Sheet Metal Workers' Local 80

National Labor Relations Board - Board Decisions

May 15, 1978

236 N.L.R.B. 41 (N.L.R.B. 1978)

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George Respondent
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CHAIRMAN PENELLO
3(b)
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' Admin~s-
w ~ t h credib~lity
WaN Producrs. Inc.,
(1950). F.2d 1951). exam~ned
ALMIRA
consolidat-
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&
jobsite Westland jobsite
$50,000
&
2(2), (6),
11.
2(5)
111.
agree-
4 SHEET METAL WORKERS LOCAL 80
Sheet Metal Workers Local 80, Sheet Metal Workers'
International Association, AFL-CIO and
d/b/a Sise Heating Cooling Company.
Cases 7-CC-9 18 and 7-CC-967luded
been May 15, 1978
DECISION A N D ORDER
BY FANNING AND MEMBERS
AND TRUESDALE
On February 8, 1978, Administrative Law Judge
that Almira A. Stevenson issued the attached Decision in for
this proceeding. Thereafter. Respondent filed excep-con-
tions and a supporting brief.
' the
Pursuant to the provisions of Section of the
the National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
lack The Board has considered the record and the at-
ther tached Decision in light of the exceptions and brief
lure and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to for
adopt her recommended Order. of

hat

ind
ORDER

he

Pursuant to Section
of the National Labor
hat Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
on Order of the Administrative Law Judge and hereby
a orders that the Respondent, Sheet Metal Workers
Local 80, Sheet Metal Workers' International Associ-
ation, AFL-CIO, its officers, agents, and representa- he
tives, shall take the action set forth in the said recom-
mended Order. at,
Respondent excepts to certain credibility findings made by the
trative Law Judge. I t is the Board's established policy not to overrule an
Administrative Law Judge's resolutions
ite
respect to unless the
SS clear preponderance of all the relevant evidence convinces us that the reso-
lutions are incorrect. Standard Dry 91 NLRB 544
enfd. 188 362 (C.A. 3, We have carefully the
record and find no basis for reversing her findings.
DECISION
BBOT STEVENSON. Administrative Law Judge:
These consolidated cases were heard in Detroit, Michigan,
December 5, 1977. The charge in Case 7-CC-918 was filed
July 22, 1976, and served on the Respondent Union July
23, 1976; the charge in Case 7-CC-967 was filed October
3, 1977, and served October 4, 1977. An order
cases, consolidated complaint, and notice of hearing
was issued October 11, 1977, and was duly answered by the
Union.
Upon the entire record, including my observation of the
demeanor of witnesses, and after due consideration of the
arguments of counsel and the iled by the Respondent
Union, I make the following:
I. JURISDICTION
Charles R. Otto is an individual proprietor doing busi-
ness as Charles Otto Builder, with an office and principal
place of business in Mt. Clemens, Michigan. He is a gener-
al contractor engaged in the Detroit Metropolitan area in
the construction of homes, apartment buildings, and com-
mercial structures.
George W. Sise doing business as Sise Heating Cool-
ing Company, the Charging Party, is an individual propri-
etor engaged in the installation and servicing of heating
and cooling units in commercial and residential buildings.
His office and principal place of business is in East Detroit,
Michigan.
Charles Otto Builder has been engaged as the general
contractor in the construction of an apartment house proj-
ect in Harrison Township, Michigan, and a shopping cen-
ter in Westland, Michigan. The Charging Party, and other
contractors, performed subcontract work at the Harrison
Township in 1976 and the in 1977.
The parties stipulated that in each of the years ending
July 15, 1976, and December 31, 1976, the Charging Party
engaged in interstate commerce on the basis of
inflow. The record shows that the Charging Party em-
ployed at least three employees during the periods material
herein. Accordingly, I find that the Charging Party, George
W. Sise d/b/a Sise Heating Cooling Company is an
employer and a person engaged in commerce or in an in-
dustry affecting commerce within the meaning of Section
and (7) of the National Labor Relations Act, as
amended.
LABOR ORGANIZATION
The Respondent Union is a labor organization within
the meaning of Section of the Act.
UNFAIR LABOR PRACTICES
A. Settlement Agreement
Case 7-CC-918 was the subject of a settlement agree-
ment, containing a nonadmissions clause, entered into by
the Respondent Union and the Charging Party Sise Heat-
ing & Cooling Company and approved by the Regional
Director November 8, 1976. That case was subsequently
closed on compliance by the Regional Director, and the
United States District Court for the Eastern District of
Michigan, on February 10, 1977, issued an order dismiss-
ing proceeding for temporary injunction. On October 1 I,
1977, the Regional Director, in the complaint and notice of
hearing herein, vacated and set aside the settlement
litigable wlth
7-CC-967;
com-
mittin$
d i~ tu rbed ,~
jobsite
jobsite
8(b)(4)(i) (ii)(B)
Westland
8(b)(4)(i)
(ii)(B)
(1944).
Utrad Corporalion, (1970).
' Calihrnia Cauncil oj Hodcarrierr
of AFL-CIO, el a/. Sr.. Indi~~rduul, d / b / a
Joreph's Landscaping 154 F.2d 721
(Laurens 172
2019.
&
Westland
4:30
&
left.' July
80."
follow^:^
good 1
&
! credlted
of conversation
Otto aff~rmed
vaned
wlthin
until
Slse testifled. corroborat~on of
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. The Respondent Union contends that that case (I) is
not because the Union has complied its
terms, as attested to by the Regional Director's action clos-
ing the case on compliance and the court's dismissal of the
temporary restraining order, and because over a year
elapsed between the alleged presettlement violation and
the alleged post settlement violation covered by the charge
in Case and (2) in the alternative, evidence re-
garding the old alleged violation is not relevant in de-
termining the Respondent Union's object in the course of
the new alleged violation because of the passage of time
and changed circumstances. I find no merit in these con-
tentions.
The Regional Director's authority to set aside a settle-
ment agreement upon a party's violation thereof by
lished.
subsequent unfair labor practices is well estab-
Although the Board has indicated there may be
some time limit beyond which settlement agreements will
not be I do not believe the Board has ever held
that the mere closing of a case on compliance, the dismissal
of a temporary injunction, or the passage of about 14
months holds a party harmless from its commitments as-
sumed in its settlement agreement. I therefore find that the
Regional Director's action in vacating and setting aside the
agreement was reasonable, and within the scope of his au-
thority.
As for the Respondent's second contention, it is clear
that evidence regarding presettlement conduct is admissi-
ble and relevant, although not determinative, to show the
Respondent's motive or object in connection with its post-
settlement conduct alleged to be an unfair labor practice?
B. Issues
I . Did the Respondent Union picket the Harrison
Township on and after July 20, 1976, and threaten
Charles Otto Builder on July 22, 1976, thereby inducing
employees of Charles Otto Builder and other subcontrac-
tors on the to cease work, with an object of forcing
Charles Otto Builder and other subcontractors on the job-
site to cease doing business with Sise Heating & Cooling
Company in violation of Section and of the
Act?
2. Did the Respondent Union picket the job-
site on and after September 30, 1977 with the same result
and with the same object, in violation of Section
and of the Act?
As indicated, Charles Otto Builder was the general con-
tractor of an apartment house project at Harrison Town-
' The Wallace Corporation v. N.L.R.B.. 323 U.S. 248

'See
185 NLRB 434, 441 where a 5-year-old
settlement agreement was found too remote in the circumstances.
Norrhern District and Common Laborers
America, (Joseph Mohamed, an
Service), NLRB 1384 (1965). enfd. 389
(C.A. 9. 1968); Mohasco Industries, Inc. Park Mill). NLRB
1968.

Except where specifically discussed, the facts are undisputed.

ship, Michigan, from about June until early November
1976, and of a shopping center project at Westland, Michi-
gan, from May or June until November 1977. Charles Otto
Builder subcontracted such work as bricklaying, plumbing,
electric, cement, glass, and carpentry. Heating and cooling
system work on both sites was subcontracted to the Charg-
ing Party Sise Heating Cooling Company. The Respon-
dent Union had no dispute with Charles Otto Builder nor,
as far as the record shows, did it have any dispute with any
of the subcontractors except the Charging Party, Sise. Sise
is a nonunion employer, employing sheet metal workers. It
began work at the Harrison Township site about July 12,
1976, and at the site around September 21 or 22.
1977.
The Harrison Township site had two entrances, one on
Shoreline Drive and one on South River Road. All employ-
ees worked at the site from about 8 a.m. until p.m.
About a week after Charging Party Sise began work, Mar-
tin Tibbs, business representative of the Respondent
Union, appeared at the site and inquired of Lonny Sise;
son of the owner and employee of Sise Heating Cooling
Company, whether he was affiliated with the Sheet Metal
Workers Union. Sise said he was not. Tibbs asked the
name of the Company and, when Sise gave him the name,
Tibbs handed a business card to Sise and About
19, 1976, pickets appeared at both entrances with signs
reading, "Notice to the Public, Sise Heating and Cooling
does not pay the prevailing wages or fringes established for
this area, Sheet Metal Workers International Association,
Local
The day after the pickets appeared, a conversation took
place between Charles Otto and Martin Tibbs at the front
entrance on South River Road. I credit Otto's version of
the conversation, as
I asked Tibbs how I could resolve this, is there anyway
Sise could finish this job, or did I have to get a union
contractor. Tibbs said the Heating and Cooling Bu-
reau could recommend a lot of contractors.
asked if it would be one who wouldn't rip me off and
he said that they would probably give me a better
price than Sise. I said, could Sise do it, and I would
promise to use a union contractor next time, but Tibbs
didn't answer. I said, I would talk it over with Sise and
left.
Charging Party Sise posted signs at the entrances, the
sign on the side entrance at Shoreline Drive reading, "This
gate reserved for Sise Heating Cooling employees and all
other ones use front entrance"; and the sign at the front
entrance on the South River Road reading, "Everyone but
Sise Heating is to use this entrance."
Based on the testimony of Tibbs who appeared to have a more
precise recollecuon the than Sise.
Charles his pretrial affidavit, made shortly after the con-
versation took place. to this effect. The accounts given by Tibbs and by Otto
Foreman Donald Houghton somewhat, but Tibbs' memory seemed
to have dimmed, and Houghton conceded he was not present during the
enure conversation. Although I believe Lonny Sise was earshot for at
least part of the conversation. I d o not believe Tibbs made a direct threat to
picket until Sise got off the job or Otto got a union subcontractor. as
In the absence of by the representauves the
general contractor. I cannot credit Sise in this respect, although. in my
opinion. as explained below, the effect was the same.
WO IRKERS
&
7-2&76
SlSE
430PM
&
3:30
&
Westland jobsite,
&
THIS
SITE WESTLAND
W I N G IN.
STALLATION
SAM IN
WITH
SlSE
7:30 7:45
2:30 3:30
' corrobora!ive test~mony Lonny S ~ s e Don-
rlJ polnt
hr ~ncons~stent w ~ t h Martln T~bbs' hc
work budding ccnfined
I I U ) picketing T ~ b h s
hlrur~ce Roth that del~vered. mater~als.
i.e..
& Westland
situs
situs
situs."
Although h n n y
Westland
in-his-van, ~ i b b s
Westland
Sise's
coverup
S ~ s e tlmes
13. dajtlrne
LOCAL 80SHEET METAL 43
On July 21, 1976, Sise Heating Cooling Company sent
the following mailgram to the Respondent Union:
YOU HEREBY NOTIFIED AS OF THE OBJECT OF YOUR PICK-
ETING AT THE APARTMENT COMPLEX ON SOUTH RIVER ROAD IN
HARRISON TOWNSHIP NAMELY THE HEATING AND COOLING
COMPANY HAS BEEN ASSIGNED BY THE BUILDER TO WORKING
AFTER EVENINGS AND ON WEEKENDS IF NECESSARY U N T I L
FURTHER NOTICE IN ADDITION W E WlLL BE USING THE RESERVE
GATE FOR ALL INSTANCES AND EXITS.
From then until it completed work on the project in Sep-
tember 1976, Sise Heating Cooling Company worked
only during the periods specified in its mailgram. The pick-
eting nevertheless continued for about 3 weeks, during the
same hours as before, 8 a.m. until p.m. weekdays only,
at both gates, and no one else worked on the project while
the picketing continued. Sise Heating Cooling Company
left no supplies, materials, tools, or equipment on the site
while it was not present. The Respondent Union has not
inquired of Sise concerning the wages, hours, or fringe ben-
efits of its employees.
At the a year or so later, Tibbs ap-
peared shortly after Charging Party Sise began working
there, asked Foreman Houghton who was doing the heat-
ing and cooling, and Houghton told him Sise was doing it.
A day or two afterwards, on September 30, 1977, pickets
began picketing on the sidewalk in front of the building
with signs reading,
Notice to Public, Sise Heating Cooling does not
have a labor agreement with Sheet Metal Workers Lo-
cal 80. SMWIA. Local 80.
On the same day, Charging Party Sise sent a mailgram to
the Respondent to the following effect:
NOTIFICATION IS IN REFERENCE TO THE CHARLES AUTO JOB
LOCATED AT 7060 WAYNE ROAD MICHIGAN. THE
SlSE HEATING AND COOLING COMPANY W H O IS THE
OF THE HEATING AND COOLING SYSTEM WlLL ONLY
BE WORKING THE FOLLOWING HOURS SATURDAY AND SUNDAY
STARTING AT A N D WEEK DAYS STARTING FROM 5PM AC-
CORDANCE T H E NATIONAL LABOR RELATIONS BOARD REG-
ULATION. YOU WlLL BE EXPECTED TO CONFINE YOUR ACTIVITIES
TO THOSE TIMES WHEN THE HEATING AND COOLING COMPA-
NY IS ON THE JOB
No reserve gate notices were posted at this site.
The job shut down for about a week. Then Sise began
working evenings and Saturdays only, as stated in the mail-
gram. but the picketing continued from or a.m.
until or p.m., as before. Pickets were present Sat-
urdays, either walking or sitting in cars nearby, but not
during weekday evenings.
Charging Party Sise left no tools. supplies, materials. or
equipment on the site after sending the mailgram excep!
for some scrap metal.'
Rased on substantially of and
Houghton. I do not construe Charles Otto's testimony on tnis to
overall theirs. testimony that saw duct
on the floor in the ready to be installed was to the
the began. September 30. Testimony of and picket
Sise or took away, sheet metal and
Lonny Sise visited the job on several occasions during
daytime weekday hours and took pictures or sat in his van.
Employees of other subcontractors subsequently began
returning to work during regular daytime weekday hours,
and about October 13, at Otto's request, Sise also resumed
working regular hours. The pickets were withdrawn a week
or so later.
D. Conclusions
The Respondent Union contends that the picketing
which occurred at both sites conformed with the require-
ment of Sailors' Union oj the Pacific, AFL (Moore Dry Dock
Company), 92 NLRB 547 (1950). was primary in nature,
and therefore lawful. The record shows, however, that the
picketing met only one of the Moore Dry Dock standards at
both sites; the picket signs disclosed clearly that the
Respondent's dispute was with the primary employer, Sise
Heating Cooling Company. At the picketing
also met another of the standards, which requires that it be
limited to places reasonably close to the location of the
of dispute. Thus, no reserve gate was set up for Sise
employees at Westland, and the front of the building,
where the pickets walked, was reasonably close to Sise. I
find, however, that the standards were not met in any other
respect. Thus, the picketing continued at the front entrance
to the Harrison Township site despite the signs reserving
that gate for non-Sise employees and reserving the side
entrance for Sise employees only.
Moreover. the picketing was not "strictly limited to
times when the of dispute [was] located on the second-
ary employer's premises," or at time when "the primary
employer [was] engaged in its normal business at the
Despite the mailgrams setting forth the times Sise employ-
ees would be engaged at the site, the picketing continued at
other times when, the facts establish, Sise employees were
not working. one such employee, Sise, ap-
peared at or near the site on several occasions
during regular hours on weekdays, he only took pictures or
sat and business representative conceded
that no work was performed. 1 have also found that no Sise
supplies, materials, tools, or equipment were left on the
Harrison Township site, and that none were left on the
site. other than scrap, after the day picketing be-
gan. during periods when Sise employees were not work-
ing.
The above evidence of failure to meet most of the
Board's standards is sufficient in my opinion to compel the
conclusion that the Respondent Union was not pursuing a
lawful objective. There is further support for the General
Counsel's contention in this respect with regard to the Har-
rison Township site in the signs which the pickets carried
there proclaiming the Union's purported concern for
failure to pay prevailing wages or fringe benefits. That the
Union never asked what wages and fringe benefits Sise was
paying indicates that the Union was not concerned about
these matters but that they were merely a to dis-
guise a different, unlawful, objective.
that Roth observed a mployee working I day. clearly referred lo
after October when Sise resumed weekday work.
Westland
Westland jobsite
jobsites
&
8(b)(4)(i) (ii)(B)
c ~ m p l a i n t . ~
meanlng
8(b)(4)(i) (ii)(B)
1qc)
AFL-
6 Los Angeles & Construclion
(1975), F.2d
Lafoyerre Comlruction Counctl, (Texa-
co, Inc.), (1969). enfd. F.2d
Local ofJourneymen of'the
Pipefitting ofthe
& Inc.), 17 1 1 (1968);
Amerrca,
et
the
eiceptlons Sec.
Natlonal Relat~ons f~ndings.
hereln prov~ded In Sec.
notice.I0
11s f~ndings. conclu~ions,
that th~s 1s Un~ted
Relat~ons
Un~ted
Nauonal Lahor Relat~ons
&
44 DECISIONS OF NATIONAL
Although the signs were changed for the pick-
eting, and the pickets did appear at that site on Saturdays
when only the Sise employees were working, these changes
were not enough in my opinion to support the Union's
contention of lawful primary picketing there in view of the
preponderance of evidence to the contrary.
Viewing the remarks Tibbs made to Charles Otto on July
20, 1976, in the entire context detailed above, I find that his
responses to Otto's inquiries constituted an implied threat
to continue picketing until Sise was removed from the job
and replaced by a union subcontractor.
On the basis of the foregoing evidence and the record as
a whole, I conclude that the Respondent Union picketed
the Harrison Township on and after July 20, 1976, threat-
ened Charles Otto Builder July 20, 1976, and picketed the
on and after September 30, 1977. thereby
inducing employees of Charles Otto Builder and other sub-
contractors on those to cease work, with an object
of forcing Charles Otto Builder and other subcontractors
to cease doing business with Sise Heating Cooling Com-
pany, in violation of Section and of the
Act, as alleged in the
Having found that the Respondent Union has engaged
in unfair labor practices within the of Section
and of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative ac-
tion including the posting of notices.
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record, and pursuant to
Section of the Act, I issue the following recom-
mended:
ORDER
The Respondent Union, Sheet Metal Workers Local 80,
Sheet Metal Workers' International Association,
CIO, its officers, agents. and representatives, shall:
1. Cease and desist from engaging in, or inducing any
individual employed by Charles Otto Builder or any other
person engaged in commerce or in a business affecting
Building Trades Council, AFL- CIO (Silver
View Associates), 216 NLRB 307 affd. 530 1093 (C.A.D.C.,
1976); Building and Trades AFL- CIO
176 NLRB 979 4 4 5 495 (C.A. 5, 1971); Plumbers
Union No. 519, United Association and Apprentices
Plumbing and Industry United States and Canada, AFL- CIO
(H. L. Robertson Associates, NLRB 25 Northern Cali-
fornia District Council of Hodcarriers and Common Laborers of
AFL-CIO, al. (Joseph's Landscaping Service), supra. The cases to which
the Respondent has called my attention are. in my opinion, quite different
from facts in this case.
In the event no are filed as provided by 102.46 of the
Rules and Regulations of the Labor Board, the
conclusions, and recommended Order shall, as
LABOR RELATIONS BOARD
commerce to engage in, a strike or a refusal in the course of
his employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials.
or commodities, or to perform any services, or threatening,
coercing, or restraining Charles Otto Builder or any other
person engaged in commerce or in a business affecting
commerce, with the object of forcing Charles Otto Builder
or any other person to cease doing business with Sise Heat-
ing & Cooling Company.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Post at its business office and meeting halls copies of
the attached Copies of said notice, on forms pro-
vided by the Regional Director for Region 7, after being
duly signed by the Respondent Union's representative.
shall be posted by the Respondent Union immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily post-
ed. Reasonable steps shall be taken by the Respondent
Union to insure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
102.48 of the Rules and Regulations. be adopted by the Board and become
and Order, and all objections thereto shall he
deemed waived for all purposes.

"'In the event
Order enforced by a Judgment of a
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Board" shall read "Posted Pursuant to a
Judgment of the States Court of Appeals Enforcing an Order of the
Board."
APPENDIX
NOTICE TO MEMBERS

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government
WE W ILL NOT engage in, or induce any individual
employed by Charles Otto builder or any other person
engaged in commerce or in a business affecting com-
merce to engage in, a strike or a refusal in the course
of his employment to use, manufacture, process, trans-
port. or otherwise handle or work on any goods, arti-
cles, materials, or commodities, or to perform any ser-
vices, or threaten, coerce, or restrain Charles Otto
Builder or any other person engaged in commerce or
in a business affecting commerce with the object of
forcing Charles Otto Builder or any other person to
cease doing business with Sise Heating Cooling
Company.