Technical Engineering Div., U.A. Local 130

National Labor Relations Board - Board Decisions

Jun 21, 1973

204 N.L.R.B. 348 (N.L.R.B. 1973)

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Technical Engineering Division , Local Union 130,
U.A., AFL-CIO and National Survey Services, Inc.
Case 13-CC-762
June 21, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On March 19, 1973, Administrative Law Judge
Gordon J. Myatt issued the attached Decision in this
proceeding. Thereafter, the Respondent Union filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light o the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, The Technical Engineering
Division, Local Union 130, U.S., AFL-CIO, North-
lake, Illinois, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd . 188 F.2d 362 (C A. 3) We have carefully examined the record and find
no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge: Upon a
charge filed August 21, 1972,' by National Survey Services,
Inc. (hereinafter called National Survey) against The Tech-
nical Engineering Division, Local Union 130, U.A., AFL-
CIO (hereinafter called the Union), a complaint and notice
of hearing was issued by the Regional Director for Region
i Unless otherwise indicated , all dates herein refer to 1972
13 on September 12. The complaint alleged, inter alia, that
W. E. O'Neil Construction Company and Sinclair Con-
struction Company (hereinafter called O'Neil-Sinclair) were
a joint venture operating as general contractors on a con-
struction project in Northlake, Illinois. It was further al-
leged that National Survey and Economy Mechanical
Industries, Inc. (hereinafter called Economy), were subcon-
tractors on the project. Substantively, the complaint alleged
that the Union induced and encouraged employees of Econ-
omy to refuse to work on the project in order to force
O'Neil-Sinclair to cease doing business with National Sur-
vey in violation of Section 8(b)(4)(i)(B) of the Act. The
complaint also alleged that the Union threatened, coerced,
and restrained O'Neil-Sinclair to cause the joint venture to
cease doing business with National Survey in violation of
8(b)(4)(ii)(B) of the Act. The Union's answer admitted cer-
tain allegations of the complaint, denied others, and specifi-
cially denied the commission of any unfair labor practices.
This case was tried before me in Chicago, Illinois, on
October 26. All parties were represented by counsel and
were afforded full opportunity to be heard and to introduce
relevant evidence bearing on the issues. Briefs were received
from all counsel and considered by me in arriving at my
decision in this case.
Upon the entire record herein,2 including my evaluation
of the testimony of the witnesses based upon my observa-
tion of their demeanor and upon consideration of the credi-
ble relevant evidence, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
W. E. O'Neil Construction Company and Sinclair Con-
struction Company are a joint venture acting as the general
contractor for the construction of a warehouse in North-
lake, Illinois , for Montgomery Ward and Company. O'Neil
is an Illinois corporation which, during the course and con-
duct of its business operations, performed services valued in
excess of $35 million in the past calendar year. Of this
amount, services in excess of $1 million were performed in
states other than the State of Illinois.
National Survey is an Illinois corporation engaged in the
business of rendering engineering and land surveying serv-
ices . During the calendar year, National Survey performed
services valued in excess of $425,000. Of this amount, serv-
ices valued in excess of $50,000 wre performed in states
other than the State of Illinois.
On the basis of the foregoing, I find that O'Neil-Sinclair
and National Survey are employers as defined in Section
2(2) of the Act engaged in commerce and in an industry
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
The Technical Engineering Division, Local Union 130,
U.A., AFL-CIO, is a labor organization within the meaning
2 The record includes the transcript of the 10(1) proceedings in the United
States District Court for the Northern District of Illinois (Case 72-C-2199).
The court refused to grant the injunction requested by the Regional Director
204 NLRB No. 70
TECHNICAL ENGINEERING DIV., U.A. LOCAL 130 349
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
O'Neil-Sinclair are members of the Building Construc-
tion Employers Association of Chicago, Inc., and, as such,
are parties to a collective -bargaining agreement with the
Chicago • and Cook County Building and Construction
Trades Council, of which the Union herein is a member.
The collective-bargaining agreement between the Employer
Association and the Council contains a provision requiring
the employer members to use contractors and subcontrac-
tors who are parties to a collective -bargaining agreement
with a union member of the Council on all of their projects.3
On July 9, 1964, the Acting Regional Director for Region
13 certified the Union as the exclusive collective-bargaining
representative of the employees of National Survey in an
appropriate bargaining unit. National Survey took issue
with the certification and was charged with refusing to bar-
gain with the Union. The Board subsequently found that
National Survey unlawfully refused to bargain with the
Union,4 and the Board's Order was enforced by the United
States Court of Appeals for the Seventh Circuit.5 At the time
of the dispute involved in this case , National Survey was not
a party to any collective- bargaining agreement with the
Union.
B. The Events at the Northlake Jobsite
National Survey was hired by O'Neil-Sinclair on July 31
to perform survey work for the purpose of laying storm
drains and sewers. Economy was also a subcontractor on
the project and was hired to install the pipes and drams 6
National Survey's crew reported to the jobsite on July 31.
On August 1 Langhamer, business agent for the Union,
came to the jobsite and spoke to O'Neil-Sinclair's project
manager and project superintendent in the office trailer.
The project manager was Bilynski and the project superin-
3 The pertinent provision provides as follows
Article 111, Section 3 The parties recognize the importance of having all
work performed in a satisfactory manner by competent craftsmen. Be-
cause the unions affiliated with the Council have through apprenticeship
and other training programs consistently striven to create an adequate
supply of such skilled workmen , and because it is desirable that the
unions continue to do so, the Association, for itself and for each member
whom it represents agrees, to the extent permitted by law, that it will
contract or subcontract any work to be done at the site of the construc-
tion, alteration , painting , or repair of a building , structure , or other
work, only with or to a contractor who is a party to a collective-bargain-
ing agreement with a union affiliated with the Council and, accordingly,
is bound by all the terms and provisions of this Standard Agreement
4 National Survey Service, Inc, 151 NLRB 783
5 N L R B v National Survey Service, Inc, 361 F 2d 199 (C A 7, 1966)
6 Economy had a collective- bargaining agreement with the Respondent
Union Its superintendent on the project , Wilson , was a member of the
Union Economy employed members of several crafts to perform the work,
i.e., operating engineers and laborers. Its technical engineer , who was respon-
sible for laying the "line and grade" for the installation crew, was also a
member of the Union
tendent was Wismar. Langhamer complained about O'Neil-
Sinclair using a nonunion surveying firm on the project. He
told them that the employment of National Survey violated
the terms of the collective-bargaining agreement with the
Council. While Langhamer was there, Bilynski placed a call
to Raimondi, president of National Survey, and asked if the
facts stated by Langhamer were true. Raimondi verified
that he had no contract with the Union. During the course
of this telephone conversation, Langhamer got on the line
and asked Raimondi if he were now willing to sign a con-
tract. It is apparent from what followed that Raimondi re-
fused to accede to Langhamer's request.
Langhamer reminded Bilynski and Wismar that they
were members of the Employer Association and were re-
quired to hire union subcontractors on the project. Bilynski
asked Langhamer for the names of surveying firms who
were parties to a contract with the Union and the business
agent gave him several. The conversation concluded with
Bilynski stating that he would refer the matter to his home
office in Chicago.
On August 2, Langhamer returned to the jobsite to ask
Wismar what had been done about getting a union survey-
ing firm on the project. Wismar repeated that the matter had
been referred to the home office, and Langhamer again
reminded him that O'Neil-Sinclair was a member of the
Employer Association and obligated to comply with the
terms of the collective-bargaining agreement with the Coun-
cil.
On that same date a crew from National Survey was
working on the project. The crew or party chief was Mike
Nikolich. During the course of the day, Nikolich worked
with the technical engineer, Wayne Donofrie, employed by
Economy. Donofrie laid out stakes and markers used by the
National Survey crew in order to lay out a sewer. While they
were working Nikolich identified himself as an employee of
National Survey.
On August 4, Langhamer again came to the O'Neil-Sin-
clair trailer. Wismar testified that Langhamer stated he had
been patient, but if no action were taken regarding National
Survey he would speak to the business agents of the other
trades on the project about shutting the job down the fol-
lowing week. According to Wismar, a call was made by
Bilynski to the executive director of the Employer Associa-
tion to get his interpretation of the requirements of the
contract. He was unable to get through to the executive
director, but left a request for him to return the call. Lang-
hamer then left the O'Neil-Sinclair trailer and went to the
trailer of Economy.
Langhamer denied telling Bilynski or Wismar that he
would speak to the other business agents on the project and
that he threatened to shut the job down the following week.
He stated that after a call was placed to the executive direc-
tor of the Employer Association he left the trailer and was
called back when a return call was received. According to
Langhamer, the executive director agreed with his interpre-
tations of the contract and so informed Bilynski.
It is not clear on this record as to whether Langhamer
then left the trailer and then spoke to Donofrie or whether
he spoke to him before going into the O'Neil-Sinclair office
trailer. There is testimony, however, that Langhamer met
Donofrie that morning and informed him that a nonunion
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surveyer was on the project . Donofrie testified that he then
decided he was going to leave the project because he would
not work with nonunion people .' Donofrie notified Wilson,
Economy 's superintendent , of his decision to leave . Wilson
and Donofrie then went to Economy 's trailer and spoke
with Langhamer . Wilson testified that he questioned Lang-
hamer about the situation and informed him that Donofrie
was going to leave the job. According to Wilson and Dono-
frie , Langhamer asked the employee to stay around and
work . Donofrie agreed to stay for a short period of time to
see if the situation would be straightened out. He informed
them that he still intended to leave the project, if changes
were not made . He left the project approximately an hour
and a half later.
That evening , Wilson informed his crew that they had run
out of line and grade because Donofrie left the project.
When the employees inquired as to the reason for
Donofrie 's leaving, Wilson told them that National Survey
was a nonunion firm . Wilson then asked the employees,
would they work on a project with a nonunion firm? The
employees , according to Wilson , replied , no. Wilson told
them there would be no work the following week, and to
wait until he contacted them about returning to the job.
When questioned as to why he left the Northlake project,
Donofrie stated that it was against his convictions to work
with a nonunion surveying firm . Although he was aware
that National Survey was a nonunion firm when he worked
with the crew on August 2, he continued working because
he felt the work being performed was not within his jurisdic-
tion. He also stated that he wanted time to think the matter
over . He decided that if he saw the National Survey crew
on the project after Wednesday (August 2 ) he would take
some action.
Sometime about midday, Nikolich was sitting in his auto-
mobile on the jobsite making some calculations. Langhamer
came up to him and said , "tell your Raimondi you can't
work here anymore ." Nikolich asked Langhamer to call
Raimondi and tell him what he had stated to the employee.
Langhamer indicated he would do so.
On August 7, Bilynski called Raimondi and told him
National Survey 's services were no longer needed on the
project . Raimondi testified that Bilynski indicated that he
was being pressured into taking this action . He asked Rat-
mondi to have his crew appear on August 8 for a half day
in order to assist the new surveying firm in taking over the
work.
That same morning when the National Survey crew ar-
rived at the jobsite, the party chief was Vittorini. He went
to Economy 's trailer to ask Wilson to move some equipment
from the lot line. According to Vittorini, Wilson stated that
he was not an operating engineer and he refused to move
the equipment . He told Vittorini there were no operating
engineers on the job . He stated that his technical engineer
and other employees had walked off the job because Na-
tional Survey did not have a contract with the Union.
There was never any picketing at the jobsite nor were any
deliveries ever stopped . None of O'Neil -Sinclair 's employ-
ees ceased working. Economy was the only contractor or
subcontractor on the project whose employees did not work
August 7 and 8.8
Concluding Findings
The facts here are not in substantial dispute despite the
contentions of Counsel at the trial . There are, however,
several credibility issues which must be resolved as they are
critical to the final determination of this matter.
First, there is the question of whether Langhamer told
Wismar and Bilynski , on August 4, that he was going to
speak to the other business agents about shutting down the
job the following week if National Survey remained on the
project . Although Langhamer denied making this state-
ment , I do not find his denial persuasive. My observation
of these witnesses while they were testifying and my review
of the facts cause me to conclude that the union representa-
tive did in fact threaten to speak to the other business agents
about shutting down the project . He visited the jobsite on
three occasions for the express purpose of getting O'Neil-
Sinclair to replace National Survey with a union contractor.
On each occasion he reminded Wismar and Bilynski of their
obligation under the collective -bargaining agreement be-
tween the Employer Association and the Council. Wismar's
testimony indicating that Langhamer was impatient over
the lack of action , i.e., replacement of National Survey on
the project , is far more plausible than Langhamer 's denial
that the statement was never made . Furthermore , it is con-
sistent with his subsequent comment to Niklovich to tell
National Survey 's president that the Company would not
work on the project anymore . Therefore , I credit the testi-
mony of Wismar and find that Langhamer did state he
would speak to the other business agents about shutting
down the job the following week.
The second credibility question to be resolved is whether
Langhamer )nduced Donofrie not to work on the project.
As admitted by the General Counsel , the evidence in this
regard is purely circumstantial. However , circumstantial
evidence has been used by the Board to establish a violation
of the Act . Local Union No. 272, International Association of
Bridge, Structural and Ornamental Iron Workers . AFL-CIO
(Prestress Erectors, Inc.), 172 NLRB 207.
Donofrie worked with the crew from National Survey on
August 2 , knowing that they were not members of the
Union . Although he claimed that they were not performing
work in his "jurisdiction," it is clear that the National Sur-
vey employees and Donofrie were working on the layout of
the storm drains and sewers to be installed by Economy. It
was not until August 4, that Donofrie decided that he could
no longer remain on the job because of his convictions
about working with nonunion surveyers. This explanation
rings hollow ; especially when one takes into account that
earlier that very morning Donofrie spoke with Langhamer
and the business agent informed the employee that there
were nonunion surveyers on the job (a fact which was al-
ready known to the employee ). I find no need to determine
whether Langhamer subsequently asked the employee to
remain on the job , as testified to by Wilson and Donofrie.
B National Survey was replaced by Denny Associates, a firm that had a
7 Donofrie testified that he knew National Survey was a nonunion firm contract with the Union The evening of August 8, Wilson contacted the
before he worked with the crew on August 2 employees of Economy and told them to report to work the next day
TECHNICAL ENGINEERING DIV., U.A. LOCAL 130
Rather , I find that the circumstantial evidence in this case
is sufficient to warrant the inference that Donofrie 's actions
were induced and inspired by the business representative of
the Union . Ironworkers, Local 272, supra.
On the basis of the foregoing, I find that the General
Counsel has established by the preponderance of the credi-
ble circumstantial evidence in this case that the Respondent
Union induced Donofrie to walk off the project on August
4 in order to compel O'Neil-Sinclair to replace National
Survey with a union contractor . Such conduct violates Sec-
tion 8 (b)(4)(i)(B) of the Act . I also find that the Respondent
Union threatened O'Neil-Sinclair with the possibility of a
strike if it did not replace National Survey with a union
contractor pursuant to the subcontracting clause in the col-
lective-bargaining agreement . The subcontracting clause is
not in issue here , and it is clear that such a provision is
lawful under Section 8(e) of the Act as part of the construc-
tion industry proviso . However the law is clear that once a
contract contains such a provision , it may be enforced only
through lawsuits and not by the threat of economic sanc-
tion . Thus , Langhamer 's threat to shut down the project was
a violation of the provisions of Section 8(b)(4)(ii)(B) of the
Act. Orange Belt District Council of Painters No. 48 v. N.L.R.
B., 365 F .2d 540 (C.A.D.C., 1966).
CONCLUSIONS OF LAW
1. W. E. O'Neil Construction Company and Sinclair
Construction Company operating as a joint venture on the
Montgomery Ward Warehouse project in Northlake, Illi-
nois , are employers, individually and collectively, as defined
in Section 2(2) of the Act engaged in commerce and in an
industry affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Technical Engineering Division, Local Union
130, U.A., AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By inducing and encouraging an employee employed
by Economy Mechanical Industries to refuse in the course
of his employment to perform services on the Northlake
jobsite with an object of forcing or requiring O'Neil -Sinclair
to cease doing business with National Survey Services, Inc.,
the Respondent Union violated Section 8(b)(4)(i)(B) of the
Act.
4. By threatening to cause a work stoppage on the North-
lake jobsite, the Respondent Union threatened, coerced and
restrained O'Neil-Sinclair wth the object of forcing and re-
quiring it to cease doing business with National Survey
Services, Inc., in violation of Section 8(b)(4)(ii)(B) of the
Act.
5. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend the issuance of an
351
Order that it cease and desist therefrom and that it take
certain affirmative action necessary to effectuate the poli-
cies of the Act?
Accordingly, upon the foregoing findings of fact, and
conclusions of law, and upon the entire record in this case,
pursuant to Section 10(c) of the Act, I make the following
recommended:
ORDER10
The Technical Engineering Division, Local Union 130,
U.A., AFL-CIO, its officers, agents and representatives,
shall:
1. Cease and desist from:
(a) Inducing employees of Economy Mechanical Indus-
tries, or any other employer, performing work at the O'Neil-
Sinclair jobsite at Northlake, Illinois, from performing serv-
ices where an object thereof is to compel O'Neil-Sinclair to
cease doing business with a nonunion contractor.
(b) Threatening O'Neil-Sinclair with a work stoppage at
its jobsite located at Northlake, Illinois, in order to compel
it to cease doing business with a nonunion contractor.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Post at its business office and meeting hall copies of
the attached notice marked "Appendix." 11 Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by the Respondent's
authorized representatives, shall be posted by the Respon-
dent Union immediately upon receipt thereof, and be main-
tained for 60 consecutive days thereafter in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Mail or deliver to the Regional Director for Region
13 copies of said notice for posting by O'Neil-Sinclair, pro-
vided that employer is willing, at its jobsite located at
Northlake, Illinois.
(c) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of the receipt of this Order,
what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint
setting forth violations not specifically found herein be dis-
missed.
9 The Respondent Union argues that any violation here is isolated and
does not warrant a remedial order I reject this argument. Although there was
only a single instance of a threat and of an inducement, it was sufficient to
compel O'Neil-Sinclair to replace National Survey with a union contractor.
To withhold a remedial order in the circumstances of this case would render
meaningless the provisions of the Act found to have been violated
10 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations and Order herein shall, as provided in Section
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
i i In the event the Board's Order is enforced by a judgment of a United
States Court of Appeals the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Bord "
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 having found, after a
trial before a duly designated Administrative Law Judge,
that we violated Federal law by inducing and encouraging
individuals employed by Economy Mechanical Industries
at the Northlake jobsite of O'Neil-Sinclair to refuse to per-
form theirjobs, and that we threatened O'Neil-Sinclair with
a work stoppage for the purpose of causing O'Neil-Sinclair
to cease doing business with National Survey Services, Inc.,
we hereby notify our members that:
WE WILL NOT induce or encourage individuals em-
ployed by contractors at the O'Neil-Sinclair jobsite at
Northlake, Illinois, to refuse to perform their jobs in
order to cause O'Neil-Sinclair to cease using the serv-
ices of National Survey Services, Inc.
WE WILL NOT threaten O'Neil-Sinclair with a work
stoppage at its Northlake, Illinois, jobsite in order to
cause O'Neil-Sinclair to cease doing business with Na-
tional Survey Services, Inc.
Dated By
THE TECHNICAL ENGINEERING
DIVISION, LOCAL UNION 130,
U.A., AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office , Everett McKinley Dirksen Build-
ing, Room 881 , 219 South Dearborn Street , Chicago, Illinois
60604, Telephone 312-353-7572.