Moreover, the evidence shows
that Voss, their immediate supervisor, approved of the
decisions reached by Isky and Hoover.31 I find under all
the circumstances, that Respondents in asking Voss, Isky
and Hoover to delay the installation of round pipe and
fittings were not attempting to induce or encourage them
to cease performing their duties but were asking them to
make a managerial decision which was within their
authority to make. Such an appeal under Servette, supra,
is not an unfair labor practice.
"I do not consider Block a creditable witness and I do not accept his
statements concerning Hafer 's and Arnold's admissions as credible
"I note that Voss initially referred to them as general foremen and
Feuer referred to Isky as a superintendent.
"Cf Quincy Steel Coast Co, 200 F.2d 293, 296 (C A 1).
"I do not consider the fact that they worked with tools a substantial
proportion of their time as negating their possession of managerial
functions
"Servette 377 U S. 46
"In fact on one occasion Voss told Hoover to hold off
I find no threat or coercion in any of the events which
caused Voss, Isky and Hoover to delay and eventually
displace the use of Reliable material. The General
Counsel and counsel for the Charging Party were
permitted extremely wide latitude in the cross-examination
of Isky, but failed to disclose any overt act or statement
to him by Respondent 99 which could be reasonably
construed as coercive or threatening. The isolated fact of
membership of Voss, Isky, and Hoover, in a local
affiliated with the same international as Respondents
hardly warrants a conclusion or inference that they were
subjected thereby to unlawful pressure or coercion.
The General Counsel would have the Trial Examiner
rely on an alleged telephone conversation testified to by
Voss in which Isky allegedly told Voss that Arnold had
come onto the job and stopped them from using Reliable's
material . The General Counsel then argues in his brief
that "the only logical inference is that Arnold or his
steward, Henry Vanderwel, or both, told Isky and the
other workmen not to install Reliable's products." I reject
the use of such hearsay evidence as the basis for an
inference which decides a crucial element against
Respondents . The standard of proof in unfair labor
practice cases whether against a labor organization or an
employer is identical. The General Counsel assumes the
burden of establishing by a preponderance of fairly
admissible and probative evidence the allegations of the
complaint. The evidence proffered above fails to meet this
test.
I regard Arnold as an extremely truthful witness,
careful to disclose the true facts even though such
disclosure could damage the defense. In his testimonial
account Arnold initially denied that he had told Block
that he had or would instruct members of Respondent 99
not to work on material manufactured by Reliable. In the
next breath, Arnold added that he honestly did not
remember whether he had said this. I do not draw an
inference or conclusion that in fact Arnold did make such
a statement to Block as I do not credit Block's testimony
in any of the crucial aspects.
Block, an obviously interested witness, was too eager to
submit conclusionary testimony to bolster a case against
Respondents. In his eagerness he repeatedly contradicted
himself as evidenced by written documents and his oral
testimony. As Block, for the purposes of this case under
the concept the Board follows in secondary boycott cases,
is regarded as the primary employer, inducement and
threats made to Block, cannot serve as the basis for a
finding of unfair labor practices under the sections of the
Act in issue herein. Nevertheless statements made to
Block by responsible agents of Respondents can be
considered as admissions upon which an unfair labor
practice could be found. However, as indicated above, I
have discredited Block because of apparent contradictions
in his testimony and because of his demeanor on the
witness stand. Accordingly, I do not rely upon any aspect
of Block's testimony. In discrediting Block, I rely upon
his demeanor and the fact that; (1) in his letters to Starke
and Arnold he attempted to convey to them that he was
paying construction wage rates, when he knew he was not;
(2) Block in his testimony attempted to convey the same
impression to the Trial Examiner, despite his knowledge
that the parties had stipulated otherwise; (3) Block
testified that he had not discussed with Arnold the wages,
hours and working conditions of Respondent 99. It seems
rather plain that these matters had to be discussed for
Block to have written the letters to Respondents that are
in evidence. Such discussion clearly constitutes the
SHEET METAL WORKERS LOCAL 99
predicate for the entire controversy; (4) Block's repeated
attempts to credit conclusionary admissions to Arnold and
Attorney Hafer to the effect, "we stopped the work" etc.
Feuer's testimonial account in the crucial aspects is
likewise not credited. Feuer reluctantly admitted he did
not remember Arnold's exact words and initially offered
statements which reflected his own conclusions. When
confronted with a previous statement given to a Board
agent, he attempted to evade the question but finally
admitted it was correct. Feuer, at the hearing also
attempted to arrogate to himself the determination of the
admissibility of evidence and the interpretation to be
placed on certain words and phrases. I conclude Feuer
was seeking to promote what he considered his own
interests rather than to render an honest and truthful
testimonial account.
Starke strenuously maintained that he would not
tolerate any interference with the-job regardless of whose
products were installed. I fully credit Starke as he
impressed me with his sincerity. His immediate response
to Block's written insinuations comports with the attitude
of honesty he conveyed as a witness.
I find that the General Counsel has failed to prove by a
preponderance of the probative evidence that Respondents
individually or jointly have engaged in conduct within the
purview of subsection (i) or (ii) of Section 8(b)(4).
I conclude that Respondents' conduct in the events
described above constituted- attempts to explain to Feuer,
Voss, Isky and Hoover, the rules and conditions prevailing
745
in the Seattle and Tacoma areas .'° Feuer and Voss
testified that they had orally agreed to abide by the local
rules and conditions and had no intention of departing
from them . I find that Feuer's agents voluntarily complied
with their oral agreement and the terms of their written
agreement with local 108 which is identical in the
significant aspects to Respondents ' labor agreements.
Under the foregoing circumstances , I do not find that
Respondents violated 8 (b)(4)(B) as alleged.
In view of my findings above , I do not reach the
question of whether the work involved in this case is fairly
claimable unit work which Respondents may justifiably
seek to preserve , or whether the work pursuant to the
contract clauses involved herein are designed to benefit
union members generally . Nor was this posed as an
independent question under Section 8(e) of the Act. In
fact the General Counsel disclaimed any attack on the
legality of the provisions of the standard labor agreement
to which Feuer admittedly was a party.
Upon all the evidence and the foregoing findings of fact
and conclusions and upon the entire record in this
proceeding , I find that the General Counsel has failed to
prove by a preponderance of the evidence any of the
allegations of the complaint. Accordingly, it is
recommended that the complaint in Case 19 -CC-349 be
dismissed and is hereby dismissed in its entirety.
"Undoubtedly Respondents' appraisal of the prevailing rules and
conditions were not as well established as they wished.