United Brotherhood of Carpenters and Joiners

National Labor Relations Board - Board Decisions

Feb 5, 1958

119 N.L.R.B. 1444 (N.L.R.B. 1958)

1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
challenge the ballot cast by any of the employees it deemed ineligible
to vote.3 Having failed to do so, the Employer cannot, under well-
established principles, correct its oversight by post-election chal-
lenges in the form of an objection 4 If the Board were to entertain
the challenges at this time, its election processes would be converted
from a definitive resolution of preference into a protracted resolution
of objections, perhaps concerning issues purposely disregarded or,
suppressed against the contingency of an adverse result.
As we have overruled the objections to the election and as the tally
of ballots shows that the Petitioner received a majority of the valid
ballots cast and the 12 overruled challenges are insufficient in number-
to affect the results of the election, we shall certify the Petitioner as
the collective-bargaining representative of the employees in the
appropriate unit.
[The Board certified International Association of Machinists, AFL-
CIO, as the designated collective-bargaining representative of all pro-
duction and maintenance employees at the Employer's Charleston,
South Carolina, operations.]
8 The Petitioner challenged the ballots of 18 employees on the ground that they were
supervisors The Regional Director would sustain the challenges as to 14 employees
and overrule them as to 4 employees The Regional Director also would sustain the
challenges to the ballots cast by 4 other employees and overrule the challenges as to &
additional employees, on various other grounds not material herein As no exceptions
were taken to the Regional Director's rulings with respect to the challenged ballots, we
adopt these rulings pro forma The Employer does not dispute the Regional Dnector's
rulings with respect to' any of the challenges, but argues that some of the employees
who voted without challenge had comparable jobs to those of the 14 employees whose.
challenged balloth were sustained by the Regional Director as supervisors This argument
deals with the post-election challenge which is discussed above
4 N L R B v A J Tower Company, 329 U S 324, Sears Roebuck and Co , 114 NLRB'
762, General Steel Tank Co , Inc, 111 NLRB 222, 224
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Its Agent Cecil Shuey ; Local 60, United Broth-
erhood of Carpenters and Joiners of America , AFL-CIO and
Its Agents Chester Bereman and Paul Bear ; and Carpenters.
District Council , United Brotherhood of Carpenters and Join-
ers of . America, AFL-CIO and Its Agent R. R. Smith and
Wendnagel & Company. Cases Nos. 35-CC-35 and 35-CD-4_
February 5,1958 ,
DECISION AND ORDER
On February 18, 1957, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding, in Case
119 NLRB No. 184.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 1445
No. 35-CD-24, that the Respondents had engaged in and were engag-
ing in certain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto, and
further finding, in Case No. 35-CC-35, that the Respondents had not
-engaged in and were not engaging in any unfair labor practices and
recommending that the consolidated complaint be dismissed insofar
as it alleges that the Respondents violated Section 8 (b) (4) (A) of
the Act. Thereafter, the Respondents, the General Counsel, and the
Charging Party filed exceptions to the Intermediate Report with
supporting briefs.'
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. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent consistent with the Decision
and Order.
1. We agree with the Trial Examiner that the Respondents violated
Section 8 (b) (4) (D) of the Act, but contrary to the Trial Examiner,
we find that the Respondents also violated Section 8 (b) (4) (A) of
the Act.
This proceeding involves a jurisdictional dispute between the
Carpenters and Coopers over certain work to be performed by Wend-
-nagel & Company in connection with the construction of an addition
to the plant of John Sexton and Co. in Indianapolis, Indiana.
Early in 1956, Sexton engaged J. Emil Anderson and Son, Inc., to
build an addition to its plant. Anderson subcontracted the major
construction work to Fruin-Colnon Contracting Company and sub-
contracted certain tank work to Wendnagel, including the construction
.and erection of an outside wooden tank. Fruin employs members of
Carpenters Local 60 and Wendnagel employs members of Coopers
Local 67.
On April 10, 1956, Wendnagel's employees began to erect the out-
,side wooden tank. Carpenters Steward Paul Bear summoned Local
S60's business agent, Chester A. Bereman, to the job. Bereman looked
the tank work over and then called Cecil Shuey, international repre-
sentative of the Carpenters. Acting upon Shuey's instructions, Bere-
man told Wendnagel's Foreman Charles Wawak that the work on
the tank belonged to the Carpenters. Wawak offered to do the work
I The Respondents also requested oral argument . The request is denied as the record,
including the exceptions and briefs , adequately presents the issues and the positions of
the parties. '
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a composite crew of carpenters and coopers but Bereman, after
further advice from Shuey, refused the compromise. Bereman then
instructed Steward Bear to pull the carpenters off the job the next
morning if the coopers resumed work on the tank.
Bereman told Wawak and Aaron Pierson, vice president of Fruin,
of the carpenters' decision to quit work unless given the tank job.
Pierson and Bereman then drove to Shuey's office. Shuey reiterated
that the carpenters would not work alongside the coopers.
After leaving Shuey's office, Pierson telephoned Anderson who, in
a three-way telephone conversation, urged Wendnagel to straighten
matters out so that Fruin's carpenters would not be removed from the
Sexton job. Later that day, Wendnagel's attorney, John T. Van
Aken, called Shuey and repeated Wawak's offer to compromise the
dispute by hiring carpenters to work with Wendnagel's coopers. He
reminded Shuey that past disputes between the carpenters and coopers
had been so compromised. Shuey insisted that except for supervision
the work must be done entirely by carpenters.
The next morning, April 11, the coopers resumed work on the
wooden tank and Steward Bear ordered Fruin's carpenters off the job.
Sometime between April 11 and April 18, R. R. Smith, president of
the Carpenters' District Council, offered to call off the strike if certain
millwright work in the Sexton building were given to members of the
Carpenters.
On April 17, the carpenters received notice of the charges filed by
Wendnagel in this case. Upon advice from Shuey, Bereman and
Smith instructed Steward Bear to put the carpenters back to work.
The carpenters reported for work the next morning, April 18. The
coopers thereafter completed the tank work.
On September 12, 1956, the Board issued its Decision and Deter-
mination of Dispute (116 NLRB 1063),2 finding that the Carpenters
was not entitled to force or require Wendnagel to assign the disputed
work to its members. The Board directed the Respondents to notify
the Regional Director in writing of their intention to comply with the
Board's determination. No Respondent sent such notice.
The Trial Examiner concluded from the foregoing evidence that
Respondents had violated Section 8 (b) (4) (D) but that they had
not violated Section 8 (b) (4) (A). He reasoned, first, that the ob-
jects described in Section 8 (b) (4) (A) and 8 (b) (4) (D) are
2 We reject the Respondents ' contention that the Determination should have made
an affirmative award of the work . To the extent that our decision herein may be in
conflict with the recent decision of the Court of Appeals for the Third Circuit , N. L. R. B.
v. United Association of Journeymen and Apprentices. etc ., Locals 420 and 428 ( Frank W.
Hake ), 242 F . 2d 722 , we must respectfully disagree with the decision of the court.
Local 16 , International Longshoremen's and Warehousemen's Union (Denali-McCray
Construction Company ), 118 NLRB 109.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 1447
mutually exclusive and cannot stem from a single state of facts, and
'second, that the evidence showed that Respondents approached Fruin
and Anderson only to persuade them to pressure Wendnagel to re-
assign the disputed tank work to the Carpenters. Accordingly, he
concluded that there is no basis on which a "cease doing business"
object could be predicated.
The Trial Examiner's holding that Section 8 (b) (4) (A) and 8 (b)
(4) (D) objects are mutually exclusive is inconsistent with the Board's
decision in Northwest Heating Company, 107 NLRB 542, a case to
which the Trial Examiner did not advert. In that case, involving
as here a secondary strike to compel a reassignment of work, the
Board held that the availability of a "different remedy under Section
8 (b) (4) (A) in no way deters the Board from proceeding under
Sections 10 (k) and 8 (b) (4) (D). These sections, 8 (b) (4) (A)
and 8 (b) (4) (D), are not mutually exclusive" (footnotes omitted).
107 NLRB at 548-549. See also Artcraft Venetian Blind Co., 110
NLRB 216'2,111 NLRB 644.
In finding that the Respondents did not seek to force Wendnagel
off the job, the Trial Examiner relied upon the fact that the Respond-
ents never specifically requested Anderson or Fruin to replace Wend-
nagel with a subcontractor employing Carpenters. We believe that
the Trial Examiner placed undue emphasis upon this factor, and that
the record in fact clearly indicates that the Respondents alternatively
intended their strike against Fruin to be the means of forcing Wend-
nagel's replacement. Thus the Respondents at all times insisted that
their members would not work so long as Wendnagel's Coopers re-
mained on the job. This threat had the foreseeable result of causing
Anderson to request Wendnagel to straighten the matter out with the
Respondents. It was not, however, until after Wendnagel, in response
to the pressure for settlement thus exerted by Anderson, had made
an offer of compromise which the Respondents were unwilling to ac-
cept, that the Respondents finally implemented their threat by strik-
ing Fruin. We find, in these circumstances, that the Respondents
resorted to the walkout to force Anderson to replace Wendnagel with
another subcontractor if Wendnagel persisted in its refusal to replace
its coopers with carpenters. Cf. Northwest Heating Company, supra,
107 NLRB at 548, and Chairman Farmer's concurrence at 551. See
also N. L. R. B. v. Denver Building and Construction Trades Council,
et al. (Gould d Preisner) 341 U. S. 675, 688, 689.
2. We do not agree with the Trial Examiner's recommendation that
the cease and desist order against Respondents should be limited to the
particular plant and employers involved in this case. The Trial
Examiner found that there was "no present known possibility" that
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents would repeat their unlawful conduct in the foreseeable
future. Accordingly, he enjoined Respondents merely from repeating
their unlawful conduct at the Sexton plant in the event Fruin and
Wendnagel should again be engaged for work at that plant. Con-
trary to the Trial Examiner, the record clearly shows that Respondents
have not abandoned their jurisdictional claim to work of the type
involved in this case and that Wendnagel and other employers are
likely to be harassed if, as here, they attempt to perform the disputed
work at construction sites anywhere within Respondents' territorial
jurisdiction with nonmembers of the Carpenters. As pointed out by
the Board in its "Decision and Determination of Dispute," Interna-
tional Representative Shuey insisted that "carpenters do not work
with members of the Coopers within a certain geographical area" (116
NLRB 1063, 1067). Accordingly, it would appear appropriate to
enlarge the scope of the Trial Examiner's recommended cease and
desist order by enjoining Respondents from the commission of similar
illegal actions not only with respect to the employers involved in this
case, but also with reference to any other employers. Cf. Industrial
Painters and Sandblasters, 117 NLRB 1301 at 1302.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, and its agent,
Cecil Shuey; Local 60, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, and its agents, Chester Bereman and Paul
Bear; and Carpenters District Council, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, and its agent R. R. Smith;
and their respective officers, representatives, agents, successors, and
assigns shall :
1. Cease and desist from engaging in, or inducing or encouraging the
employees of Fruin-Colnon Contracting Company or the employees
of any other employer to engage in, a strike or concerted refusal in the
course of their employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials, or com-
modities, or to perform any services, where an object thereof is (a) to
force Fruin-Colnon Contracting Company or any other employer to
cease doing business with Wendnagel & Company or any other
employer, or (b) to force or require Wendnagel & Company or any
other employer to assign particular work to members of the Respond-
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 1449
ents rather than to other employees, except insofar as any such action is
permitted under Section 8 (b) (4) (D) of the Act.
2. Take the following affirmative action, which it is found will
effectuate the policies of the Act :
(a) Post at each of the Respondents' respective business offices
copies of the notice in the form attached hereto as Appendix A.3
Copies of said notice, to be furnished by the Regional Director for
the Ninth Region, shall, after being duly signed by their respective
official representatives, be immediately posted and maintained for a
period of sixty (60) days thereafter, in conspicuous places, including
all places where notices to members of the Respondents are customarily
posted. Reasonable steps shall be taken by said Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days of the date of this Order, what steps each has
taken to comply herewith.
MEMBER FANNING took no part in the consideration of the above
Decision and Order.
°In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, 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."
APPENDIX A
NOTICE TO ALL MEMBERS OF UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO; LOCAL 60, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL-CIO; AND CARPENTERS
DISTRICT COUNCIL, UNITED BROTHERHOOD OF, CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, as amended, we hereby notify you that :
WE WILL NOT engage in, or induce or encourage the employees of
Fruin-Colnon Contracting Company, or the employees of any
other employer, to engage in a strike or a concerted refusal in the
course of their employment to use, process, or otherwise handle
or work on any goods, articles, materials, or commodities, or to
perform any services where an object thereof is (1) to force Fruin-
Colnon Contracting Company or-any other employer to cease
doing business with Wendnagel & Company or any other em-
ployer, or (2) to force or require Wendnagel & Company or any
other employer to assign certain work to members of our Union
1450 DECISIONS OF "NATIONAL LABOR RELATIONS BOARD
rather than to other employees , except insofar as any such action
is permitted under Section 8 (b) (4) (D) of the Act.
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By--------------------=----------------
( Representative)
CECIL SHURY , International Representative
LOCAL 60, UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA,
AFL-CIO,
Labor Organization.
Dated------- ---------- By-------------------------------------
( Representative)
-------------------------------------
CHESTER BEREMIAN (Title)
PAUL BEAR (Title)
CARPENTERS DISTRICT COUNCIL, UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative)
R. R. SMITH (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, clef aced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Wendnagel & Company, herein called Wendnagel or the Charging Party, on April
16, 1956, filed charges in Cases Nos. 35-CC-35 and 35-CD-241 against United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, and its Agent Cecil
Shuey; Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO and its Agents Chester Bereman and Paul Bear; and Carpenters District Council,
United Brotherhood of Carpenters and Joiners of America, AFL-CIO and its Agent
R. R. Smith, herein referred to as the Respondents, the Carpenters or individually
by their last name, setting forth alleged facts claimed to constitute violations of
Section 8 (b) (4) (A) and (D) of the National Labor Relations Act, as amended,
61 Stat. 136, herein referred to as the Act.
Thereafter on June 20 and 21, 1956, after due notice a hearing was held before a
hearing officer of the Board in a dispute proceeding under Section 10 (k) of the Act
at which time the above-mentioned Respondents herein and Respondents then, and
the Charging Party appeared by counsel and were heard. This hearing was held
1 These charges were subsequently amended on April 30 and May 3, 1956.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 1451
for the purpose of determining the dispute out of which the charge of violation of
Section 8 (b) (4) (D) had arisen in Case No. 35-CD-24.
On September 12, 1956, the Board issued its Decision and Determination of Dis-
pute 2 pursuant to Section 10 (k) of the Act. In that Decision and Determination
of Dispute, the Board determined that a dispute existed, found that "we therefore
find that the Carpenters was not entitled by means proscribed by Section 8 (b) (4)
(D) to force or require Wendnagel to assign the disputed work to Carpenters, to the
exclusion of other employees" and directed that "within 10 days from the date of
this Decision and Determination of Dispute, said unions and their agents, as named
above, shall notify the Regional Director for the Ninth Region, in writing, whether
they will refrain from forcing or requiring Wendnagel & Company, by means pro-
scribed by Section 8 (b) (4) (D) of the Act, to assign the work in dispute to mem-
bers of the Carpenters rather than employees of Wendnagel." At the hearing in the
instant matter, all parties, including counsel for the Respondents, agreed that no such
notification had been sent to the Regional Director by any of the Respondents.
On July 27, 1956, the General Counsel of the National Labor Relations Board,
hereinafter respectively called the General Counsel 3 and the Board, by the Regional
Director of the Ninth Region issued a complaint against the Respondents alleging a
violation of Section 8 (b) (4) (A) of the Act. Thereafter, on November 9, 1956,
upon appropriate order consolidating the cases, said Regional Director issued an
amended consolidated complaint alleging that the Respondents had violated Section
8 (b) (4) (A) and (D) of the Act and alleging in part:
Since on or about April 10, 1956, and at .all times thereafter, the Respondent
Unions, through and by their agents and representatives named in paragraph I
above, have, by orders, instructions, directions and appeals, induced and en-
couraged the employees of Fruin, at the Indianapolis, Indiana, Sexton job site,
to engage in a strike or concerted refusal in the course of their employment
to use, manufacture, process, transport or otherwise handle or work on any
goods, materials, or commodities, or to perform any services, an object being
to force or require Fruin and Anderson to cease doing business with Wendnagel,
and to force Wendnagel to assign the work of construction and erecting wood
tanks or vats to members of the Respondents rather than to Wendnagel's own
employees. [Emphasis supplied.]
Answer was filed on behalf of each Respondent, which in effect, as to each one,
effectively denied the substantive allegations of the amended consolidated com-
plaint, hereinafter called the complaint. Pursuant to notice, a hearing was held
before the duly designated Trial Examiner at Indianapolis, Indiana, on December 6,
1956, at which time the General Counsel, the Charging Party and each of the Re-
spondents were represented by counsel. Full opportunity to be heard, to.examine
and cross-examine witnesses, and to introduce evidence bearing on the issues, to argue
orally upon the record, and to file briefs, proposed findings of fact, and proposed
conclusions of law were afforded all parties. No testimony was actually heard as
the parties stipulated that the witnesses, if called, would testify as each had previously
testified in the dispute proceeding under Section 10 (k) on June 20-21, 1956. At
the conclusion of the hearing the Respondents argued orally as did the attorney for
the Charging Party. On January 4, 1957, a brief was received from the Charging
Party.
Upon the entire record in the case, and from his observation of the witnesses, and
after full consideration, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE RESPONDENTS
United Brotherhood of Carpenters and Joiners of America , AFL-CIO; Local 60,
United Brotherhood of Carpenters and Joiners of America , AFL-CIO; and Car-
penters District Council , United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, are labor organizations within the meaning of the Act.
Cecil Shuey is, and at all times material hereto has been, an agent and representa-
tive for Respondent International . Chester Bereman and Paul Bear are, and at all
times material herein have been , agents and representatives of Respondent Local.
a 116 NLRB 1063.
This term specifically includes the attorney appearing for the General Counsel at the
hearing.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R. R. Smith is, and at all times material hereto has been, an agent and representative
of Respondent District Council.
If. BUSINESS OF THE COMPANIES
Wendnagel & Company, an Illinois corporation whose principal office is located
at Chicago, Illinois, is principally engaged in the business of contracting and erecting
wooden tanks and vats. In the course and conduct of its business, Wendnagel
fabricates wooden tanks and vats at its Chicago plant and ships them, in segments,.
to various construction sites where they are assembled and erected. During the
past 12-month period, Wendnagel has supplied goods, materials, and services valued,
at more than $100,000 directly to projects located outside the State of Illinois.
During this same period, Wendnagel has purchased goods and materials of sub-
stantial value and has had them shipped from points located in one State of the
United States directly to destinations in other States of the Unitcd States.
J. Emil Anderson and Son, Inc. (herein sometimes called Anderson), an Illinois
corporation, is, and at all times material hereto has been, engaged as a general-
contractor in the construction of various projects throughout numerous States of
the United States. During the past 12-month period, Anderson has supplied goods„
materials, and services valued at more than $100,000 directly from its home office in,
Illinois to projects located outside the State of Illinois.
Fruin-Colnon Contracting Company (herein sometimes called Fruin), a Missouri
corporation, is, and at all times material hereto has been, engaged as a contractor
in the construction of various projects throughout numerous States of the United.
States.
The Trial Examiner finds that the Companies at all times material hereto have been.
engaged in commerce within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
Early in 1956 John Sexton and Co. was enlarging its building in Indianapolis,.
Indiana. Sexton has contracted with J. Emil Anderson and Co. to build this addi-
tion. Anderson in turn subcontracted the major portion of the construction work
to Fruin-Colnon Company but apparently had subcontracted the fabrication and erec-
tion of the steel to be used in the construction as well as certain tanks to be placed
inside the building to Wendnagel & Company. Apparently Wendnagel fabricated
the steel as per the contract with Anderson but subcontracted its erection to Fruin.
These contracts are not directly involved in the present matter which centers around
a second contract between Anderson and Wendnagel.
Under the terms of this second contract between Anderson and Wendnagel,
Wendnagel contracted to erect a steel tower on the roof of the addition and to,
build and erect thereon a wooden tank as a part of the fire prevention system of the
building. Subsequently Wendnagel subcontracted the erection of the steel tower,
a matter of approximately 2 days' work, to Fruin which completed the erection of
the tower sometime in March?
On April 10, 1956,5 the erection of the wooden water tank onto the steel tower
began. Paul Bear, steward of Local 60 and a carpenter employee of Fruin, called
Chester A. Bereman, business agent of Respondent Local, and, after telling him
that "they" were installing the tank without carpenters, asked him to investigate the
job. Bereman came to the Sexton site promptly, determined that the men working
on the wooden tank were members of the Coopers Union and employees of Wend-
nagel, and, after telephonic consultation with Shuey, International representative
of Respondent International, told Charles Wawak, Wendnagel foreman and secretary
of Local 67 of International Coopers Union, that the work on the tank belonged
to the Carpenters Union. Wawak offered to do the job with 2 members of the
Carpenters and 2 from the Coopers Union but Bereman, after further advice from
Shuey, refused the compromise, adding that, if the Coopers went on the job, the
Carpenters would not work on the job site. Bereman then instructed Steward Bear
4 None of these contracts and subcontracts was submitted at the hearing in written
form. The oral testimony presented regarding them, and particularly about the con-
tractual arrangements regarding the steel tower and water tank, was indefinite, uncertain
and, in some instances, conflicting. Apparently most, if not all, of the contractual ar-
rangements about the steel tower and water tank were oral.
5 All dates herein, except as specifically stated, are in the year 1956.
UNITED BROTTIERHOOD OF CARPENTERS AND JOINERS 1453
to pull the Carpenters off the job the following morning if the Coopers went back
to work on the tank.
Aaron Pierson , vice president of Fruin in charge of its Indiana division , accom-
panied by Bereman , then drove to Shuey 's office where Pierson explained the con-
tractual arrangements regarding the wooden tank and insisted that Fruin had noth-
ing to do with the assignment of work on the tank. Shuey repeated to Pierson that
the work had to be done by carpenters and that, if the coopers continued to erect
the tank the following morning, the carpenters could not continue to work on the
Job site.
After leaving Shuey's office , Pierson telephoned the prime contractor, Anderson,
who in a three-way telephone conversation urged Wendnagel to get the matter
straightened out so that the employees of Fruin would not be removed from the
.Sexton job.
That same day Van Aken , attorney for Wendnagel , telephoned Shuey, during
which conversation Shuey informed Van Aken that , if Wendnagel employed mem-
bers of the Coopers Union in capacities other than foreman or instructor on the
tank job, Wendnagel would have trouble. There is a conflict in the testimony,
which does not need to be resolved here, as to whether Van Aken said that he
would consult his client and call Shuey back . Both witnesses agreed that this was
,only conversation between these parties.
On the morning of April 11, the coopers resumed work on the water tank. Steward
Bear then ordered the Carpenters off the job as he had been instructed . None of
the carpenters worked on the job site thereafter until April 18.
Sometime during this week Pierson also consulted with R . R. Smith , president
of Respondent Council, who suggested to Pierson that , if certain millwright work to
be done in the Sexton building were given to members of the Carpenters Union
that the strike would be called off.
On April 17 , the Respondents received notice of the filing of the charges by Wend-
nagel in this case . Upon advice from Shuey, Bereman and Smith instructed Steward
Bear to put the carpenters back to work the following morning, April 18. All the
carpenters returned to work on the morning of April 18, and have continued there-
after without interruption . The work on the tank was completed by the coopers
but the record is silent as to when that work was completed.
As noted heretofore ,. after due notice, the Board held a hearing under Section
10 (k) on the work assignment dispute on June 20 and 21, and on September 12,
issued its Decision and Determination of Dispute 6 wherein the Board found that the
Respondent Carpenters were not entitled to force or require Wendnagel to assign
the disputed work to members of their Unions to the exclusion of other employees
and directed the Respondents within 10 days of the date thereof to notify the Re-
gional Director in writing as to whether they would refrain from forcing or requiring
Wendnagel as more fully set forth above. No such notification in writing has been
sent by the Respondents or any of them.
B. Conclusions
Section 8 (b) (4) of the Act makes it an unfair labor practice for a labor organ-
ization or its agents to engage in a strike or encourage employees to withhold their
services in concert when that strike or encouragement has certain proscribed objec-
tives which will be set forth and discussed more fully hereinafter.
Respondents here are all either labor organizations or, in the case of the individuals
named, the agents of such labor organizations . The Trial Examiner makes this
finding despite the limited admission of the Respondents ' answer to the effect that,
while Shuey was an International Representative , he had no authority to act in the
present dispute, and despite the testimony of Shuey who , while admitting his capacity
as International Representative of the Respondent International having direct su-
pervision 7 over Respondent District Council and R . R. Smith , its president and
business agent , denied having any authority to pull employees off jobs or to order
them back to work. Shuey claimed further that his instructions to Smith, Bereman,
and Bear were purely "advisory." In this case , however, actions speak louder than
words because, immediately upon receipt of such advice from Shuey, Smith, Bere-
" 116 NLRB 1063.
v At one point in his testimony Shuey answered a question as follows : "None except as
I testified previously I am in charge, or I have supervision of Indianapolis District
Council." As Shuey was at that time the presiding officer of the Council, it would appear
that his original partial description of his capacity need not have been changed.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man, and Bear ordered the Carpenter employees pulled off the Sexton job and, on
April 17, back to work. Accordingly, the Trial Examiner must find that Shuey not
only had the authority to, but did in fact, call a strike of the Fruin Carpenters and
furthermore on April 17, ordered such employees back to work as of April 18.
It is also too obvious for discussion that the Carpenter employees of Fruin en-
gaged in a strike or a concerted withholding of services of April 11 upon the orders
of all the Respondents here.
Hence, the first two preliminary elements of an unfair labor practice under both
Section 8 (b) (4) (A) and (D) are here satisfied.
We must now consider whether or not this strike was called for an objective or
objectives proscribed by subsections (A) and/or (D). As to the purposes of the
strike the complaint alleges in paragraph V: ". . an object [of the strike or con-
certed cessation of work] being to force or require Fruin and Anderson to cease doing
business with Wendnagel, and to force Wendnagel to assign the work of construc-
tion and erecting wood tanks or vats to members of the Respondents rather than to
Wendnagel's own employees." [Emphasis supplied.]
Although the General Counsel in his complaint has thus alleged that the objects
or purposes of the strike here were those proscribed both by subsection (A) and
subsection (D) in the conjunctive, Respondents argue that these two proscribed
objectives are in fact mutually exclusive and cannot both be inferred from one and
the same set of facts such as exist here.
Subsection (A) proscribes a strike where an object thereof is the "forcing or re-
quiring any employer . to cease doing business with any other person." In the
present instance General Counsel has alleged that an object of the April 11 strike
was to force Anderson and Fruin to cease doing business with Wendnagel. In other
words, according to this, the object of the strike was to force Wendnagel to abandon
his contract relating to the wood tank which, in turn, correlatively would mean that
Wendnagel also abandoned its rights to assign the work relating thereto. So, if An-
derson and Fruin ceased doing business with Wendnagel as alleged in the complaint,
it follows that Wendnagel would have had no work available to be assigned by it.
On the other hand, subsection (D) proscribes a strike where an object thereof is
the "forcing or requiring any employer to assign particular work to employees in a
particular labor organization . . . rather than to employees in another organiza-
tion. .. Or, as it is alleged specifically in the complaint, "and to force Wendnagel
to assign the work of construction and erecting wood tanks or vats to members of
the Respondents rather than to Wendnagel's own employees" at the Sexton job site.
[Emphasis supplied.]
In other words the General Counsel has alleged that the Respondents' objectives
were (1) to cause Wendnagel to lose its contract for the wood tank and, in the
conjunctive, (2) to cause Wendnagel to make certain job assignments in regard to
this same tank contract. As the right to.make job assignments is a prerogative de-
pendent upon the existence or nonexistence of the contract providing for the work,
the alleged coexistence of these two purposes seems both illogical and inconsistent.
If the complaint is to be believed, then Respondents were trying to cause Wendnagel
to lose his contract which alone gave it the right to make the job assignments while,
at one and the same time, they were trying to force Wendnagel to make those same
job assignments which were absolutely dependent upon the continued existence of
that same contract. Apparently with one hand Respondents were attempting to force
Wendnagel to make certain job assignments while with the other hand trying to take
away Wendnagel's right to make those same job assignments. These two objectives
could exist at different times or in the disjunctive but hardly at the same time or in
the conjunctive.
So the problem becomes which, if either, illegal objective did Respondents have
in causing the strike in the instant matter. Again the testimony leaves little, if any,
doubt but that the Respondents called the strike of April I1 in order to force who-
ever had the right to make job assignments regarding the wood tank to make such
assignments to members of the Respondents-and not to the Coopers.
In reference to the evidence of motivation produced at the Section 10 (k) pro-
ceeding which, by stipulation, is exactly the same as that under consideration here,
the Charging Party at page 27 of its brief to the Board in the. 10 (k) proceeding
stated:
The testimony concerning the purpose of the Carpenters' strike or concerted
refusals. to perform services stands uncontradicted. That purpose clearly was
to get Wendnagel to assign the construction work on the wood tank to members
of Respondent Unions, rather than to its own employees who were members
of the Coopers Union. Direct statements of Shuey, Smith, Bereman and Bear
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 1455
conclusively foreclose any possibility that any other purpose was a moving force
behind the work stoppage. [ Emphasis supplied.]
The Trial Examiner must concur therewith.
Accordingly, the Trial Examiner finds that the Respondents ordered the strike
of April 11 for the purpose and with the object of forcing Wendnagel to make the
work assignments on the wood tank contract to members of the Respondent Unions
instead of to members of the Coopers Union.. We now turn to the question as to whether, in addition , to the finding above, the
Respondents in calling the strike of April 11 also had the object of forcing the neutral
employers, Fruin and Anderson, to cease doing business with Wendnagel. On this
point the Charging Party argued in its brief to the Trial Examiner:
The Respondents' second argument that there was no effort on the part of the
Carpenters to force any employer to cease doing business with any other
employer. Again, this argument is simply unsupported by, and in fact directly
contrary to, the uncontradicted evidence in the record.
Also significant is the evidence that the only employer representatives con-
tacted by any of the Respondents were those of secondary employers only. No
attempt was made to contact any representative of Wendnagel, the primary
employer.'
* * * * * * *
The only logical inference to be drawn from the Respondents' attempts to con-
tact representatives of three neutral employers on the Sexton job is that such
contacts were made for the sole purpose of persuading the secondary employers
to cease doing business with Wendnagel so long as Wendnagel employed
members of the Coopers Union to perform the tank construction work.
[Emphasis supplied.]
It is first necessary to note that the facts stated in the above argument are incorrect.
Contrary to the brief, the very first contact made by the Respondents on the present
matter was with Charles Wawak who, in addition to being the secretary of the
Coopers Union, was also the superintendent for Wendnagel on the Sexton job and,
incidentally, the only Wendnagel representative on the job site so far as this record
discloses. The discussion at this meeting concerned the question of Wendnagel's
assigning Carpenters to the tank project. Wawak, on behalf of Wendnagel, offered
as a compromise to Respondents' demand to employ a crew consisting of 2 members
from the Coopers Union and 2 from the Carpenters, an offer which Shuey and
Bereman rejected.
As noted above, the Trial Examiner is in full agreement with the position taken
by the Charging Party in its brief to the Board that the evidence "conclusively fore-
closes any possibility that any other purpose was a moving force behind the work
stoppage." But in its brief to the Trial Examiner, after the consolidation of the two
charges into a single complaint, the Charging Party's position as to what the evidence
proved has been changed, or at least, augmented. However its recognition of the
necessity for having to draw "the only logical inference" from certain facts in order
to create an objective in violation of subsection (A) confirms both its own contention
in its brief to the Board and the conclusion arrived at by the Trial Examiner, to wit,
that the evidence "conclusively forecloses any possibility that any other purpose
[than forcing Wendnagel to assign the work to Respondents] was a moving force
behind the work stoppage." The evidence is persuasive that Respondents' approaches
to the neutral employers centered around having those neutral employers pressure
Wendnagel into assigning the disputed tank work to the Carpenters instead of the
Coopers. That this was so, instead of the objective which the Charging Party now
wants to be "inferred," was corroborated by the facts that these neutral employers
telephoned Wendnagel insisting that he straighten out the work assignments with
the Respondents and that the attorney for the Charging Party, in fact, attempted to
do that the very same day by telephone with Shuey until that conversation strayed
far beyond the point at issue. Thus the evidence presented, including the Respond-
ents' visits to the three neutral employers, fully justifies the pleading that the object
of the strike was "to force Wendnagel" [emphasis supplied] to make work assign-
ments favorably to the Respondents. The evidence did not prove that an object of
the Respondents' actions was to force Anderson and/or Ruin to cease doing busi-
ness with Wendnagel. There is in this record no evidence upon which such an
inference as the Charging Party here requests can be based. The evidence is to the
contrary.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly , the Trial Examiner must find that the evidence does not prove that
an object of the strike called by the Respondents was to force Anderson and/or Fruin
to cease doing business with Wendnagel . As there is no proof of any illegal object
in the Respondents action within the purview of subsection (A), the Trial Examiner
will recommend that the complaint be dismissed insofar as it alleges a violation by the
Respondent of Section 8 (b) (4) (A).
Although it is clear from the discussion above that all substantive elements of a
violation of Section 8 (b) (4) (D ) are present and proved in the instant matter,
Respondents moved for dismissal of the charges and of the complaint because of
alleged procedural defects. Respondents contend ( 1) that the Board 's "Decision and
Determination of Dispute " issued September 12, 1956, 116 NLRB 1063 , failed to
comply with the requirements of Section 10 (k) of the Act or of Section 102.73 of
the Board 's own Rules and Regulations relating to Section 8 (b) (4) (D) cases in
that said decision contained no "certification " of work assignments nor any determi-
nation of the work dispute on its merits ; ( 2) that because of the Board 's failure to
comply with either the statute or its own Rules and Regulations , the aforementioned
document is a legal nullity with which the Respondents are neither required nor
able to comply ; and (3 ) that Section 102.74 the Board's Rules and Regulations makes
noncompliance by Respondents with a valid certification issued in a 10 (k ) proceeding
a jurisdictional requirement before the General Counsel is authorized to issue a
complaint charging a violation of Section 8 (b) (4) (D) of the Act. Therefore,
continues this argument , as the Decision and Determination of Dispute was not the
required "certification ," there could be no noncompliance therewith by Respondents
and, consequently , as noncompliance is a jurisdictional requirement prior to the
issuance of Section 8 (b) (4) (D ) complaint , the complaint herein must be
dismissed.
Clearly points (1) and (2) of Respondents' argument above call into question
the legal capacity of the Board and the legal sufficiency of its actions herein. Such
legal questions must be determined either by the Board itself or by a court having
jurisdiction to review the legal capacity and sufficiency of Board action. This
Trial Examiner, deriving whatever authority he may have from his employment by
the Board, has no such jurisdiction. The Trial Examiner being bound by Board
decisions must assume their legality and sufficiency and, therefore , must deny Re-
spondents' contention in regard thereto.
Point ( 3), noncompliance , falls into a different category . This is a question of
fact and a condition precedent to the issuance of a complaint alleging a violation of
Section 8 ( b) (4) (D). Noncompliance is an essential element to a finding of a
violation of the aforementioned section of the Act.
Respondents admit, and the Trial Examiner finds, that the Respondents, and
each of them, failed to notify the Regional Director for the Ninth Region in writing
whether or not they will refrain from forcing or requiring Wendnagel & Company,
by means proscribed by Section 8 (b) (4) (D) of the Act, to assign the work in
dispute to members of the Carpenters rather than to employees of Wendnagel as
directed in the Board Order of September 12.
Such failure by Respondents to notify the Regional Director as directed in a
Board Decision and Determination of Dispute has now been determined to constitute
noncompliance in the Hake case, 112 NLRB 1097, where the Board stated:
Decisional precedent [citing Bechtel Corp., and Juneau Spruce Corp. et. al., 90
NLRB 1753.1 squarely supports the Trial Examiner's findings, which we here
expressely adopt, that the foregoing conduct of the Respondent Union's [in fail-
ing to notify the Regional Director] establishes the failure by them to comply
with the Board's Determination of Disputes. Consequently, in agreement with
the Trial Examiner, we hereby sustain the procedural validity of the General
Counsel's initiation of this complaint proceeding and hold that the case is
properly before us for a decision and order.
Otherwise, if the true measure of the question of compliance is to achieve through
effective voluntary action settlement of the jurisdictional strife involved , then it would
seem that the Respondents here, despite privately expressed personal beliefs to the
effect that the charge filed was "a falsehood ," have done just about everything possible
to eliminate the jurisdictional dispute at issue by ordering the carpenters to return to
work, which order was 'obeyed so that work has continued without interruption
since ' and by not pressing further their demand for the assignment of the tank
work to members of their Unions . It should be noted here that at no time during
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS 1457
this dispute was the job site picketed nor any attempt made to stop ingress or egress
of employees or material.8 However, in the absence of the required notification to
the Regional Director of Respondents' compliance with said Determination, these
findings do not show full compliance with the Board's Decision and Determination
of Dispute. The Trial Examiner finds noncompliance by Respondents with the
Board's Determination.
In its decision of September 12, the Board held in a footnote that the hearing
officer therein had erred in refusing to take evidence regarding other jurisdictional
disputes between the Carpenters and Wendnagel. Despite this ruling the Charging
Party.offered no evidence at the present hearing of any other alleged violations by
the Respondents. The Trial Examiner has, therefore, considered the Charging
Party's offer to prove other alleged violations involving the Carpenters made at the
Section 10 (k) proceedings. It appears from that offer of proof and from some
subsequent testimony given by Shuey that these other alleged violations were both
very few in number, several years distant in time, at far localities, and involving
other parties. As the Sexton building was nearing completion at the time of the
instant hearing without further incident, there appears to be no present known
possibility of any repetition of the present or similar unfair labor practices in the
foreseeable future. The Trial Examiner, therefore, sees no necessity for even
giving consideration to broadening the recommendation against the Respondents
here beyond the present dispute involving the Sexton addition in Indianapolis, Indiana,
even if due process would permit any such extension beyond the pleadings.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Companies set forth in section II, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
(1) United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local
60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and
Carpenters District Council, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, are labor organizations within the meaning of Section 2 (5)
of the Act. Cecil Shuey is an agent of the Respondent International. Chester
Bereman and Paul Bear are agents of Respondent Local 60 and R. R. Smith is an
agent of the Respondent Council.
(2) The aforesaid Respondents, and each of them, have engaged in, and by
orders, instructions, appeals, and other means, have engaged in a strike and have
induced and encouraged, and are inducing and encouraging, the employees of
Fruiu-Colnon Contracting Company to engage in a strike, or other concerted refusals
in the course of their employment to use, manufacture, process, transport or other-
wise handle or work on goods, articles, materials or commodities, or to perform
services, an object thereof being to force or require Wendnagel & Company to
assign certain work to members of the Respondent Unions rather than to employees
of Wendnagel & Company thereby engaging in unfair labor practices within the
meaning of Section 8 (b) (4) (D) of the Act.
(3) The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
(4) None of the Respondents have engaged.in any unfair labor practices within
the meaning of Section 8 (b) (4) (A).
[Recommendations omitted from publication.]
"In making this finding the Trial Examiner has not forgotten the testimony that some
individual unknown was parked in an automobile outside the project in order, according
to the witness, "to stop deliveries." As there was no evidence of the basis of the witness'
knowledge or of any attempt by this Individual, or any other, which in any way would
corroborate this personal opinion as to unknown individual's duties, the personal opinion
so expressed must be disregarded.
4 76321-58-vol. 119-93