United Assn. of Journeymen, Etc., Local No. 469

National Labor Relations Board - Board Decisions

Mar 10, 1961

130 N.L.R.B. 1289 (N.L.R.B. 1961)

UNITED ASSN. OF JOURNEYMEN, ETC., LOCAL NO. 469 1289
Williams is a full-time salesman from June through September s
During the rest of the year he contacts schools for orders and relieves
other salesmen absent or on vacation. Like'the other salesmen he is
paid on a salary and commission basis. When not engaged in selling
he is a part-time warehouseman. As it appears that Williams spends
the major portion of his time performing tasks like those of the
salesmen excluded from the unit, we shall exclude him.'
Accordingly, we find that the following employees at the Em-
ployer's warehouse plant, Hendersonville, North Carolina, constitute
an appropriate unit for the purposes of collective bargaining with the
meaning of Section 9(c) of the Act:
All drivers, warehousemen, and mechanics, including plant cleri-
cals, but excluding the IBM clerks, the invoice clerk, office clericals,
salesmen, watclunen, guards, professional employees, and supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication.]
8 The parties agreed to exclude the full-time salesmen who are paid on a salary and
commission basis, contact customers for orders , and are away from the plant most of
the time.
O Denver-Colorado Springs-Pueblo Motor Way , 129 NLRB 1184 . Member Fanning, for
the reasons stated in his dissent in the latter case , would allow Williams to vote and
include him in the unit to the extent that he performs warehouseman work , as it appears
that such work regularly occupies a substantial part of his time.
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, Local No . 469, AFL-CIO; United Brotherhood of
Carpenters and Joiners of America , Local No. 1100, AFL-CIO;
International Hod Carriers, Building and Common Laborers
Union of America, Local No . 556, AFL-CIO [W. D. Don Thomas
Construction Company ] and Howard C. Johnson .' Case No.
21-CC-343. March 10, 1961
SUPPLEMENTAL DECISION AND AMENDED ORDER
On September 12, 1960, the Board issued a Decision and Order,
generally adopting the Trial Examiner's findings, conclusions, and
recommendations.' The Trial Examiner had found and concluded
that the Respondents induced and encouraged the employees of
Thomas to engage in a strike with an object of forcing Thomas to
cease doing business with Johnson, in violation of Section 8 (b) (4) (A)
of the Act. The Trial Examiner had accordingly recommended, in
line with current Board practice, that the Respondents cease and desist
i 129 NLRB 36.
130 NLRB No. 129.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from inducing or encouraging the employees of Thomas "or of any
other employer" to engage in a strike, where an object was to force
Thomas "or any other employer or person" to cease doing business
with Johnson. The Decision and Order modified these recommenda-
tions by omitting the quoted phrases, on the ground of the Supreme
Court's opinion in Communications Workers of America, AFL-CIO
and Local No. 4372, etc. (Ohio Consolidated Telephone Company) v.
N.L.R.B., 362 U.S. 479. Member Rodgers dissented in part, on the
ground that the Communications Workers case involved a different
provision of the Act-restraint and coercion of employees with re-
spect to their exercise of statutory rights, in violation of Section
8(b) (1) (A) -and was therefore distinguishable.
On October 4, 1960, the General Counsel duly filed with the Board
a motion for reconsideration, in effect urging the dissenting position
of Member Rodgers.
On consideration of this motion, the Board is of the view that
certain earlier Supreme Court cases,2 which involve Section
8 (b) (4) (A) as does the present case, authorize the broader order
recommended by the Trial Examiner; and that the Communications
Workers case does not involve a comparable violation, has no impact
on these earlier cases, and does not require a narrow order. Accord-
ingly, we grant the General Counsel's motion, and will amend our
order and the corresponding part of the notice .3
AMENDED ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the Act, the National Labor Relations Board hereby orders that
the Respondents, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United States
and Canada, Local No. 469, AFL-CIO; United Brotherhood of Car-
penters and Joiners of America, Local No. 1100, AFL-CIO; and
International Hod Carriers, Building and Common Laborers Union
of America, Local No. 556, AFL-CIO, their officers, agents, repre-
sentatives, successors, and assigns, shall:
2 International Brotherhood of Electrical Workers , Local 501 , et al. (Langer ) v. N.L.R.B.,
341 U.S. 694; N.L.R.B. v. Local 74, United Brotherhood of Carpenters ( Watson's),
341 U.S. 707.
8 Our dissenting colleague's disagreement is based on an apparent misconception of the
nature of the Order we are entering . It is not a "broad" order, i.e., an order of the type
disapproved by the Court of Appeals for the First Circuit in the Ochoa case cited by our
colleague . In that case , the court disapproved an order enjoining an employer and union
from "in any manner" violating Section 8(a) (1) and ( 3) and Section 8(b) (1) (A)
and (2) of the Act, on.the ground that the stipulated facts therein did not warrant such
an order. The order we now enter does not enjoin violations of Section 8(b) (4) "in any
manner"-it merely prohibits further secondary boycott activity in aid of the Respondents'
dispute with the primary employer, which is like, or related to, the secondary boycott
violations in which Respondents have been found to have engaged.
UNITED ASSN. OF JOURNEYMEN, ETC., LOCAL NO. '469 1291
1. Cease and desist from engaging in, or inducing or encouraging
the employees of W. D. Don Thomas Construction Company, or any
other employer, to engage in, a strike or concerted refusal in the course
of their employment to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materials, or commodities,
or to perform any services, where an object thereof is to force W. D.
Don Thomas Construction Company, or any other employer or person,
to cease doing business with Howard C. Johnson..
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their respective business offices copies of the appropri-
ate notice attached as an Appendix to the Intermediate Report .4
Copies of said notice, to be furnished by the Regional Director for
the Twenty-first Region, shall, after being duly signed by the respec-
tive Respondent, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it, for 60 consecutive days there-
after, in conspicuous places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken by the
respective Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Furnish to the Regional Director for the Twenty-first Region
signed copies of the appropriate notice for posting by W. D. Don
Thomas Construction Company, if willing, at places where it cus-
tomarily posts notices to its employees.
(c) Notify the Regional Director in writing, within 10 days from
the date of this Amended Order, what steps have been taken to comply
herewith. '
MEMBER FANNING, dissenting in part:
I would adhere to my original decision in this case to limit the scope
,of the Order. Inasmuch as only one secondary and one primary em-
ployer were affected by Respondents' conduct, and there has been no
showing of any "generalized scheme," "proclivity," or "pattern" for
extending this conduct to other employers,' I see no warrant for the
broad Order which my colleagues have here fashioned. See N.L.R.B.
v. Ochoa Fertilizer Corp., et al., 283 F., 2d 26 (C.A. 1) (Turgeon
case).
CHAIRMAN McCuLLOCH took no part in the consideration of the
above Supplemental Decision and Amended Order.
4 The notice shall be amended by substituting for, the words "The Recommendations of
a Trial Examiner" the words "A Decision . and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."