Carpenters District Council of Houston

National Labor Relations Board - Board Decisions

Mar 26, 1973

202 N.L.R.B. 744 (N.L.R.B. 1973)

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters District Council of Houston and Vicinity
and Astrodomain Corporation . Case 23-CC-464
March 26, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On December 11, 1972, Administrative Law Judge
Samuel M. Singer issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and hereby is,
dismissed in its entirety.
The General Counsel excepted to the Administrative Law Judge's
omission of two statements made by the Respondent's executive secretary
We have considered these statements in reaching our decision and they do
not alter our decision
In view of our conclusion herein that the complaint should be dismissed,
we find it unnecessary to consider or pass upon the Administrative Law
Judge's discussion concerning the propriety of the Board's deferring to
arbitration under Collyer Insulated Wire, 192 NLRB No 150, in this case
Member Fanning would not, in any event, defer to arbitration in this case
for reasons expressed in his dissenting opinion in Collyer and subsequent
cases
DECISION
SAMUEL M. SINGER, Administrative Law Judge: This
proceeding, tried before me in Houston, Texas, on October
26, pursuant to charges filed on September 25 and 27 and
complaint issued on October 3, 1972,1 concerns allegations
that Respondent violated Section 8(b)(4)(i) and (ii)(B) of
the National Labor Relations Act by engaging in certain
secondary boycott activities. In essence, the complaint
alleges that Respondent threatened, coerced, and re-
strained the Charging Party (Astrodomain) and other
' Hereafter, all dates are 1972 unless otherwise indicated
2 Transcript corrected by my order on notice dated November 28, 1972
persons engaged in commerce, including General Exhibits
and Displays, Inc. (General), with objects of (a) forcing or
requiring Astrodomain and General and other secondary
or neutral employers to cease doing business with Concept
Planners and Designers, Inc. (Concept); (b) forcing or
requiring Astrodomain and other persons to induce
General to cease doing business with Concept; and (c)
forcing or requiring Concept to recognize and bargain with
Respondent as representative of Concept's employees
although Respondent has not been certified as representa-
tive of such employees under Section 9 of the Act.
All parties were represented by counsel and were
afforded full opportunity to present such proof and
arguments as they desired. Briefs were received from
General Counsel and Respondent on October 27. Upon
the entire record,2 and the briefs, I make the following-
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
Astrodomain, with its principal office and place of
business in Houston, Texas, operates a convention and
exhibit hall known as Astrohall. It annually purchases
goods and materials originating in other States valued in
excess of $50,000 and receives revenues from space rental
and services in excess of $500,000.
General, an Illinois corporation with its principal office
and place of business in Chicago, Illinois, is engaged in the
business of providing exhibits and displays, including
fabrication, erection and dismantling thereof to exhibitors
at conventions, shows, and fairs. During the year preceding
issuance of the complaint, it provided customers at
Houston goods and services valued in excess of $50,000.
Concept, a Texas corporation with its principal office
and place of business in Houston, Texas, is similarly
engaged in the business of fabricating, refurbishing,
erecting, or installing and dismantling exhibits and displays
at conventions, shows and fairs. It annually provides
services valued in excess of $50,000 for employers within
the State of Texas, each of which annually has a direct
outflow into interstate commerce of goods and services
valued in excess of $50,000.
I find that Astrodomain, General, and Concept at all
material times have been persons engaged in commerce or
industries affecting commerce within the meaning of the
Act, and that assertion of jurisdiction here is proper.
II. THE LABOR ORGANIZATION INVOLVED
Respondent (District Council) is a labor organization
within the meaning of Section 2(5) of the Act.
202 NLRB No. 109
CARPENTERS DISTRICT COUNCIL OF HOUSTON 745
III THE UNFAIR LABOR PRACTICES
A. The Facts
The findings herein are based on stipulations entered
into and documentary evidence produced at the hearing.
There was no testimony.
During the period September 19-27, shoe companies
held their National Shoe Fair in Houston ' s Astrohall,
operated by Astrodomain. Two companies (Brown Shoe
and Wohl Shoe) had contracted with General to install
their exhibits and displays . General, based in Chicago and
with no facilities and employees in Houston , in turn
subcontracted the installation (and dismantling) to Con-
cept , a Houston firm. Stan Hascher, General 's production
service manager , was dispatched from Chicago "to
oversee" the display operations at Houston.
As a member of the Builders Association of Chicago,
General is bound by a collective agreement between that
Association and Respondent District Council .3 The agree-
ment provides that employers "shall not contract or
subcontract any work coming within the jurisdictional
claims of the Union to any person , firm or corporation not
covered by a collective bargaining agreement with the
Union ...." (Art. III, sec. 3.2.) Concept, on the other
hand, employs members of Sign and Pictorial Painters
Local 550 of the International Brotherhood of Painters and
Allied Trades, AFL-CIO (with whom it has had contractu-
al relations) to do its display work.
On September 18 (the day before the Shoe Fair opened),
Respondent 's executive secretary , Fountain , attempted to
speak to Astrodomam 's Convention Manager Vaugn by
telephone. In Vaugn's absence, Fountain talked to Astro-
domain's office employee, Elizabeth Thwaites. Fountain,
who had not yet identified himself, asked Thwaites "what
[Thwaites] would do if the roof blew off the Astrohall."
Thwaites remarked that "it depended on why [Fountain]
wanted to blow the roof off." Fountain ultimately
disclosed the nature of his "problem ," stating it "con-
cerned Concept Displays" and Thwaites said that "per-
haps" Bo Altman (Astrohall's operations manager) or Don
Freeman (the decorator for the Shoe Fair acting as labor
contractor) "would be able to help." Fountain then said' "if
the problem wasn't solved there might be a problem with
Shoe Fair off the ground ." Thwaites "assured" Fountain
that one' of the two men she mentioned could help.
The next morning (September 19), Fountain visited
Astrohall and talked to Altman. In response to Fountain's
inquiry, Altman told Fountain where General 's Operations
Manager Hascher could be located . Fountain then saw
Hascher and said , "You are Stanley L. Hascher, your
social security number is such and such , you are a member
of Local 1784 of the District Council of Chicago." Hascher
denied being a member , asserting he had not been one for
5 years Fountain said that General "was to abide by their
contract with Local 1784 by only doing business with
contractors who were members of appropriate local
unions"; that if Hascher "was determined to use Concept
.. . to install the displays, that he would apply sanctions
against the company and against Hascher personally"; and
that he was "to hire carpenters from Freeman ... and
... could only use Concept men to supervise." Hascher
remonstrated that "this was ridiculous since Concept knew
how their materials were to be assembled and this would
make installation more difficult." He also said he would
have "to discuss the matter" with Concept with whom
General had contracted "for some" of the installation
Fountain later assured Astrohall Operations Manager
Altman that he had settled the situation with Hascher; said
that while Concept could "bring supervisors into the hall
... under no circumstances can Concept employees do
any work on the exhibits"; and mentioned that when
Hascher "gets ready to set his exhibits, he is to get
carpenters . . . from Freeman Decorating Company "
Hascher thereafter "did order" six carpenters from
Freeman to install the Brown Shoe and Wohl Shoe exhibits
on the following morning (September 20) and cancelled
General's contract with Concept.
B Conclusions
1. Section 8(b)(4)(i) and (u)(B), so far as here relevant,
prohibits a union or its agents from inducing or encourag-
ing employees of a secondary or neutral employer "to
engage in a strike" or not "to perform any services," and
from threatening, restraining, or coercing secondary
employers where "an object" of such conduct is to force or
require a secondary employer to cease doing business with
a primary or disputing employer. Under General Counsel's
theory of the case the primary or disputing employer here
was Concept, a nonunion employer, i.e., one who did not
employ carpenters to install and dismantle the two shoe
company displays in the Astrohall; and the secondary or
"neutral" • employers were Astrodomain (Charging Party
which operated Astrohall) and General (the employer with
whom Respondent had a collective agreement and who
had subcontracted the work to Concept). As noted at the
outset of this Decision, the complaint alleges that Respon-
dent had employed unlawful pressures against these two
"secondary" employers in order to bring about a cessation
of business between General and Concept.4 Respondent
denies the unfair labor practices charged and contends that
it was only seeking to implement or enforce the subcon-
tracting clause in its collective agreement with General
Additionally, it urges most vigorously (br. pp. 5-7) that
since the dispute "centered around a particular contract
[i.e., subcontracting] clause" involving "nothing more .. .
than a dispute over the interpretation and meaning of a
contract clause agreed to [by the parties] . . . the dispute
should be deferred by the National Labor Relations Board
to the arbitration process in accordance with the Collyer
doctrine." 5
S The agreement was entered into between the Association "for and on
behalf of" member-employers and by District Council "for and on behalf"
of constituent locals in several Illinois counties
4 Another objective named in the complaint-to force Concept to
recognize and bargain with Respondent (although not certified as
representative of Concept 's employees)-is without support in the record
Apparently this allegation has been abandoned by General Counsel, whose
brief does not address itself to this point
5 Collver Insulated Wire, 192 NLRB No 150 Under Respondent's
collective agreement with General, "Any dispute as to the proper
(Continued)
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. There is no question, and I find, that an object of
Respondent's conduct was to require and force General to
cease doing business with Concept. To this end Respon-
dent Executive Secretary Fountain on September 18
telephoned Astrodomain to secure assistance in resolving
the "problem" of Concept' s installation of the shoe exhibits
at the convention hall. On the next day (September 19),
Fountain demanded that General's Operations Manager
Hascher "abide by their contract ... by only doing
business with contractors" employing carpenters; and that
Concept, which employed members of another union, be
confined to using supervisors. Respondent readily achieved
its objective since General on the next day (September 20)
canceled its subcontract with Concept and arranged to use
carpenters for installing the two shoe company displays.
3. In order to establish a violation of Section 8(b)(4),
however, General Counsel must establish not only a
proscribed objective, but also inducements of secondary
employees to cease work and/or threats or coercion of
secondary employers to achieve the prohibited objective.
While it is permissible for a union by proper means to seek
to persuade a secondary employer to cooperate in
achieving even a proscribed objective, it is unlawful for it
to seek to accomplish this by illegal methods. See N.L.R.B.
v. Servette, Inc, 377 U.S. 46, 53-54. General Drivers,
Chauffeurs, etc., Local Union No. 886 (The Stephens
Company), 133 NLRB 1343. The complaint alleges that
Respondent sought to attain its objective (cessation of
work between General and Concept) by (a) threatening
Astrodomain on September 18 "with physical damage to
the Astrohall" and "with strikes, work stoppages and other
retaliatory measures"; and (b) by threatening General on
September 19 "with strikes, work stoppages and other
retaliatory measures."
As to the September 18 incident involving Astrodomain,
it will be recalled that Respondent's executive secretary,
Fountain, spoke only by telephone with Astrodomain's
office employee, Thwaites. Before identifying himself,
Fountain asked "what [Thwaites] would do if the roof blew
off the Astrohall." Unaware of Fountain's concern,
Thwaites answered "it depended on why [Fountain]
wanted to blow the roof off." When Fountain disclosed
that he had a "problem" involving Concept, Thwaites
referred him to two officials who, she felt, "would be able
to help." When Fountain commented that "if the problem
wasn't solved there might be a problem with Shoe Fair off
the ground," Thwaites "assured" him that either of the two
men to whom she directed Fountain could help him. In my
view, Fountain's remarks constituted neither inducement
of an employee to strike or to withhold her services within
the purview of Section 8(b)(4)(i); nor, if Thwaites can be
construed as a mere conduit for conveying Fountain's
remarks to management,6 a threat of "physical damage to
the Astrohall" and of a work stoppage violative of Section
8(b)(4)(ii), as alleged in the complaint. Fountain' s remarks,
evidently uttered in exasperation, were too vague and
ambiguous to justify a finding that they were threatening
interpretation of this Agreement" must be processed under the grievance-
arbitration clause, and "the decision of the Board of Arbitrators shall be
final and binding upon both parties "
6 Whether Thwaites was an employee or managerial official is not
and coercive. Nor does it appear that Thwaites took them
as threats of physical damage or work stoppage. I find and
conclude that General Counsel failed to meet the burden
of showing , which is his, that Fountain 's remarks fall
within the proscription of Section 8(b)(4)(i) and (ii) of the
Act. Cf. Mill and Smeltermen Union, Local 16A, etc.
(Charles J. Naeseth), 170 NLRB 578; International Union of
Operating Engineers, Local 150 (Builders Association of
Chicago), 165 NLRB 159, 160-161. See also Electrical
Workers Union Local 28, L B. E. W. (Hoertz Electric Mainte-
nance Co.), 138 NLRB 160, 161-162.
4. As to the September 19 incidents involving General,
the record shows that Respondent Executive Secretary
Fountain demanded that General's Operations Manager
Hascher "abide by" the collective agreement between
Respondent and General providing that employers "shall
not contract or subcontract any work coming within the
jurisdictional claims of the Union to any person, firm or
corporation not covered by a collective-bargaining agree-
ment with the Union." Fountain also demanded that
General cease using employees of Concept, a nonsignatory
who did not employ carpenters to handle the shoe
company displays (although he had no objection to the use
of Concept supervisors); and that General obtain carpen-
ters from another employer in the area. Finally, Fountain
stated that if Hascher "was determined to use Concept .. .
to install the displays, that he would apply sanctions
against [General] and against Hascher personally." Ac-
cording to General Counsel, Respondent's invoking of the
collective agreement to justify its insistence that General
cease dealing with Concept is totally unjustified because:
(a) the agreement was intended to cover only "typical
building and construction industry work" of a permanent
nature and not installation and dismantling of displays of
"temporary" duration (tr. pp. 43-44); and (b) the agree-
ment "does not purport to pertain to any work being
performed outside the [Union's] territonaljunsdiction" in
the Chicago area or Illinois. (G.C. br., p. 5.) Respondent,
on the other hand, construes the collective agreement to
comprehend the display work contracted to Concept,
contending "why would [General and Respondent ] have a
contract if they were not in the business contemplated .. .
if it wasn't for the work General did?" (tr. p. 44); and
claims, contrary to General Counsel, that as an employer
with facilities only in Chicago and on whose behalf the
Association had executed the collective agreement, the
contract necessarily covered all work performed by or for
General in any geographical area. In short, while General
Counsel contends that General was a secondary or neutral
employer insofar as the work in Houston was concerned,
Respondent contends that General was a primary and
disputing employer-a question which can and should be
resolved by an "interpretation" of the collective agreement
in a grievance-arbitration proceeding to which the Board
should defer the instant case under the Collyer doctrine.
(See supra, fn. 5.)
In my view, it is unnecessary to resolve the issue whether
disclosed in the stipulated record Although the complaint alleges that the
pressures employed by Respondent came within both subparagraphs (i) and
(n), General Counsel in his brief now only claims that they came within
subparagraph (n)
CARPENTERS DISTRICT COUNCIL OF HOUSTON 747
General was a primary or secondary employer as to the
installation and dismantling of the shoe display exhibits in
Houston Irrespective of whether General came within the
Congressional intent of "shielding unoffendmg employers
and others from pressures in controversies not their own"
(N.L.R.B. v. DenverBuilding & Construction Trades Council,
341 U.S. 675, 692),7 I find that, as in the case of the
September 18 incident involving Astrodomain, Fountain's
September 19 statements to Hascher in order to bring
about a cessation of business between General and
Concept were too vague and ambiguous to warrant a
finding that they were threatening and coercive within the
meaning of Section 8(b)(4)(n). To begin with, Fountain's
demands that Hascher abide by the collective agreement,
that he cease using Concept employees, and that he employ
carpenters constitute noncoercive appeals unless his
further statement that he "would apply sanctions" against
General and Hascher if they persisted in dealing with
Concept can reasonably be constiued as a threatening or
coercive remark. It is clear, however, that the remark
regarding use of "sanctions" could encompass lawful as
well as unlawful pressures. Such lawful pressures could
include a lawsuit for breach of contract, an injunction suit,
or even invoking the contractual grievance-arbitration
procedure. See Orange Belt District Council of Painters, No.
48 v. N.L.R.B, 328 F.2d 534, 537-538 (C.A.D.C.); Local
Union No. 48 of Sheet Metal Workers v. Hardy Corp., 332
F.2d 682, 686-688 (C.A. 5); Mill and Smeltermen Union,
Local 16A, etc. (Charles J. Naeseth), 170 NLRB 578.8 It is
well settled that where a statement is subject to both an
r If it was a primary employer involved in a labor dispute with
Respondent, General was subject to various pressures (including a work
stoppage or threats of such stoppage) to require Respondent to live up to a
proper and lawful collective agreement providing employees with disputed
work, irrespective of the adverse impact of such pressures on neutrals See
National Woodwork Mfg Assn v N L.R B, 386 U S 612, 627, Painters
District Council No 20 (Uni-Coat Spray Painting, Inc), 185 NLRB 930
9 "Of course, it cannot be successfully urged that a court order or decree
is not coercive , or that the mere filing of a suit and its prosecution is not
likewise coercive in nature , but such an expansive interpretation of the term
proves too much " Local Union No 48 of Sheet Metal Workers, supra, 332
F 2d at 686
9 It was stipulated that, if called to testify, Hascher would have testified,
under objection, that he took Fountain's "sanctions" remark to mean that
innocent and noninnocent interpretation or meaning, it is
incumbent upon General Counsel to establish that it is not
innocent . United States Gypsum Co., 93 NLRB 966,
968-969 ; Electrical Workers Union 38, IBEW (Hoerz
Electric Maintenance Co.), 138 NLRB 160, 161-162. This
he has failed to do .9
I find and conclude that Fountain 's September 19
statements to General 's official , Hascher , as well as his
September 18 remarks to Astrodomain 's employee,
Thwaites, did not constitute threats, coercion , or restraint
within the meaning of Section 8 (b)(4)(ii). Although an
object of those statements was to require and force General
to cease doing business with Concept, General Counsel
failed to meet his burden of establishing that Respondent
resorted to unlawful inducements of employees or restraint
and coercion of secondary employers to achieve that
objective. It follows that Respondent did not engage in
unfair labor practices within the meaning of Section
8(b)(4)(i) and (n)(B).
CONCLUSIONS OF LAW
Respondent Union has not violated Section 8(b)(4)(i)
and (ii)(B) of the Act, as alleged in the complaint.
RECOMMENDED ORDERio
Upon the basis of the foregoing findings and conclu-
sions, and upon the entire record in the case, it is ordered
that the complaint be and hereby is dismissed in its
entirety.
Fountain "would have pickets at [General's] Chicago location" and at
Astrohall I agree with Respondent that any such attempted testimony
would be subjective and conclusory supposition by Hascher of what he
allegedly thought Fountain may have had in mind, as distinguished from
what Fountain actually said Accordingly, I give no weight thereto (It is
noteworthy that General Counsel's brief places no reliance on the
stipulation )
10 In the event that no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and Recommended Order herein, shall, as provided in
Sec 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and Order , and all objections thereto shall
be deemed waived for all purposes