Wood, Wire and Metal Lathers International Union

National Labor Relations Board - Board Decisions

Dec 18, 1951

97 N.L.R.B. 574 (N.L.R.B. 1951)

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees vote "yes" to the first question, indicating their wish to be
included in a unit with the nonprofessional employees, they will be
so included. Their votes on the second question will then be counted
together with the votes of the nonprofessional voting group (a) to
decide their representative for the Employer-wide unit described in
group (a), and the Regional Director conducting the election directed
herein is instructed to issue a certification of representatives to the
labor organization for whom a majority of the employees voting cast
their ballots. If, on the other hand, a majority of the professional
employees voting in group (c) vote against inclusion, they will not be
included with the nonprofessional employees, and their votes on the
second question will then be counted to decide whether and which labor
organization they want to represent them in a separate professional
Unit.Y8
[Text of Direction of Elections omitted from publication in this
volume.]
38 Ohio Steel Foundry Company, 92 NLRB 683. .
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION, LOCAL No.
234, AFL and AcousTI ENGINEERING COMPANY
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION, LOCAL No.
234, AFL and LATHING AND PLASTERING CONTRACTORS ASSOCIATION
OF ATLANTA . Cases Nos. 10-CC-f 4 and 10-CC-25. December 18,
1951
Decision and Order
On September 14, 1951, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, 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. Thereafter the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 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 brief, and the entire record in the
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three-member panel [Chairman Herzog and Members
Houston and Murdock].
97 NLRB No. 84.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 575
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and cor-
rections 5
1. We agree with the Trial Examiner that the Board has jurisdiction
of this proceeding a and that it will effectuate the policies of the Act to
assert such jurisdiction.4
2. In adopting the Trial Examiner's finding that the Respondent
Union violated Section 8 (b) (4) (A) and (B) of the Act, we do not
rely on its refusal to furnish lathers to Seibold for the completion of
the Goodyear Rubber job. We find it unnecessary at this time to
decide whether this refusal constituted a violation of the secondary
boycott provisions of the Act.
3. We reject as without merit the Respondent Union's contention
that, because the lathers continued to work for the lathing subcon-
tractors on jobs other than those at the Atlanta Journal and Standard
Oil buildings, no work stoppage occurred.
4. We agree with the Trial Examiner's finding that objects of the
Respondent Union's course of action were (a) to force the general
contractors to cease doing business with Acousti, and (b) to require
Acousti to bargain with it as the representative of Acousti's employees,
although the Union had not been certified as bargaining representative
of such employees. It is immaterial that other objects of the Respond-
ent Union's strike action may have been lawful .-9
5. We also agree with the Trial Examiner's rejection of the Respond-
ent Union's contention that conversations between the various parties
at conferences with the conciliation commissioner were here privileged.6
There is not the slightest evidence that these conversations were consid-
ered confidential by the participants 7 Moreover, this testimony was
received without objection of any of the parties. It was only in its brief
to the Trial Examiner that the Respondent Union first raised the
-question of privilege; this was too late." Finally, even without this
s The Intermediate Report is corrected by deleting the finding that the Respondent Union
admittedly had no members among Acousti 's employees . The record does not support this
finding.
The Trial Examiner found that at the April 5 conference between Abrams , Farber, Mont-
gomery , and Davis, Davis was requested by Abrams to estimate another job on two different
bases. The record shows, and we find, that Abrams made the request of Montgomery and
not of Davis.
I N. L. R. B. v. Denver Building and Construction Trades Council (Gould & Preisner), 341
U. S. 675; Intl. Brotherhood of Electrical Workers ( Samuel Langer ) v. N. L. B. B., 341
U. S. 694.
4 Truck Drivers Local Union No. 649 , International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , AFL (Jamestown Builders Exchange, Inc.), 93
NLRB 386.
8 N. L. If. B. v. Denver Building and Construction Trades Council ( Gould ,& Preisner), 841
U. S. 675 ; Intl. Brotherhood of Electrical Workers ( Samuel Langer ) v. N. L. If . B., 341
U. S. 694.
8 See Tomlinson of High Point, Inc., 74 NLRB 681.
7 See Wigmore , Evidence ( 3rd ed .), sec. 2285.
8 Franks Bros . Company, 44 NLRB 898, 906 , affd. 321 U . S. 702.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence the record is sufficient to support the Trial Examiner's finding
that objects of the strike action were unlawful.
6. The Trial Examiner properly rejected the Respondent Union's
contention that the case had become moot because the lathers had
returned to work and had completed the jobs. It is quite plain that
the underlying dispute between the Respondent Union and Acousti
has not been resolved. A cease and desist order against the Respond-
ent Union is therefore still necessary .9
7. We agree with the Trial Examiner that in pulling men off the
Atlanta Journal and Standard Oil jobs, the Respondent Union engaged
in a strike, and that it is immaterial that the strike was not accompanied
by picketing or the usual appeals for cooperation by other employees.10
Order
Upon the entire record in this case and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the Respondent, Wood, Wire and Metal Lathers
International Union, Local No. 234, AFL, its officers, representatives,
agents, successors, and assigns, shall :
1. Cease and desist from engaging in, or inducing or encouraging
the employees of K. A. Conway, F. M. Gravier or any other employer
(other than Acousti Engineering Company) to engage in, a strike
or a concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to perform any serv-
ices, where an object thereof is: (a) To force or require A. R. Abrams,
Inc., Wesley and Company, or any employer (other than Acousti
Engineering Company) or other person to cease doing business with
Acousti Engineering Company; (b) to force or require Acousti
Engineering Company to recognize or bargain with Wood, Wire and
Metal Lathers International Union, Local 234, AFL, as the repre-
sentative of its employees unless and until such • labor organization
has been certified as the representative of such employees under
the provisions of Section 9 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of-the Act :
o Local 4, United Brotherhood of Carpenters and Joiners of America (Ira A.
Watson Company ) v. N. L. R. B., 341 U. S. 707 ; N. L. if. B. V. Denver Building and Con-
struction Trades Council ( Henry Shore ), 192 F. 2d 577 (C. A. 10) ; Los Angeles Building
and Construction Trades Council v. Le Baron , 342 U. S. 802 , does not, as contended by the
Respondent Union, justify dismissal of the action for mootness . In that case , the Board
itself requested that the judgment be vacated.
]o Amalgamated Meat Cutters and Butcher Workmen of North America, A. F. L. (The
Great Atlantic and Pacific Tea Company), 81 NLRB 1052.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 577
(a) Post in its Atlanta, Georgia, business office, copies of the
notice attached hereto as Appendix A 11 Copies of said notice, to
be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by an official representative of the Respondent,
be posted by said Respondent immediately upon receipt thereof, and
maintained by it for a period of sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
members of Respondent are customarily posted. Reasonable steps
shall be taken by said Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Appendix A
NOTICE
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 members that :
WE WILL NOT engage in, or induce or encourage the employees
of K. A. Conway, F. M. Gravier, or any other employer (other
than Acousti Engineering Company) to engage in, a strike or
a concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work
on any goods, articles, materials, or commodities or to perform
any services, where an object thereof is: (a) To force or require
A. R. Abrams, Inc., Wesley and Company, or any employer (other
than Acousti Engineering Company) or other person to cease
doing business with Acousti Engineering Company; or (b) to
force or require Acousti Engineering Company to recognize or
bargain with Wood, Wire and Metal Lathers International Union,
Local No. 234, AFL, as the representative of its employees unless
and until such labor organization has been certified as the repre-
sentative of such employees under the provisions of Section 9
of the Act.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL
UNION, LOCAL No. 234, AFL,
By ---------------------------------- --------------
(Title of officer)
ROBERT L. SLATER.
Dated --------------------
11 In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," the words , "A Decree of
the United States Court of Appeals Enforcing."
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
These proceedings, brought under Section 10 (b) of the National Labor Rela-
tions Act as amended (61 Stat. 136), and consolidated by order of the Regional
Director, were heard in Atlanta, Georgia, on July 17, 18, and 19, 1951, pursuant
to due notice to all parties. The complaint issued by the General Counsel of the
National Labor Relations Board' and based on charges filed by Acousti and the
Association, respectively, alleged in substance that since March 1, 1951, the
Union had committed unfair labor practices proscribed by Section 8 (b) (4) (A),
and (B) of the Act by inducing and encouraging employees of prime contractors
and subcontractors on three certain conptruction projects in the city of Atlanta,
to engage in strikes or concerted refusals in the course of their employment to
use, transport, or otherwise handle goods and materials or to perform services,
objects thereof being (1) to force or require the prime contractors on said job
to cease doing business with Acousti (also a subcontractor on said jobs) ; (2) to
force or require Acousti to recognize and bargain with the Respondent as repre-
sentative for certain of Acousti's employees, though not certified as such under
the provisions of Section 9 of the Act. The Union's answer admitted among
other things that it had sought to organize Acousti's employees, that it had no
contract with Acousti, and that it had not been certified.
Respondent's motion, before the hearing, to separate the two cases, was denied
by Trial Examiner Charles L. Ferguson. Respondent renewed its motion at the
hearing and also moved to dismiss the proceeding. Said motions were denied.
All parties were represented by counsel or by representatives, were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to intro-
duce relevant evidence, to argue orally, and to file briefs and proposed findings
and conclusions. Briefs were filed by the General Counsel and the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. JURISDICTION-THE BUSINESS OF THE CONTRACTORS
The relationship between the various contractors and subcontractors on the
projects covered by the complaint is stated in Section III A, infra.
Acousti Engineering Company (the primary employer) is a Georgia corporation
operating in Georgia and Alabama, with its principal office in Atlanta and a
branch office in Birmingham. It is also affiliated, through an interrelation of
directors and principal stockholders, with other Acousti corporations in Florida
and the Carolinas Acousti holds an exclusive franchise in its territory for
acoustical tile ceiling from the Celotex Corporation, of Chicago. Acousti's sales
and services during the past year exceeded $750,000, of which over $250,000 were
in Alabama. Its purchases of materials exceeded $360,000, of which minimum
I The General Counsel and his representative at the hearing are herein referred to as the
General Counsel and the National Labor Relations Board as the Board . The Respondent
Union is referred to as Respondent and as Union , and the charging parties, respectively,
as Acousti and Association.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 579
of 70 percent was purchased outside the State and shipped from the manufac-
turers direct to Acousti's projects.
A. R. Abrams, Inc., is a general contractor operating generally in the south-
eastern States, with a single office in Atlanta from which its entire business is
conducted. It performed annual contracts of $1,500,000, of which 50 percent
was in Georgia and 50 percent outside the State, and it purchased materials
aggregating from $700,000 to $750,000 throughout the area in which it operated.
Its contract on the Journal job was with Atlanta Newspapers, Inc., publisher of
the Atlanta Journal and the Atlanta Constitution, daily newspapers, and covered
the remodeling of the building for use by the editorial staff of the Constitution.
The contract price was $115,000, the subcontract to Acousti was $7,337, and the
subcontract to Conway was $5,220.
Ira H. Hardin Company was a general contractor operating in the south-
eastern States. During the preceding year it had performed contracts aggregat-
ing $1,000,000, all of which were located in Georgia, and it had purchased mate-
rials in excess of $300,000, $200,000 of which were purchased from out-of-State
sources (including materials furnished or supplied to the job for subcontractors).
Of the contracts performed during the year 1950, approximately $750,000 worth
were for General Motors, Southern Spring Bed Company, and Write-Right
Manufacturing Company, all of whom are engaged in interstate commerce. Its
contract with the Goodyear Tire and Rubber Company (of Akron, Ohio) was
for approximately $300,000, and was for the construction of a warehouse for
the storage of automobile tires between shipment and reshipment. Materials for
the job amounted to over $100,000. Acousti's subcontract amounted to $2,249
and Gravier's to'$1,800.
K. A. Conway, a subcontractor on the Journal job, performed contracts in 1950
aggregating $189,000, all in Georgia, of which approximately $114,000 represented
the cost of materials.
Seibold and Neal, a subcontractor on the Goodyear job, performed in 1950
contracts aggregating $230,000, all in Georgia, of which $100,000 represented the
cost of materials. Forty percent of the materials was shipped directly to Seibold
from manufacturers outside the State, and all of the remainder originated out-
side the State with the exception of sand.
F. M. Gravier, subcontractor on the Standard Oil job, operated in the south-
eastern States, with its home office in Atlanta and a branch office in Alexandria,
Louisiana. It performed in 1950, contracts aggregating $750,000, of which over
$320,000 were outside the State of Georgia. Approximately $150,000 represented
the cost of materials, of which at least 90 percent thereof was shipped by the
manufacturers direct to Gravier's projects.
It is concluded and found that ample basis exists for the assertion of juris-
diction, since Acousti's operations, taken together with the operations of the
secondary employees as affected by the conduct involved herein, exceed the
minimum requirements under the Board's current policy. Jamestoum Builders
Exchange Inc., 93 NLRB 386; and see Fairmount Construction Co., 95 NLRB 733.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Wood, Wire and Metal Lathers International Union, Local No.
234, AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES 2
A. Introduction and background
This proceeding concerns the legality of the Union' s acts done in connection
with three separate construction projects in Atlanta, known respectively as the
Atlanta Journal (or 10 Forsyth Street), Goodyear Rubber, and Standard Oil
jobs. The general contractors were, respectively, A. R. Abrams, Inc., Ira H.
Hardin Company, and Wesley and Company (herein called Abrams, Hardin, and
Wesley). Subcontracts for certain lathing and plastering work were let in turn
to K. A. Conway on the Journal job, to Seibold and Neal (herein called Seibold)
on the Goodyear job, and to F. M. Gravier on the Standard Oil job. Acousti
held subcontracts on all three jobs covering the installation of suspended
acoustical ceilings.
The lathing subcontractors above named, together with Bud Fisher, E. L
Thompson Co., and C. E. Atkinson Plastering Company, who were engaged
in similar businesses, had formed the Association, with which the Union had
entered into a contract covering the lathers in their employ. Paragraph 14 of
the contract contained a full description of all work asserted to be within the
Union's jurisdiction and provided that the contractor members of the Associa-
tion should "estimate and contract" all such work. Acousti was not a member
of the Association, had no contract with Respondent or with any other union,
and operated on an open-shop basis, though there was evidence that some of its
employees were members of the Carpenters Union However, its subcontracts
with Abrams, Hardin, and Wesley for the installation of acoustical -ceilings cov-
ered certain operations over which the Respondent Union asserted jurisdiction'
Although admittedly without certification to represent Acousti's employees and
without members among them,' the Union insisted that its own members be per-
mitted to perform those operations. That insistence and the Union's actions
taken to achieve that ultimate objective gave rise to the subject matter of this
proceeding.
Though the complaint was confined to litigating the issue only on the three
jobs above mentioned, the evidence shows unmistakably that they were only
battles in a campaign which the Union had waged with Acousti in Atlanta for
some months to procure for its members all work in connection with the installa-
tion of acoustical ceilings over which it asserted jurisdiction. The record con-
tains frequent references to other jobs on which the Union had asserted its juris-
dictional claims vis-f-vis Acousti. As background evidence the General Counsel
also made an offer.of proof relating to four such jobs on which the Union had
allegedly engaged in practices similar to those charged in the complaint, three of
2 In making the findings herein, the undersigned has considered and weighed the entire
evidence . It would needlessly burden this report to discuss all the testimony on disputed
points Such testimony or other evidence as is in conflict with these findings and is not
specifically discussed hereinafter , is not credited. Actually , most of the salient facts
were admitted by Respondent 's business agent, Davis , on his original appearance on the
stand when he affirmed contents of his prior affidavit given during the Regional Director's
Investigation of the charges.
8 Namely, all light iron furring work , which included 3/4-inch steel channels , 1',,2-inch
steel channels , the hangers for the channels and the clips ; or, stated differently , all the
work behind the title as affixed to the ceilings except some of the T-splines.
, Davis, Respondent 's business agent, readily admitted that the Union did not claim
to represent any of Acousti's employees. Smartt gave contradictory and confusing testi-
mony on the point which fell short of establishing that the employees he referred to were
actually in Acousti ' s employ at the time In any event , Respondent made no claim of
representation at any time during the course of its dealings with Acousti ; and the evidence
does not remotely suggest that the Union ever represented or claimed to represent a
majority of Acousti's employees.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 581
which were outside the limitation period fixed by Section 10 (b). The offer was
rejected because the nature of the controversy had been sufficiently developed
in the record and because the litigation of the additional "background" jobs
would have required an amount of time disproportionate to its importance to
the issues.
Before turning to the evidence which relates specifically to the separate jobs,
reference will be made to relevant portions of the Union's bylaws and working
rules and to other evidence which is of common relation to all of the jobs.
Section 38 of the unions bylaws provided that members were not allowed to
work with outsiders without consent to become members at the next regular
meeting; and Section 39.provided that:
If any member shall accept work where the hands have struck or ceased
work when so ordered by Union, he shall be fined or suspended, as the
Union may decide.
Section 51 provided that a member would also be subject to a fine if he objected
to the business agent coming onto the job or if he interfered with the business
agent in any way in the performance of his duties.
The working rules provided that none but a member of the Union should be
a foreman on its jobs and that none should so act without the approval of the
business agent. • Also by resolution known to its members the Union had adopted
a policy of refusing to work on a job where a contractor was using members of
another craft to perform work claimed by the Union. The Union had a further
policy of "no contract, no work," which was expressly incorporated in its con-
tract with the Association as follows :
The Union shall not furnish lathers to other Lathing and Plastering
Contractors engaged in the same class of work, unless such other Lathing
and Plastering Contractor agree with the terms and conditions of this
Association agreement. The implication as stated is a no contract, no work
clause.
The contractors were free under their contract with the Union to man their
jobs as far as possible with their regular employees, who were union members,
and were also free to shift such employees from job to job without consulting
the Union. However, where additional lathers were needed, the practice was
for the contractors to call upon the Union to supply the men. Referrals were
usually made by Davis, the Union's business agent, who was the Union's official
spokesman during intervals betwleen meetings and who acted with the full au-
thority of the Union in the incidents involved herein.
The Union did not claim to represent the employees of the general contractors
on any of the jobs. No picketing was resorted to on any of the jobs, and there
was no threat to picket except on the Goodyear job. When the lathers left the
jobs as hereinafter recounted, they went onto other jobs for their respective
employers. usually on projects where the same prime contractor had the general
contract. The only difference was that Acousti held no subcontract on any of
the jobs to which the lathers moved.
With one possible exception, no work was done by union members on any of
the three jobs at a time when Acousti's employees were also at work. This was
due in some cases to the fact that work on the two subcontracts was not pro-
ceeding simultaneously and in others to the deliberate arrangement of the gen-
eral contractor in an effort to avoid further work stoppages by the lathers.
B. The Atlanta Journal job
All material evidence establishes that lathers employed by Conway were in-
duced or encouraged by the orders and directions of Davis to engage in three
986209-52r-vol. 97-38
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
separate work stoppages or strikes on the Atlanta Journal job as a result of
the fact that Acousti had the subcontract for the acoustical ceilings. The ques-
tion whether said stoppages were for proscribed objects, as alleged in the com-
plaint, requires more detailed consideration of the evidence.
Davis had learned, before Conway began the lathing work, that Acousti had
the contract for the ceilings. Davis admitted that be thereupon called Abrams,
informed him that Acousti did not use the Union's lathers on that part of the
work which was within the Union's jurisdiction, and testified that :
I suggested that Mr. Abrams try to work out some plan so that the lathers
would not have to work on the job contrary to our policies. I told Mr.
Abrams that we didn't work on jobs where other crafts did part of our
trade jurisdiction and that we worked under contract. I told Mr. Abrams
that we had never been able to do any business with Acousti. .. .
Later, having received a report that Conway's lathers were at work on the job,
Davis went there on March 21 and ordered them off, informing Glenn, Abrams'
job superintendent, in the presence of the lathers that "we would be back when
we could get the contract" for all the lathing work on the job. In subsequent
conversations concerning means for ending the work stoppage, Davis made state-
ments to similar effect to Abrams and to his assistant, Farber. Davis' statement
to Conway was fuller and more illuminating :
I told Mr. Conway that as soon as I could see a contract with Mr. Conway,-
Mr. Abrams, or Acousti Engineering Company assuring the lathers that they
would have all of the lathing work on the job that we would be back. (Em-
phasis supplied.)
Wilkin, Acousti's supervisor of installations, testified that thereafter both
Farber and Glenn called him, referred to the work stoppage, the urgency to com-
plete the job, which was behind schedule and which was causing Abrams finan
cial loss, and stated they wanted to work something out with him on the dispute.
In the meantime, on March 22, Conway had wired John T. Dunlop (the Chair-
man of the National Joint Board for the Settlement of Jurisdictional Disputes in
the building and construction industry) as follows:
RE YOUR LETTER DATED JUNE 29, 1950 ADDRESSED TO WRITER.
I HAVE A CONTRACT WITH A. R. ABRAMS CONTRACTING COMPANY
TO DO CERTAIN LATHING AND PLASTERING ON THE ATLANTA-
JOURNAL BUILDING, ATLANTA, GEORGIA, WHICH DOES NOT IN-
CLUDE ANY ACOUSTICAL CEILING WORK OR PREPARATION FOR
SAME. THESE CEILINGS ARE OF THE SAME TYPE THAT WERE
IN DISPUTE IN LETTER MENTIONED ABOVE. THE LOCAL LATH-
ERS BUSINESS AGENT HAS STOPPED LATHERS FROM WORKING
ON THIS JOB ALTHOUGH ACOUSTICAL CONTRACTOR HAS NO
MEN WORKING ON JOB AT THIS TIME. REASON FOR AGENT
PULLING MEN OFF JOB, IS THAT HE HAS NO ASSURANCE OF
ERECTING LIGHT METAL FURRING CHANNELS AND METAL SUS-
PENSION SYSTEMS FOR ACOUSTICAL CONTRACTOR. REQUEST
THAT YOU HAVE LATHERS RETURN TO WORK FOR ME WHILE
DISPUTE IS BEING SETTLED BETWEEN ACOUSTICAL CONTRAC-
TOR AND LATHERS LOCAL.
Farber had also contacted the Federal Conciliation and Mediation Service ;
and Commissioner Williams called separate conferences on March 22 with Henry
(Acousti's president) and Montgomery, his assistant, and with Davis, Smartt,
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 583
and Farber. Farber testified that although the conference in which he partici-
pated was an exploratory one, the sum and substance of the Union's stand was
that Acousti had no contract with it and that it wanted one and that it was
agreed that Acousti and Conway should be called in and the talks carried further.
Davis' testimony was not related specifically to the happenings at that con-
ference, but Smartt's testimony was directly in conflict with Farber's. Smartt
testified that he explained to the commissioner that the trouble was that the
Union had only a part of the work covered by its contract with Conway, that the
commissioner inquired how the men could be gotten back to work, and that he
(Smartt) suggested first that the general contractor or the subcontractor should
notify the Joint Board, and second, that if the parties to the Union's contract be
brought in, a stipulation to arbitrate might be arranged. The commissioner then
learned that Acousti had the subcontract for the additional work the Union was
claiming and thereupon had Farber to call Acousti's representatives into another
conference. Smartt's testimony is not credited. It is in conflict with Farber's
testimony and with the preponderance of the evidence as to the happenings at
the conference on the ensuing day (next to be adverted to), which established
clearly the Union's recognition that its dispute was with Acousti and which cor-
roborates Farber's above testimony.
Commissioner Williams arranged a conference for the following day, which
was attended by Davis, Smartt, Farber, Montgomery, Conway, and the commis-
sioner . In the meantime, as a result of the first conference, Davis had agreed to
let the lathers go back to work pending further discussions and they had done so.
Farber testified that the Union's position was the same as at the conference the
day before, that is, that Acousti had no contract with it and its purpose was to
have Acousti sign with it, and that culminated in the Union handing to Acousti
its contract proposals for consideration.
Montgomery testified that the point was made repeatedly by Conway, Farber,
Davis, and Smartt that the only dispute was between the Union and Acousti ;
and Conway testified that he specifically asked Davis what grievance he had
with Conway or Abrams and Davis replied he had none a Davis testified he did
not recall Conway or Farber asking him any such question.
Montgomery testified further that reference was made to the fact that Conway
had wired the Joint Board and that Conway asked Davis if he would permit
the men to continue working pending that board's decision. Davis refused unless
some arrangement were made whereby Acousti would use union lathers or
whereby some other contractor who used union lathers would do the work.
Montgomery testified also that during the course of the discussion as to whom
the dispute was with, Davis and Smartt had stated two or three times that they
had no contract with Acousti ; that he asked Smartt whether the contract with
Conway (a copy of which was present) was the one the Union wanted'Acousti to
sign ; that Smartt replied that the Union had a special contract for acoustical
contractors, and submitted a copy to him and asked him if he would sign it. Mont-
gomery also testified that Davis agreed to keep the men working provided
Acousti would sign the contract, but Montgomery explained that he was without
authority to sign the contract and would have to submit it to the principals of
his company.
Davis, when called as the General Counsel's witness, testified :
Well, at this meeting I believe we got Mr. Montgomery to consider dis-
cussing our contract, and see what they thought of it. That is the only thing
that I can recall that we accomplished at that meeting.
5 Farber testified that on a subsequent occasion Davis admitted that he had no grievance
with Abrams or with the building owners.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis admitted that he agreed that the lathers would continue to work on the
job if Acousti would sign the contract which he submitted to it at that meeting,
and conceded that the dispute could have been settled, alternatively, by Conway
taking over the lathing work or by some other contractor doing so who used
union lathers.
Smartt testified that Montgomery spent considerable time citing jurisdictional
awards to the Carpenters Union in various other cases, that he (Smartt ) denied
that the Union had any dispute with the Carpenters , that he contended that the
Union's grievance was because it did not have all the work covered under its
contract with Conway, and that the Union wanted the dispute settled under
the terms of that contract . Smartt testified that in the earlier conference
Commissioner Williams had suggested that Acousti sign a contract with the
Union and had suggested that one be brought to the next conference; that the
question came up on the 23rd by Williams discussing with Montgomery the
question of a contract and that Montgomery asked to see a copy and that Davis
gave him one.6
A third meeting was held on March 26, with the same parties present. The
lathers were still on the job but Acousti had not begun work under its subcon-
tract. The only material development was that Montgomery reported he had
been able over the week end to procure consideration of the Union's contract
by the Company's officials. Smartt testified that the Commissioner suggested
that the Union write Acousti a letter requesting it to accept the contract or
submit a counterproposal and that either Conway or Williams suggested a 10-
day limitation. No other witness testified to such a development at the con-
ference. In any event Davis wrote Acousti on March 26 as follows : -
During our conference with Mr. Montgomery, Representative of your Com-
pany, in the presence of Commissioner Clarence H. Williams of the Federal
Mediation and Conciliation Service located at Room 648, 50-7th Street,
Northeast, Atlanta, Georgia, we presented a proposal to the aforesaid Mr.
Montgomery with reference to agreement for the members of Lathers Local
Union 234, erecting such work as should cover or come under the trade craft
of our union on March 23, 1951 . Therefore , we are requesting your accep'-
ance of such or such counter offers as you may decide to propose not later
than April 1, 1951.
Trusting you can see your way clearly to consider this matter and hoping
to do business with you in the future. -
On April 2, Montgomery called Davis and told him that on the advice of
counsel Acousti would not sign the contract. Davis admitted that during that
conversation Montgomery stated, among other things, that the Union did not
represent his employees and that it was Acousti 's position that the contract
was illegal and in violation of the Taft-Hartley Act. Although Abrams con-
s Smartt's testimony differed widely from all other accounts of the conferences and
is not credited . Under the credited testimony of Farber , Conway, and Montgomery both
Davis and Smartt had readily recognized that the Union 's dispute was with Acousti only.
Indeed that fact was implicit in Davis ' other acts and statements throughout the dispute.
Furthermore , there was obviously no method by which the dispute could be settled within
the framework of the contract with Conway for the reason that Conway had not been
awarded the subcontract for the acoustical ceiling, Acousti had . That the Union made
no pretense of standing on the letter of its contract with Conway was apparent from
Davis' frequent admissions that the dispute would have been ended either by Acousti
signing a contract or by the work being done by some other contractor who would employ
the Union 's lathers It was obviously that position which led to the Commissioner's
suggestion , testified to by Smartt and Davis , that the Union submit a contract to Acousti
for consideration
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 585
tinned negotiations with Davis and Montgomery in an effort to end the dispute,
Davis on April 4 ordered the lathers off the job, and Davis testified that he
meant for them to stay off the job until the Union obtained a contract covering
all the work it was claiming.
On learning of this stoppage, Abrams and Farber called Davis into a con-
ference on the night of April 4, during which Davis agreed that Conway's lathers
would return and finish the Journal job, "working contrary to our policy," and
Abrams agreed that on all his future jobs he would see to it that members of
the Lathers' Local would get all of the work the Union was claiming.? It was
also agreed that Abrams would arrange with Acousti to remove its men from
the Journal job while Conway's lathers were completing their work. Davis
thereupon notified the lathers through Riggins (Conway's foreman and a union
member) that the lathers might return to work.
A further -conference was held the next day between Abrams, Farber, Mont-
gomery, and Davis in which the foregoing understanding was affirmed, and
• Davis was requested by Abrams, and agreed, to figure or estimate another
job on two different bases, under one of which the portion of the work claimed by
the Union would be eliminated from Acousti's proposal. Abrams promised
to put his agreement with Davis in writing but did not do so.8 In the meantime
the lathers had gone back to complete the Journal job.
Later when Davis reported to Smartt his oral arrangement, Smartt informed
him "you don't have anything." Davis thereupon notified the foreman in sub-
stance that "the job was still unsatisfactory," and the lathers walked off for
the third time. Glenn then called Davis and inquired what could be done
about completing the job, and Davis told him that just as soon as "we could
get a satisfactory settlement they would be back on the job" and that "the
trouble was a partial contract on Conway's part, no contract on Acousti's part,
and a verbal promise on Mr. Abrams' part." (Emphasis supplied.)
Thereafter Conway made repeated demands on Davis that he return the men
to the job, but Davis refused unless the Union got "the full contract" for all
the light metal furring.
On April 13 Conway wrote the Union, quoting a letter of complaint received
from Abrams and demanding that the lathers return and complete the work.
.The Union replied on April 16, calling attention to paragraph 14 of its contract
with the Association and to the fact that Conway's "practice (was) not in
accordance with the express terms of our agreement aforesaid." The letter
also referred to the fact that the Union had no contract with the acoustical con-
tractor on the job and stated that "more drastic action must be taken," unless
a satisfactory settlement could be reached with the Association by noon the
next day.
On April 20 (after the filing of the charge by Acousti) the Union wrote Con-
way that the reason for the first work stoppage was "a partial contract" ; for
the second stoppage, the breaking down of negotiations with Acousti in the con-
ferences with Commissioner Williams ; and for the third one, "because we did
not have nothing." The letter concluded : "Therefore, our position with regard
to this matter, we want to do all the work in the building under the jurisdiction
of our Union or none at all." [Emphasis in original.]
4 Montgomery testified that Acousti had done 50 percent of all of Abrams' suspended
acoustical ceilings over a period of 3 years, or a minimum of from 25 to 30 jobs.
8 The agreement was not carried out. Its effect if carried out would have been either
to deprive Acousti of a portion of the suspension work on the acoustical ceilings which
it customarily bid for, or to require Acousti to recognize and to contract with the Union
for use of its members on said part of the work.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis testified that thereafter on receipt of "advice" from his International
Union, the lathers returned and completed the job after he told them the ques-
tion had been submitted to the Dunlop Board.
On or about May 19, Davis sent the following notice addressed to all general
and subcontractors in the building construction industry in the Atlanta area :
This is to notify you that it is the position of the above named local
union to do all work in the building under the jurisdiction of our local union
or none at all.
C. The Goodyear Rubber job
The Goodyear job covered work on two floors. Seibold's lathers completed
the top floor around March 15, and since the lower floor was not ready, Seibold
shifted his lathers to other jobs. Davis appeared on the job during the interim
and, learning from Hallman, Hardin's job superintendent, that Acousti had
the subcontract for the acoustical ceiling, stated that Acousti did not use
lathers and requested Hallman "to see what (he) could do to get Acousti to
use lathers or to keep Acousti off the job." Davis added that he "hated to put
pickets on the job, but it might be necessary." 6
Hallman , Hardin , and Davis took up separately with Acousti the question
of the Union's assertion of jurisdiction over the light iron furring and the
Union's demand that it be performed by its members, but Acousti refused.
When the second floor became ready for lathing work around April 5, Seibold
did not have available regular employees whom he could shift back to complete
the job and therefore called upon Davis to supply the necessary men. Davis
refused to do so because "someone else was doing part of our work," and stated
that the refusal would continue until satisfactory arrangements were made
with the Union for the remainder of the work which it was claiming. Davis
replied in similar vein to requests by Hardin and Hallman that he return the
lathers to the job. Seibold's foreman, Melton, a union member, also informed
Seibold that employees would not return to the job until the matter was settled.
Thereafter, however, Davis supplied lathers to Seibold on other jobs on which
Acousti held no subcontract.
In the meantime Davis wrote Seibold on April 16, referring to paragraph 14
of their contract and continuing in part as follows :
In view of the light iron furring in the ceiling work which is being
installed by an acoustical contractor which we have no contract with and
such practice is in violation with the aforesaid paragraph.
Therefore, we wish to notify you of such, and unless, a satisfactorily
settlement can be reached with the Lathing and Plastering Contractors'
Association, and you, before Tuesday, at 12 o'clock noon, April 17, 1951,
we will be forced to take drastic action regarding this matter.
On April 20, the Union wrote Seibold a letter whose text was substantially
identical with that sent to Conway on the same date but which was prefaced
by the following :
With reference to labor dispute which started on the Atlanta Journal
Building and which the Goodyear job is involved."
Credited testimony of Hallman . Hardin testified that Davis also requested him to try
to get Acousti to use the Union's lathers.
10 Neither Seibold nor Hardin had any connection with the Journal job, and Abrams and
Conway had none with the Goodyear job . The common denominator was, of course, Acousti.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 587
Shortly after May 1, Davis notified Seibold that the lathers would return
to the job, mentioning certain instructions which he had received from his
international office. The work was thereafter completed without interruption.
D. The Standard OR job
On April 24, at Gravier's request, Davis furnished two lathers to the Standard
Oil job. On reporting and on learning that acoustical ceilings were also to be
installed, the lathers informed Gauthier, Gravier's representative, that they
could not do any work until they found out who was to do the ceilings. They
also reported to Davis that acoustical ceilings were to be installed. Davis called
Gravier between 9:30 and 10:00 o'clock (the lathers having in the meantime
begun work on Davis' orders) and inquired who had the contract for the ceil-
ings. Gravier obtained the information from Wesley's office and phoned Davis
back that Acousti had that subcontract. Gravier testified that :
[Davis] told me at first that he was sorry to hear that, that it looked
like it was going to be some more trouble. Of course, I tried to prevail
upon him at that time to refrain from having any trouble or stoppage of
work and see if something couldn't be worked out and he told me that he
was afraid that he couldn't do that, that he would have to take the men
off the job until they could get a contract for all the work or none of the
work.
Gravier learned at noon that the men had left the job and called Davis again,
inquiring the reason. Davis reiterated that the men were demanding all of
the work or none of it." In subsequent conversations relating to means by
which the work stoppage might be ended, Davis suggested to Gravier that
Gravier attempt to get the portion of the ceiling work which the Union claimed
so that it might be done by union members. 12 Pursuant to Davis' suggestion
Gravier approached Wesley with the proposal that the dispute might be settled
by Wesley's request that Acousti release to Gravier the portion of work which
the lathers claimed, or alternatively that Gravier take over Acousti's contract
entirely and do the ceilings in acoustical plastering. Wesley's representatives
thereafter called Montgomery, informed him the lathers had struck, and re-
quested him "to help work something out." Later the request was made specific,
that Acousti "sub back" to Wesley, as a deduction from its contract, a portion
of the ceiling work, which Wesley proposed to have Gravier do. This would
have effected a partial assignment or cancellation of Acousti's contract. Fol-
lowing this, Lasseter (Wesley's partner) and Gravier discussed with Mont-
gomery certain phases of the proposal, but no agreement was reached, and
Gravier was never asked to quote Wesley a price on the ceilings.
Davis refused Gravier's subsequent requests to return the men to the job,
stating they would stay off until they got all of the work. The stoppage was
ended, however, on May 1, after receipt of instructions from the International,
by Davis and Smartt requesting one of the lathers to return and finish the job.
n Davis did not admit that he directed the men to leave the job, but testified that when
the lathers asked him "what do you want me to do," he replied , "You know as well what to
do as I do." Cf Graeman Co , 87 NLRB 755 ) He admitted the Union 's policy, expressed
by resolution , was that members would refuse to work on a job where a contractor was
using members of another craft to do work claimed by the Union , and testified that he would
have -been surprised if the lathers had not left the job.
12 Wesley ; who met Davis by chance on the job site during the stoppage , testified that
Davis wanted him to have Acousti use union members to erect the ceilings and that Davis
refused Wesley's request to put the lathers back on the job except on condition that they
could have all of the work belonging to their trade.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Concluding findings
To support findings under the foregoing facts that Respondent committed
unfair labor practices in violation of Section 8 (b) (4) (A) and (B), respec-
tively, two factors must combine: (1) Respondent's activities must have con-
stituted inducement and encouragement of employees in the course of their
employment to engage in a strike or a concerted refusal to perform services ; and
(2) Respondent's activities must have had as an object (under subsection (A) )
the forcing or requiring of any employer to cease doing business with Acousti,
or (under subsection (B)) the forcing or requiring of Acousti to recognize or
bargain with Respondent without the required certification. The absence of
either factor will defeat the charges hereunder.
1. Inducement and encouragement
The evidence plainly establishes that on the Journal and Standard Oil jobs,
Respondent, through Davis, ordered, directed, and induced employees of Conway
and Gravier, respectively, to leave their jobs. In common parlance, Davis
"pulled the men off the job." Such action manifestly constituted inducement
and encouragement of employees to cease performing services within the
meaning of the Act.
The issue is not so easily resolved on the Goodyear job because Seibold had
no employees at work at the time Davis demanded the portion of the acoustical
work within the Union's asserted jurisdiction and because his subsequent
actions to enforce that demand consisted simply of refusing to supply lathers
to Seibold to complete the job. The question is whether under these circum-
stances there was inducement of employees in the course of their employment to
refuse to perform services for Seibold.
Of prime significance is the fact that Respondent's dispute on the Goodyear
job was no different either in its character or in its objective from that on the
Journal and Standard Oil jobs. It was in fact a part and a continuation of the
earlier dispute, as recognized by the Union's letter of April 20 to Seibold and
by its letter of April 30 to the Board's field examiner in which it referred to
Conway and Seibold as "partisans and allies" to the dispute on the two jobs.
Furthermore, the realities of the contractual arrangement between the parties,
the employment relation between the contractors and their employees, and the
relation between those employees and the Union disclosed. that in practical
effect the situation on the Goodyear job was identical to that on the other jobs.
Thus, under the Union's bylaws and resolutions Seibold's employees (who were
union members) were forbidden to accept work on the Goodyear job, and
Melton had notified Seibold of their refusal to work thereon until the dispute
was settled. Seibold was effectively blocked from transferring back to the
job either the employees who had started it or any of his other employees, by
the refusal of his employees to work thereon, which refusal had been induced
and encouraged by the Union.i3
It is therefore concluded and found that the Union induced or encouraged the
employees of Conway, Seibold, and Gravier respectively to engage in a strike or
a concerted refusal in the course of their employment to perform services for
their said employers.
13 It is not material In this connection that the Union permitted its members to perform
services for Seibold , Conway, and Gravier on other jobs . That fact is of significance, how-
ever, on Respondent 's contention that Its dispute was not with Acousti . See Section 2,
infra.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 589
2. The objects of Respondent 's actions
The evidence on its face appears clearly to present a case which falls squarely
within the holdings of the Supreme Court in the secondary boycott cases decided
June 4, 1951, particularly N. L. R. B. v. Denver Building and Construction Trades
Council (Gould and Preisner), 341 U. S. 675. In the Denver case, as here, the
primary employer employed nonunion labor (though there was evidence that
some of Acousti's employees were members of the Carpenters' Union). In
Denver the Union's ultimate purpose was to force the general contractor to
make the project an all-union job which could be attained only by forcing the
nonunion subcontractor off the job, s. e., through termination of its subcontract
by the general contractor. Here the Union's ultimate purpose was to obtain
for its members a substantial part of the work covered by Acousti's contract.
That purpose could only have been attained by (a) the general contractor's
termination of Acousti's subcontracts either in whole or by requiring Acousti
to assign or "sub back" a portion of the contract to contractors who would
employ union lathers, or (b) by forcing or requiring Acousti to recognize and
bargain with the Union.
Since the relationship between Acousti and the general contractor was one
of "doing business" (Denver case, supra, citing Metal Polishers Union, 86
NLRB 1243, 1252) one object of the strike was to force the general contractors
to cease doing business with Acousti either in whole or in part. The other
objective of requiring Acousti to recognize and bargain with the Union was both
implicit and explicit in Respondent's attempts to procure a contract from
Acousti and in its efforts to require Acousti to employ its members on all the
work it was claiming. It is not material that the strike or work stoppages
induced by the Union may have had other objects which were legitimate, for
it is not necessary to find that the sole objects of the strike were those proscribed
by the statute, Denver case, supra.
The question remains whether Respondent's various contentions suffice to
remove the case from the orbit of, the above decisions. Those contentions re-
volve mainly around Respondent's basic defense that the sole objective of its
activities was the legal one of obtaining compliance by the plastering con-
tractors with Section 14 of the contract. Those contentions run substantially
as follows : The contractors did not furnish the Union with all the work within
its jurisdiction as required by the contract ; the Union's dispute was not with
Acousti, but was solely with those contractors to obtain compliance by them
with their contractual obligations; and the Union's efforts to secure enforce-
ment thereof was in keeping with its constitution and bylaws.
The evidence does not support Respondent's contentions, but establishes to
the contrary that Respondent's dispute was with Acousti and was due to
Acousti's refusal to contract with Respondent and to employ union members
on operations within the Union's asserted jurisdiction.
The following significant facts lend conclusive support to that conclusion :
(1) Respondent's earlier assertion of its jurisdictional claims vis-A-vis Acousti
on other jobs; (2) Davis' statements on learning of Acousti subcontracts, antici-
pating trouble because "Acousti did not use lathers" and his statement that he
could not do business with Acousti; (3) Davis' requests of the general contrac-
tors that they endeavor to get Acousti to use union lathers; 14 (4) affirmance
by Davis and Smartt in the meetings with Commissioner Williams that the
Union's dispute was -with Acousti and not with Conway or Abrams; (5) the
34 Including particularly his request of Hallman that he try "to get Acousti to use lathers
or to keep Acousti off the job."
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
submission of a contract to Acousti and the demand that Acousti sign it as a
condition of the lathers continuing work on the Journal job; 16 (6) the many
statements by Davis throughout the record conceding that the dispute would
have been settled to the Union's satisfaction by Acousti's signing a contract
with it or by Acousti's work being assigned in whole or in part to any other
contractor who would sign a contract with it; (7) the fact that the striking
employees were permitted by the Union to work for their respective employers
on other jobs and usually under the same general contractors; (8) the fact
that the Union's first assertion of reliance on the breach of its contract by the
subcontractors was belatedly made in its letters of April 16 to Conway and
Seibold; and (9) that it defended its action in its letter of April 30 to the
Board 's field examiner on the ground that it was conducting a lawful strike
for recognition by Acousti.
Nor did it immunize Respondent's action to show that its efforts to secure
enforcements of its demands was in keeping with its constitution and bylaws.
Local 74, United Brotherhood of Carpenters, etc. v. N. L. R. B., 341 U. S. 707.
Respondent also urges that no strike actually occurred on any of the jobs,
that there was no picketing, no unfair list, and no effort made to enlist the
cooperation of other crafts or to persuade other employees to leave the job.
Whether or not there was a strike of the traditional variety, with picketing,
banners, and unfair list, is immaterial. Certainly there was a strike in the
common sense of the word , i. e., a concerted refusal by employees in the course
of their employment to perform services, which is what the statute forbade
the Union to induce or encourage. The other considerations urged by Respond-
ent are equally wide of the mark since the statute forbade the inducing of
employees of any employer to engage in a concerted refusal to perform services.
That Respondent did not engage in all forms of proscribed inducement is imma-
terial; it is the objective of the Union's secondary activities and not the quality
of the means employed with which Congress was concerned. Cf. IBEW v.
N. L. R. B., 341 U. S. 694 quoting with approval from Wadsworth Building
Company, 81 NLRB 802.
Respondent advances other miscellaneous contentions which may be sum-
marily disposed of. Its contention of - misjoinder of parties and proceedings,
reasserted in its brief, was disposed of by denial of its motions to separate the
cases made before and during the hearing. Its defenses of mootness and of
free speech under Section 8 (c) have received earlier and definitive adjudi-
cations. On mootness, see for example, Local 74, United Brotherhood of Car-
penters etc. v. N. L. R. B.; N. L. R. B. v Carpenters, 184 F 2d 60 (C. A. 10),
cert. den. 341 U. S. 947; and on Section 8 (c) see IBEW v. N. L. R. B., supra,
and N. L. R. B. v. Denver Building and Construction Trades Council, supra,
citing and quoting with approval from the Board's decisions in the Gould and
Preisner (82 NLRB 1195, 1213) and Wadsworth (81 NLRB 802, 815) cases.
Nor does the pendency of arbitration proceedings between Respondent and the
plastering contractors, or the consideration of the dispute by the Dunlop Board
preclude this Board's exclusive jurisdiction under Section 10 to hear and
determine charges that unfair labor practices have been committed under the
Act. N. L. R. B. v. Walt Disney Productions, 146 F. 2d 44, 47-49 (0. A. 9) ;
w The testimony of Davis and Smartt that Commissioner Williams suggested they submit
the contract to Acousti is unpersuasive . Were it accepted as literally true, the evidence
establishes that the Union' s statement of its position in the meetings with the Commissioner
had clearly indicated that its dispute was with Acousti . Indeed, Farber testified credibly
that at the first meeting the entire text of the Union's stand had been that Acousti had no
contract with it and that it wanted one.
WOOD, WIRE AND METAL LATHERS INTERNATIONAL UNION 591
Todd Company , Inc., 71 NLRB 192; Wyman-Gordon Company , 62 NLRB 561;
National Union of Marine Cooks and Stewards , 82 NLRB 916. Furthermore,
Acousti , whose charges initiated the present proceedings , was not a party to
the other proceedings nor to the contract under whose provisions they were
invoked . Obviously , no effective determination of the dispute can be made
in the other proceedings since the primary dispute, as herein found , was between
the Union and Acousti, the latter of whom would not be bound by the outcome
of the other proceedings.
There is also no merit in Respondent 's contention that the negotiations for
adjustment of the dispute before the Federal Mediation and Conciliation Service
were privileged. Though it is the consistent policy of that agency not to make
available its representatives or its records where its failure to effect a settle-
ment of a dispute is followed by unfair labor practice proceedings or by other
litigation (See Tomlinson of High Point, Inc., 20 LRRM 1075; Tomlinson of High
Point, Inc., 74 NLRB 681), the Board has recognized the competency of other
evidence concerning such negotiations: Ibid.
It is therefore concluded and found that objects of the concerted activities
induced by Respondent as herein found were (1) to force or require Abrams,
Hardin , and Wesley to cease doing business with Acousti , and (2 ) to force and
require Acousti to recognize and bargain with Respondent as representative of
its employees although Respondent had not been certified by the Board as such
representative. Denver and IBEW cases, supra; N. L. R. B. v. Service Trade
Chauffeurs, Salesmen & Helpers, etc. (Howland Dry Goods Stores) 191 F. 2d 65
(C. A. 2) ; Richfield Oil Corporation, 95 NLRB 1191; Western Inc., 93 NLRB 336.
For reasons which are fully explicated above, the factors necessary to support
findings that Respondent committed unfair labor practices under Section 8 (b)
(4) (A) and (B) have here been found in combine. It is therefore concluded
and found that Respondent has engaged in unfair labor practices under said
Section.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, hereof, occurring in
connection with the operations of Acousti Engineering Company and the other
employers set forth in Section I, hereof, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and tend to
lead and have led to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has violated Section 8 (b) (4) (A) and
(B) of the Act, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case , the undersigned makes the following :
CONCLUSIONS OF LAW
1. Wood, Wire and Metal Lathers International Union, Local No. 234, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. Respondent has engaged in unfair labor practices within the meaning of Sec-
tion 8 (b) (4) ,(A) and (B) of the act by inducing and encouraging employees
of K. A. Conway, Seibold and Neil, and F. M. Gravier to engage in strikes and in
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted refusals in the course of their employment to perform any services
for their respective employers, objects thereof being (a) to force and require
A. R. Abrams, Inc., Ira H. Hardin Company, and Wesley and Company to cease
doing business with Acousti Engineering Company, and (b) to force and require
Acousti Engineering Company to recognize and bargain with Respondent as the
representative of certain of their employees although Respondent had not been
certified by the Board as the representative of such employees under the pro-
visions of Section 9 of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
WOLVERINE SHOE AND TANNING CORPORATION and UNITED SHOE WORK-
ERS OF AMERICA, LOCAL 75, CIO, PETITIONER . Case No. 7 RC-1501.
December 18, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Emil C. Farkas, hearing
officer.' The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed?
Pursuant to the provisions of Section 3 (b) of the Act, the Board'
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Reynolds and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a single unit of production and maintenance
employees at the Employer's Rockford, Michigan, plants, including
employees at its shoe factory, tannery, warehouse, and powerhouse, or,
in the alternative, a separate unit of employees at each of these plants.
The Employer contends that only separate units are appropriate for
I The Employer's name appears herein as amended at the hearing.
2 At the hearing , the hearing officer properly granted the Petitioner's motions to delete
the name of Local 75-A from the petition herein, and to set forth therein the categories
which the Petitioner sought to exclude from its proposed unit. The Board has upheld
the right of a petitioner to amend its petition at the hearing where, as here , no prejudice
resulted to a party from the amendment. Cf. Smith Rice Mill, Inc and DeWitt Bonded
Warehouse Company, 83 NLRB 380, and cases cited therein.
97 NLRB No. 83.