W. L. Rives Co.

National Labor Relations Board - Board Decisions

Dec 16, 1959

125 N.L.R.B. 772 (N.L.R.B. 1959)

772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hold and find that Respondents and their agents named herein have engaged in and
are engaging in unfair labor practices within the meaning of Section 8(b)(4)(D)
of the Act by engaging in, and inducing or encouraging the employees of Worcester
Telegram Publishing Company, Inc, to engage in, a strike or a concerted refusal
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, where an object thereof is forcing or requiring Worcester Telegram Pub-
lishing Company, Inc, an employer, to assign particular work to employees in a
particular labor organization ratner than to employees in another class in the ab-
sence of an order or certification of the Board determining the bargaining repre-
sentative for employees performing such work I find no merit in the contention of
counsel for Respondents that the record herein fails to show any violation of Section
8(b)(4)(D) by the International Typographical Union, AFL-CIO, and Members
of its Executive Council, since they are the alter ego of Local 165, and its Scale
Committee
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in connection with the
operations of Worcester Telegram Publishing Company, Inc , 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
V THE REMEDY
Having found that the Respondents, International Typographical Union, AFL-
CIO, and Members of its Executive Council, and International Typographical Union,
AFL-CIO, Local 165, and its Scale Committee, have each violated Section
8(b) (4) (D) of the Act, as set forth above, I shall recommend that they cease and
desist from such conduct and take certain affirmative action designed to effectuate
the policies of the Act
Upon the basis of the foregoing findings of fact and the entire record in the ease,
I make the following
CONCLUSIONS OF LAW
1 International Typographical Union, AFL-CIO, including its Executive Council,
and International Typographical Union, AFL-CIO, Local 165, including its Scale
Committee, are each labor organizations within the meaning of Section 2(5) of
the Act
2 By engaging in a work stoppage and picketing and by inducing and encourag-
Ing the employees of Worcester Telegram Publishing Company, Inc, to engage in
a strike or concerted refusal in the course of their employment to perform Cervices
with ansobject of forcing or requiring Worcester Telegram Publishing Company,
Inc, to assign paste-makeup work to members of Local 165 working in its com-
posing room, rather than to artists working in its art and advertising department,
who are not members of Local 165, the Respondents International Typographical
Union, AFL-CIO, and its Executive Council, and International Typographical
Uniotl, AFL-CIO, Local 165, and its Scale Committee, have engaged in and are
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 affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
[Recommendations omitted from publication ]
W. L. Rives Company and Sheet Metal Workers International
Association, AFL-CIO. Cases Nos 12-CA-436 and 12-CA-565
December 16, 1959
DECISION AND ORDER
On March 24, 1959, Trial Examiner Charles W Schneider issued
his Intermediate Report in the above-entitled proceeding, finding
125 NLRB No 89
W. L. RIVES COMPANY 773
that the Respondent had engaged in and was engaging in the unfair
labor practices alleged in the complaint and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the General Counsel and the Respondent filed exceptions to the
Intermediate Report and supporting briefs. The Respondent also
filed a motion to dismiss the complaint.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
mediate 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.2
ORDER
Upon the entire record in the case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent , W. L. Rives
Company , its officers, agents, successors, and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in Sheet Metal Workers Interna-
tional Association , AFL-CIO, or encouraging membership in United
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO,
and Local 234 thereof , or in any other labor organization of its
1 The Respondent contends that the Trial Examiner erred in denying its prehearing
motion to discover the names and addresses of all the witnesses whom the General
Counsel intended to call to testify , a summary of the nature of their expected testimony,
copies of all exhibits to be offered in evidence at the hearing, and any prehearing written
statements or affidavits made to the Board or any of its agents by the proposed witnesses
and the Charging Parties. The courts and the Board have granted specific requests for
the production of a Government witness' pretrial affidavit where the request is properly
made after the witness has testified . Jencks v. United States , 353 U.S. 657; Ra-Rich
Manufacturing Corporation , 121 NLRB 700 . National Labor Relations Board Rules and
Regulations , Series 8, Sec . 102.118. Title 29 F.R. vol. 24 , part II, p . 9116. The affidavits
are required to be produced as an aid to cross-examination . However , this right of a
respondent to such pretrial affidavits does not extend to the broad request of the Respond-
ent. Local 1566, International Longshoremen 's Association (Maritime Ship Cleaning
and Maintenance Co.), 122 NLRB 967.
The Respondent also contends that the Trial Examiner erred in failing to designate
which testimony he credited and it contends that it is prejudiced in efforts to appeal.
We find this contention without merit . The Intermediate Report adequately informed
the parties of the findings of fact, conclusions , and the reasons or basis therefor on
all the material issues, as required by the Board 's Rules and Regulations . See. 102.4.3.
This case presents largely issues of law, and the Respondent admits in its brief that
the facts in this case , for the most part, are not in dispute.
I In its motion to dismiss the Respondent urges that the allegations of the complaint
are not supported by fact or law and that the Trial Examiner erred on procedural
grounds. The motion states generally the same contentions raised more specifically in
the exceptions and brief filed by the Respondent. We herein affirm the rulings of the
Trial Examiner ( see footnote 1) and adopt his findings and conclusions . We therefore
deny the motion.
535828-60-vol. 12 5-5 0
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, by discriminating in regard to hire or tenure of employ-
ment or any term or condition of employment.
(b) Refusing to bargain collectively with Sheet Metal Workers
International Association, AFL-CIO, as the exclusive bargaining
representative of its employees in the following appropriate bargain-
ing unit: All production and maintenance employees at the W. L.
Rives Company's sheet metal fabrication plant, Jacksonville, Florida,
excluding all office clerical employees, plant clerical employees, pro-
fessional employees, draftsmen-estimators, guards, watchmen, and
all supervisors as defined in the Act, with respect to rates of pay,
wages, hours of employment, or other conditions of employment, and
from making unilateral changes with respect thereto without consult-
ing or negotiating with the Union or otherwise derogating from the
statutory authority of the Union.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection; or to refrain from any and all such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Clifford Mattox, Fletcher Myers, J. D. Taylor,
Raymond Tripp, Loren A. Womble, and Charles A. Yost immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other rights and
privileges, and make them and the Respondent's other employees
whole for any loss of pay suffered as a result of the discrimination
against them.
(b) Upon request, bargain collectively with Sheet Metal Workers
International Association, AFL-CIO, as the exclusive bargaining
representative of all employees in the certified unit.
(c) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(d) Post at its plant at Jacksonville, Florida, copies of the notice
attached hereto marked "Appendix." I Copies of said notice, to be
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."
W. L. RIVES COMPANY 775
furnished by the Regional Director for the Twelfth Region (Tampa,
Florida), shall, after being duly signed by the Respondent or its
representative, be posted by the Respondent immediately upon receipt
thereof, and maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for the Twelfth Region in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Sheet Metal Workers
International Association, AFL-CIO, or encourage membership
in United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, or Local 234 thereof or in any other labor
organization by discriminating in regard to hire or tenure of
employment or any term or condition of employment.
WE WILL, upon request, bargain collectively with Sheet Metal
Workers International Association, AFL-CIO, as the exclusive
bargaining representative in the following appropriate bargain-
ing unit :
All production and maintenance employees of our sheet
metal fabrication plant, Jacksonville, Florida, excluding all
office clerical employees, plant clerical employees, profes-
sional employees, draftsmen-estimators, guards, watchmen,
and all supervisors as defined in the Act.
WE WILL offer the following named persons immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority and other rights and
privileges, and make them and the other employees whole for
any loss of pay suffered as a result of the discrimination against
them.
Clifford Mattox Raymond Tripp
Fletcher Myers Loren A. Womble
J. D. Taylor Charles A. Yost
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL reimburse all employees for any loss of wages in-
curred as a result of the employment of pipefitters in our ship
during 1957, excluding losses incurred as consequence of the
strike.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their right of self-
organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection or to
refrain from any and all such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
W. L. Rivas COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges of unfair labor practices duly filed by Sheet Metal Workers Inter-
national Association , AFL-CIO, the Charging Union, against W. L. Rives Company,
the Respondent , and upon complaint alleging violations by the Respondent of
Section 8(a)(1), (3 ), and (5 ) of the National Labor Relations Act, and controvert-
ing answer thereto, a hearing was held before the Trial Examiner at Jacksonville,
Florida, on January 5, 6, and 7, 1959. All parties were represented thereat and
afforded full hearing and opportunity for oral argument and briefs . On February
11, 1959, the Respondent filed a brief , which has been considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
W. L. Rives Company , the Respondent , is a Florida corporation with its principal
office and place of business in Jacksonville , Florida, where it is engaged in sheet
metal fabrication.
During the calendar year 1957 , in the course and conduct of its business operations,
W. L. Rives Company shipped goods valued at more than $50,000 from its place
of business to points outside the State of Florida.
II. THE LABOR ORGANIZATIONS INVOLVED
Sheet Metal Workers International Association, AFL-CIO , Local 571 thereof, and
Local 234, United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL -CIO, are all labor
organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
About June 16, 1958, at a time when it was negotiating with the Sheet Metal
Workers for a collective -bargaining contract, the Respondent contracted out work
i'4. L. RIVES COMPANY 777
performed within the appropriate unit. The reason for this action was that the
Respondent might secure the label (referred to as the "UA label") of the Plumbers
and Pipefitters Union on such work, approval or assent by that Union being
required by certain of the Respondent's customers as a condition of acceptance of
the Respondent's products. About July 1, 1958, all but three of the Respondent's
employees went on strike-whether in protest of the subcontracting or whether in
pursuance of contract demands is disputed. The strike was settled in late September.
At its conclusion six striking employees were refused reinstatement. The Respond-
ent's reason for refusing to reinstate those employees was that they had been
replaced during the strike.
Subsidiary questions aside, the issue is whether the Respondent was entitled to
subcontract its work for the purpose and in the manner described. If it was so
entitled the Respondent's action was legal and the strike not the result of unfair
labor practices. In such a circumstance the striking employees, if validly replaced,
were not entitled to reinstatement. We turn now to the specific facts.
B. The facts
1. The UA label
The Respondent manufactures and fabricates to order corrosion resistant pipe
and fittings-such as elbows and T's-principally of stainless steel, for installation
in industrial machinery of various kinds. After forming of the pipe and fittings the
component parts may be assembled or fitted by the Respondent in its shop and by
its employees. However, the work of installing the assembled material at its ultimate
destination is not done by the Respondent. That operation is performed at the job-
site by other contractors or employers.
The actual work of installing the fabricated and assembled pipe at the point of
destination may be done by pipefitters, members of the Plumbers and Pipefitters
Union, of which Local 234 is an affiliate. That Union claims the right to decline
to install work not bearing the UA label, that is, work not fitted or assembled by its
members or having its approval. Contracts between the Pipefitters Union and
contractors or installers sometimes require that assembly of pipe be done by journey-
men members of the Pipefitters Union. Consequently contractors or employers at
the jobsite sometimes specify or require the UA label on pipe to be supplied by their
contractors or subcontractors.'
In the instant case the Respondent, though never under contract with the Pipe-
fitters Union-and hence not entitled to the UA label-seems not to have had any
substantial difficulty prior to 1958 in securing acceptance of its pipe or in procuring
its installation. The testimony of the Respondent's president, W. L. Rives, discloses
that in the past when the queston of acceptance of the Respondent's work was raised,
J. W. Bryan, business agent of Local 234, "cleared" the work for the Respondent
upon request.
2. The certification of the Sheet Metal Workers
However, on November 15, 1957, in an election held under the auspices of the
Board, the Respondent's employees selected and designated the Sheet Metal Workers
as their collective-bargaining representative, which was duly certified as such in an
appropriate bargaining unit, hereinafter described. Local 234 of the Pipefitters
Union also participated in this election and was on the ballot. Thereafter the
Respondent and the Sheet Metal Workers commenced negotiations for a collective-
bargaining contract. The negotiations extended into September 1958 before being
successfully concluded, following a strike which began in July 1958. Concurrently
the following events were also taking place.
3. The Bowaters project
In the spring of. 1958 the Respondent bid on a large job involving the expansion
of a papermill of Bowaters Southern Paper Corporation at Calhoun, Tennessee. The
contract for installation at this project was held by Jamison Company, Inc., mechan-
ical contractors. Jamison's employees at that location were represented by Local
43 of the Pipefitters Union. The specifications on the project contained provisions
the sum of which was to require the pipe to bear the UA label or to have UA
See, for example, The Detroit Edison Company, at at ,, 123 NLRB 225.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approval.2 The job involved a large amount of work for employees of the Respond-
ent. The Respondent's president, W. L. Rives, immediately discussed the problem
with the Sheet Metal Workers Union, which could not give him any assurance that
the work would be accepted by the Pipefitters. The Respondent then contacted
Business Agent Bryan of Pipefitters Local 234 who said that the work would be
acceptable.
In due course the Respondent was awarded the contract, and purchased some
$90,000 worth of materials with which to commence work. Thereafter Business
Agent Bryan of Pipefitters Local 234 advised the Respondent that his prior assurance
of UA acceptance could not be carried out because "Washington" would not permit
it to be done. Efforts on the part of the Respondent to adjust the matter, including
appeals to and meetings with the unions involved, were unsuccessful.
In one such meeting in late May with the Sheet Metal Workers' shop committee
the Respondent's vice president, C. D. Sharman, Jr., said with reference to the nec-
essity for having UA approval of the work: "You can call it blackmail, you can call
it buying, you can call it anything you want to, but . . . we have to have those jobs."
4. The subcontracting
The Respondent's contract on the Bowaters job contained a penalty clause for
nonperformance. When it became apparent that failure of the Respondent to secure
UA approval threatened performance of the contract, representatives of Bowaters,
Jamison, and the Respondent met and discussed the problem. As a consequence a
plan was proposed whereby the Respondent would subcontract to Jamison the as-
sembly work on the Bowaters job. This plan was ultimately adopted on June 16,
1958. It provided, in sum, that Jamison would perform the assembly work required
in connection with the Bowaters order, on a cost-plus-fee basis. The purpose of the
arrangement was to enable the assembly work to be done by members of the Pipe-
fitters Union, and thus to secure the UA label or approval. About the same time
the Respondent announced its decision to the employees at a meeting in the plant.
At this meeting the Respondent's vice president, C. D. Sharman, Jr., told the
assembled employees that their work was not being accepted in the field because it
did not bear the UA label, and that the Respondent was liable for a penalty for
nonperformance of the Bowaters contract. Sharman then said that the Respondent
was subcontracting to the Jamison Company the work requiring the UA label, and
that pipefitters would be coming into the shop to assemble such work. When em-
ployees expressed concern at the effect of this action upon their jobs, Sharman told
them that the arrangements would provide more work and more job security.
Sharman also told the employees that by securing a certification of representatives
from the NLRB, they had tied the Respondent's hands with respect to getting the
UA label.
On June 18, 1958, Jamison Company, Inc., began to bring pipefitters into a
designated portion of the Respondent's shop. Employees of the Respondent who
were working in that area were removed to another part of the plant. A red line
was painted on the floor to mark off the Jamison site. The pipefitters then pro-
ceeded to do the assembling of all the Respondent's work requiring the UA label.
In September and October 1958, respectively, the Respondent contracted to fabricate
and deliver pipe to the Grinnel Company and to the McGinnis Company on two
other projects unrelated to Bowaters. In order to have the pipe and fittings accepted
for installation by members of the Pipefitters Union the Respondent subcontracted
to Jamison the assembling of that work, and it was performed in the Respondent's
shop in much the same manner as in the case of Bowaters.
All the pipefitters brought into the Respondent's plant were members of the
Pipefitters Union, supplied to Jamison at its request by Business Agent Bryan of
Local 234. During the period of their employment in the Respondent's plant their
number varied from 3 to 12. They remained in the plant performing assembly
work until the completion of the jobs, which was about November 21, 1958. During
that period of time the Respondent's employees no longer did any assembly work on
jobs requiring the UA label or approval. The Respondent's employees (fitters) who
had previously done that work were given other employment in the shop.
2 The Respondent's specifications provided :
Fabrication of this material [is] to be performed under conditions and shop practice
which will permit erection by Field Forces normally used and now in our employ.
The field forces referred to are pipefitters, members of the Pipefltters Union.
W. L. RIVES COMPANY 779
5. The strike and the denial of reinstatement
Despite Vice President Sharman's assurances concerning their employment, pre-
viouslyadverted to, the Respondent's employees continued to evoke concern for
their jobs because of the presence of the pipefitters in the shop. On June 27, 1958,
International Representative Manis of the Sheet Metal Workers Union filed a
charge of unfair labor practices against the Respondent in connection, inter alia,
with the subcontracting. On the same day the employees held a union meeting and
voted to strike. The strike began on July 1. It continued until about September 25,
1958, when a contract was signed between the Respondent and Local 571 of the
Sheet Metal Workers Union. At the conclusion of the strike six strikers, including
several union officers, were denied reinstatement because they had been replaced
during the strike.3
During the period of time from the certification to the end of the strike the
Respondent and the Sheet Metal Workers were bargaining for a contract. During
those negotiations the parties frequently discussed the problem of work acceptance.
In the discussions the Respondent pointed out the difficulties it faced in that regard.
It sought to have a clause inserted in the contract whereby the Sheet Metal Workers
would guarantee work acceptance in the field. This the Sheet Metal Workers refused
to give.
During the negotiations in May or June the possibility of the Respondent sub-
contracting the work as a solution to the problem was adverted to, without, however,
reference to any concrete proposal. On such occasions the Sheet Metal Workers
representative, Manis, indicated that he would have no objections to subcontracting
the assembly work if satisfactory contract terms could be arrived at. As has been
seen , no agreement was arrived at until late September, and this did not involve
acquiescence by the Sheet Metal Workers to the subcontracting. The evidence
does not indicate that any specific proposal respecting subcontracting was ever
submitted by the Respondent.
During the period of the controversy the Respondent also sought relief from the
situation through its legislative representatives who endeavored to assist on the
Respondent's behalf. However, the Respondent declined to file a charge of unfair
labor practices against Local 234 of the Pipefitters Union, a course of action sug-
gested to the Respondent. Its reason for so declining was that such action might
prejudice the Respondent's relations with customers.
C. Concluding findings
1. Contentions
The contention of the General Counsel is that the subcontracting was in violation
of Section 8(a)(1), (3 ), and (5) of the Act, in that it involved discrimination
against employees, was effected without notice to or consultation with the certified
representative, and constituted dealing with the Pipefitters Union and dealing directly
with employees.
The complaint further alleges that the strike of July 1 was caused by those unfair
labor practices, and was consequently an unfair labor practice strike.
There is little dispute as to the facts. The questions are mainly of law. Thus
it is conceded by the Respondent that the subcontracting was effected in order to
secure the UA label or approval, and it is conceded by the General Counsel that
the Respondent was motivated by what it considered economic necessity.
The Respondent's contention is that the issues involve management prerogatives,
specifically: (1) the right to subcontract for purely economic reasons and (2) the
right to transfer from one job to another. The Respondent contends that the
employees were not deprived of anything as a consequence of the subcontracting; it
points out that all employees who were displaced by Pipefitters continued to be
employed until the strike. Indeed, the Respondent says that the subcontracting in
a The strikers refused reinstatement and the dates thereof are:
Clifford Mattoa_________________________________________________ Sept. 29, 1958
Pletcher Myers------------------------------------------------- Sept. 29, 1958
J. D. Taylor-------------------------------------------------- Sept . 29, 1958
Raymond Tripp------------------------------------------------ Sept. 29, 1958
Charles A. Yost------------------------------------------------ Sept. 29, 1958
Loren A. Womble---------------------------------------------- Oct. 2, 1958
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact enabled the Respondent to provide work , and this was an actual benefit to the
Respondent 's employees . The Respondent additionally asserts that it discussed the
matter of the subcontracting with the Sheet Metal Workers representatives. The
material facts have been previously stated.
We turn first to the 8 ( a) (3) allegations.
2. The discrimination
An employer may, of course, suspend his operations or change his business
methods so long as in so doing he is not motivated by the intention to avoid his
obligations under the Act, and does not thereby do so. N.L.R .B. v. The Houston
Chronicle Publishing Company, 211 F. 2d 848 (C.A. 5); N.L.R.B. v. Adkins Trans-
fer Company , Inc., 226 F. 2d 324 (C.A. 6); National Gas Company, 99 NLRB 273,
279; Bill Heath, 94 NLRB 782, 800-801 ; See also Administrative Rulings of the
General Counsel , cited by the Respondent : F-245, 41 LRRM 1277; F-470, 42
LRRM 1387; F-661 , 43 LRRM 1055. He may not, however , encourage or dis-
courage union membership by discriminating against employees in their hire or tenure
or the terms and conditions of their employment. The first question to be decided
in the instant case is whether there was discrimination against employees ; the second
is whether , if so, it was such as to encourage or discourage union membership.
In my opinion both questions must be answered in the affirmative.
The Respondent withdrew from its employees the right or privilege of performing
the fitting or assembling work, which they had theretofore performed. In so doing
the Respondent adversely changed the employees ' terms, conditions , and tenure
of employment . Such action being taken for the purpose of having the work
performed by members of the Pipefitters Union, and being substantially a result of
the employees not having membership in that Union , constituted discrimination in
the sense of the statute.
Changes in the terms or conditions of employment of employees consequent upon
the fact or absence of union membership or designation are discriminatory within
the meaning of the Act. That the Respondent 's employees suffered no immediate
reduction in wages or hours is not dispositive . Discrimination is not confined to
situations producing immediate monetary loss. The protection of Section 8(a)(3)
extends "to all elements of the employment relationship which in fact customarily
attend employment . . ." (N.L.R.B. v. Waterman Steamship Corporation , 309 U.S.
206, 218 ). Reduction of seniority is "clearly discriminatory" (Radio Officers'
Union etc . v. N.L.R .B. (A. H. Bull Steamship Company ), 347 U .S. 17, 39). So is
the granting of superseniority to nonstrikers (Olin Mathieson Chemical Corporation
v. N.L.R .B., 232 F. 2d 158, 160-162 (C.A . 4), affd . 352 U .S. 1020 ); refusal to
grant leave to attend a Board hearing (N.L.R.B . v. Stratford Furniture Corporation,
202 F . 2d 884, 886 (C.A. 5)); or transfer to a less desirable situation ( N.L.R.B. v.
Southeastern Pipe Line Co., 210 F. 2d 643 (C.A . 5) ). As the court of appeals said
in the case of Continental Oil Company v. N.L.R .B., 113 F . 2d 473, 484 (C.A. 10) :
The act does not interfere with the exercise of the normal right of an
employer to discharge or ,transfer employees in the course of business. But
there is little room for doubt that the transfer of an employee, or the change
in status of an employee from permanent to temporary , traceable to member-
ship in a labor union or to activities on behalf of a bargaining agency, consti-
tutes discrimination within the interdiction of section 8(1) and ( 3). [Emphasis
supplied.]
That principle seems applicable here.
But in any event the Respondent 's action had the ultimate effect of causing wage
losses. Thus there were fitters among the group refused reinstatement in September
because there was no work for them to do. At that time Pipefitters were performing
tasks which those fitters had formerly performed.
Admittedly the Respondent was not actuated by a desire to discriminate against
its employees or by an antiunion animus. Its wish was to assure compliance with
its contract . The Respondent had no desire to punish employees for having chosen
the Sheet Metal Workers , or to encourage them to join the Pipefitters . Specific
intent to encourage or discourage union membership is not, however, an indispen-
sable element of violation of Section 8(a) (3). Equally proscribed is conduct which
inherently encourages or discourages union membership . In the case of Radio
Officers' Union , etc. v. N.L .R.B. (A. H . Bull Steamship Company ), 347 U.S. 17,
44-45. in so holding , the United States Supreme Court said:
W. L. RIVES COMPANY 781
This recognition that specific proof of intent is unnecessary where employer
conduct inherently encourages or discourages union membership is but an
application of the common-law rule that a man is held to intend the foreseeable
consequences of his conduct.
It would seem unnecessary to demonstrate that the Respondent's action here in
subcontracting the work under the circumstances indicated inherently would tend to
discourage membership ;in the Sheet Metal Workers Union and encourage member-
ship in the Pipefitters Union. The jobs of employees of the Respondent were
changed and work taken from them as a direct consequence of their lack of member-
ship in the Pipefitters Union. For it is clear that had they held such membership
there would have been no occasion for their transfer and it would not have occurred.
An employee may be deprived of employment because of lack of union membership
only where there is a valid union-security clause requiring such membership as a
condition of employment. Here there could be no valid requirement that the
Respondent's employees be members of the Pipefitters Union.
The economic pressure to which the Respondent was subjected is not a defense.
Thus, a boycott (N.L.R.B. v. Gluek Brewing Company, et al., 144 F. 2d 847
(C.A. 8)) or a threat of strike (N.L.R.B. v. Star Publishing Co., 97 F. 2d 465
C.A. 9)) by a union seriously affecting an employer's business does not justify
depriving of employment or transferring employees who refuse to join the boy-
cotting or threatening union. In the Gluek case the Teamsters Union instituted a
boycott against the brewing company in order to compel the company's drivers to
affiliate with the Teamsters, against the drivers' wishes. To avoid the effects of
that action the Company contracted out its delivery operation to an employer who
had a collective-bargaining contract with the Teamsters. In holding that action
unlawful the court of appeals said (id. 853) :
[The evidence] shows that Gluek was satisfied with its long existing delivery
arrangement; that the trouble was entirely caused by the economic pressure by
Teamsters in their effort to compel the Gluek drivers to transfer their alle-
giance from Brewers to Teamsters; that this pressure was so effective that it
forced Gluek to act; that this action was motivated, in large part if not entirely,
by the purpose of avoiding disruption and loss of business . . . .
i • • • t a 4
It is clear that [Gluek] had no purpose-in the sense of animus or desire-to
injure one [union] or to help the other. Its underlying and compelling pur-
pose was to save itself. But to accomplish this result, it consciously inter-
fered in a labor situation by actively favoring one union over another. This
was properly held by the Board to be an unfair labor practice under the Act
because economic interests of an employer are not valid reasons for violation
of the Act.4
I see no material distinction between withholding or withdrawing work from
employees because of their refusal to join 'a particular union, and in withdrawing
work from a certified bargaining unit without its consent, in order that the work
may be assigned to members of a union, not a bargaining representative, which
claims jurisdiction over such work.
In any event, even if the action of the Respondent in subcontracting out its work
did not constitute discrimination in violation of Section 8(a)(3), it was violative
of Section 8(a)(1). The loss of employment opportunity and involuntary transfer
from one job to another as a direct consequence of having chosen or elected a par-
4It has been repeatedly held that threats of economic reprisal by third parties (Idaho
Potato Growers, Inc. v. N.L.R.B., 144 F. 2d 295, 302-303 (C.A. 9) ), possibility of economic
loss, or business motivation are not justifications of unfair labor practices. Republic
Aviation Corporation v. N.L.R.B., 324 U.S. 793; N.L.R.B. v. National Broadcasting Com-
pany, Inc., et al., 150 F. 2d 895, 900 (C.A. 2) ; General Motors Corporation, 59 NLRB
1143. 1154-1155, enfd, 150 F. 2d 201 (C.A. 3) ; West Virginia Glass Specialty Company v.
N.L.R.B., 134 F. 2d 551 (C.A. 4) ; N.L.R.B. v. Goodyear Tire & Rubber Company, 129
F. 2d 661, 664 (C.A. 5) ; The Atlas 'Underwear Co. v. N.L.R.B., 116 F. 2d 1020 (C.A. 6) ;
N.L.R.B. v. Hudson Motor Car Company, 128 F. 2d 528 (C.A. 6) : Allis-Chalmers Manu-
facturing Company v. N.L.R.B., 162 F. 2d 435 (C.A. 7) ; Wilson & Company v. N.L.R.B.,
123 F. 2d 411, 417 (C.A. 8) ; N.L.R.B. v. Graham et al. d/b/a Graham Ship Repair Com-
pany, 159 F. 2d 787 (C.A. 9) ; Wells, Incorporated v. N.L.R.B., 162 F. 2d 457 (C.A. 9) ;
N.L.R.B. v. Poison Logging Company, 136 F. 2d 314 (C.A. 9).
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticular bargaining representative rather than another has the inevitable tendency
to interfere with, restrain, and coerce employees in the exercise of their right to
join, designate, or select a bargaining representative of their own choosing.
3. The refusal to bargain
It is conceded and found that the Sheet Metal Workers was at all material times
the duly designated collective-bargaining representative of the Respondent's em-
ployees in the appropriate unit. The unit is set out in the Conclusions of Law
hereinafter.
The action of subcontracting work and transferring employees for the reason
stated was violative of Section 8(a)(3) and (1). It was also under the circum-
stances a refusal to bargain.
The subcontracting resulted in the revision of working conditions contrary to the
statute and without the consent of the bargaining representative or of the affected
employees. In sum, the subcontracting was merely a means of dealing with the
Pipefitters with respect to certain of the Respondent's work, rather than with the
Sheet Metal Workers. Faced with the possibility of rejection of the work without
the UA label, the Respondent revised the appropriate unit and ceased to deal with
the Sheet Metal Workers in the severed portion. In so doing the Respondent
evaded the Board's certification and deprived employees of work properly belonging
within the appropriate unit in which the Sheet Metal Workers was the certified repre-
sentative. The Respondent thus effectively assigned the work to the Pipefitters.
This I believe improper under existing authority. Winslow Bros. & Smith Co.,
90 NLRB 1379.
Under the circumstances the Respondent's action was in derogation of the status
of the bargaining representative, an evasion of its authority, and a refusal to bargain.
That the possibility of subcontracting had been adverted to previously in the nego-
tiations, without reference to any specific situation, did not constitute negotiation
of the issue. Indications of willingness by the bargaining representative to consider
subcontracting if appropriate agreement could be reached did not constitute authori-
zation to the Respondent to effect the subcontracting without such agreement.
Whether the bargaining representative could legally authorize subcontracting where
its effect is to discriminate against employees need not be decided. It is enough
that it did not do so here.
The Respondent contends that the Sheet Metal Workers made no protest after the
announcement of the subcontracting-meaning thereby that the Union made no
representations to the Respondent concerning it. It seems quite clear that any such
remonstrations would have been futile. By the time of the announcement the pro-
gram was a fait accompli and a matter of contract. Moreover the Sheet Metal
Workers did protest in decisive manner. It filed unfair labor practice charges and-
as will be seen-went on strike. In any event the Union's failure to react would not
legalize the Respondent's action if initially improper.
4. The cause of the strike
The Respondent contends that in any event the strike was not the consequence
of unfair labor practices, but rather was economic in character-designed to compel
the Respondent to agree to the Sheet Metal Workers' bargaining demands. It is my
judgment that the evidence indicates the contrary.
The credited testimony establishes that the strike vote was taken, and the strike
followed, as a consequence of concernamong the employees for their jobs follow-
ing the announcement of the subcontracting. The Respondent, however, points to
a number of facts as supporting its contention. These are the following.
The strike began on the same day as a strike by Local 435 of the Sheet Metal
Workers Union against the Jacksonville Sheet Metal and Roofing Contractors
Association. That strike was caused by failure of Local 435 and the Association
to agree on terms for renewal of a collective-bargaining contract. One Stalvey,
business agent for Local 435, participated in some of the negotiations regarding the
Respondent's employees. Local 571. the Respondent's local, no doubt knew of
Local 435's plans. Picket signs were obtained from the same source, a union sign
painter.
Other facts, however, indicate that Local 571's strike had no connection with
Local 435's.
Thus the undenied testimony is that there was no relation between the strike action
of the two locals. The locals are separate and independent entities. Local 435 is
a building trades local, 571 is a production workers local. Stalvey's presence in
W. L. RIVES COMPANY 783
discussions involving Local 571 appears to have been purely in an advisory capacity.
The Respondent is not a member of the Jacksonville Sheet Metal and Roofing Con-
tractors Association, though it has on occasion in the past followed the Association's
wage pattern. The contract demands of the two locals were different. The two
strikes were settled at different times and on dissimilar terms. There were no joint
or related negotiations. The credited evidence is that at no time in Local 571's
deliberations and decision to strike were any representatives of Local 435 present,
nor was there any reference to Local 435 or to its action. That the strike signs were
painted by the same painter does not of course establish ^a joint course of action.
The evidence is to the effect that the only cause of the strike at the Respondent's
plant was the action of the Respondent in subcontracting. Under those circum-
stances it must be found that the strike occurred solely as a consequence of the sub-
contracting and in protest of it. It was therefore an unfair labor practice strike.
But even if economic reasons were found to have been a part of the motivation
for the strike, it would nevertheless still have to be concluded that the strike was
an unfair labor practice strike. This is so because the unfair labor practices were a
contributing cause of the strike. In such circumstances a strike is an unfair labor
practice strike (N.L.R.B. v. Birmingham Publishing Company, 262 F. 2d 2 (C.A.
5)) and at its conclusion the strikers were entitled to reinstatement.
5. General conclusions
Upon the basis of the foregoing considerations it is found that by subcontracting
out work within the appropriate unit for the purpose of securing the UA label or
approval, thus depriving Respondent's employees of that work, and by refusing at
the conclusion of the strike to reinstate the strikers heretofore named,, the Respondent
discriminated against its employees, discouraged membership in the Sheet Metal
Workers Union, the employees' elected representative, and encouraged membership
in the Pipefitters Union. It is further found that by that action, and by failing to
negotiate with the Sheet Metal Workers thereon the Respondent refused to bargain
with the Sheet Metal Workers. It is further found that by all the aforesaid conduct
the Respondent interfered with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act.
Of course the decision here does not mean that affiliation with a labor organization
confers immunity from loss of or reduction of employment for legitimate buisness
considerations, even where the loss might flow from union demands. There is an
area wherein union affiliation or action may set up conditions leading to legal
deprivation of employment. Thus economic strikers may be replaced. And union
requirements may be such as to necessitate abandonment of operations (N.L.R.B. v.
Adkins Transfer Company, Inc., 226 F. 2d 324 (C.A. 6)). The instant situation,
however, is of quite different character.
In the situations cited the employees are responsible for the creation of the condi-
tions or compulsions exerted upon the employer. Whatever consequences ensue
from legitimate employer response thereto, the cause is the employees' pressure
for certain conditions of employment; the cause is not their union membership,
affiliation, or designation. Here the Respondent was not attempting to meet a prob-
lem created by or resulting from demands or standards of the Sheet Metal Workers.
Instead the Respondent was seeking to satisfy the demands of the Pipefitters-a union
which did not represent the Respondent's employees-on other employers. The
Respondent's dilemma was the product of its own contractual commitments and the
pressure of the Pipefitters. It was not ascribable to the intransigence of the Sheet
Metal Workers or to any situation which the Sheet Metal Workers caused or which
they had the power to relieve.
The Respondent was, of course, in a difficult position and through no fault of its
own. In resolving its predicament, however, it chose a course of action inconsistent
with the statute. It scarcely needs observing that the Respondent should not have
been subjected to pressures of this kind. But as has been indicated, the Respondent's
exigencies did not justify capitulation at the expense of its employees. Moreover, a
remedy was available which might have relieved the oppression. That was the
filing of unfair labor practice charges against the Pipefitters. But the Respondent
chose, for more expedient considerations, not to take that course. Under such
circumstances it cannot be said that the Respondent exhausted all possibility of
solution before taking the critical step which it did.5
5 See The Detroit Edison Company, et al., 123 NLRB 225, where the Board ordered the
Pipefitters Union and its Local 636 to cease and desist from implementing a boycott of
pipe prefabricated by employees not members of the Pipefitters Union.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
What the result would be if the Respondent had permanently subcontracted the
fitting or assembling work is not presented and need not be determined . The sub-
contracting here was merely a temporary device to enable the disputed work to
acquire the UA label. It is therefore analogous to a temporary lockout rather than
to a permanent abandonment of operations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices it will
be recommended that it cease and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act.
It having been found that the Respondent discriminated against employees by
subcontracting under the described circumstances , and by refusing reinstatement
to employees Mattox, Myers, Taylor, Tripp, Womble, and Yost, it will be recom-
mended that the Respondent make its employees whole for any loss of wages
suffered as a result of the discrimination against them . It will also be recommended
that the Respondent offer to Mattox, Myers, Taylor, Tripp, Womble, and Yost im-
mediate and full reinstatement to their former or substantially equivalent positions
and make them whole for any loss of wages attributable to the Respondent 's action,
the remedial action to be in accordance with the Board 's usual policies and pro-
cedures applicable thereto.
It will be further recommended that the Respondent bargain collectively with the
union upon request.
On the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Sheet Metal Workers International Association , AFL-CIO, and Local 571
thereof, and local 234, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, are
labor organizations within the meaning of Section 2(5) of the Act.
2. All production and maintenance employees at the Respondent Company's
Sheet Metal Fabrication Plant, Jacksonville , Florida, excluding all office clerical
employees , plant clerical employees , professional employees , draftsmen-estimators,
guards, watchmen , and all supervisors as defined in the Act, constitute a unit ap-
propriate for the purpose of collective bargaining within the meaning of Section
9(b) of the Act.
3. Sheet Metal Workers International Association , AFL-CIO, is, and has been
at all times since November 15, 1957, the exclusive representative of the employees
in the appropriate unit for the purpose of collective bargaining , within the meaning
of Section 9(a) of the Act.
4. By discriminating in regard to the hire and tenure of employment of employees,
thereby discouraging membership in Sheet Metal Workers International Association,
AFL-CIO, and encouraging membership in United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, and Local 234 thereof, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) of the Act.
5. By refusing to bargain collectively with the Sheet Metal Workers International
Association , AFL-CIO, the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (5) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]