Grunau Sprinkler Corp.

National Labor Relations Board - Board Decisions

Dec 6, 1973

207 N.L.R.B. 732 (N.L.R.B. 1973)

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grunau Company, Inc. a/k/a Grunau Sprinkler
Corporation and Sprinkler Fitters Local Union
669, affiliated with the United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada. Case 30-CA-2299
December 6, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On August 2, 1973, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, the Charging
Party adopted the General Counsel's exceptions, and
the Respondent filed cross-exceptions and a support-
ing brief.
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 Respondent, Grunau Company,
Inc. a/k/a Grunau Sprinkler Corporation, Milwau-
kee, Wisconsin, its officers, agents, successors, and
assigns, take the action set forth in said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: Upon
a charge filed by the above-named Union on April 9, 1973,
a complaint, dated May 25, 1973, was issued alleging that
Grunau Company, Inc. a/k/a Grunau Sprinkler Corpora-
tion, herein called the Company, has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended. In substance, the complaint alleges that
on March 30, 1973, the Company discriminatorily trans-
ferred five employees, which caused them loss of employ-
ment during the week of April 1 through 8, 1973, because
of their membership in, sympathies for, and activities on
behalf of, the Charging Party; and by reason thereof and
by reason of a threat made by the Company that if the
Charging Party engaged in a strike certain members would
be deprived of employment and attempts by the Company
to transfer employees who are members of the Charging
Party because the Charging Party had engaged in a strike,
the Company also has interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed
in Section 7 of the Act. Respondent's answer to the
complaint denies that it has engaged in the alleged unfair
labor practices. A hearing in this proceeding was held in
Milwaukee, Wisconsin, on June I1 and 12, 1973. General
Counsel and Respondent have filed briefs with the
Administrative Law Judge.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Company, a Wisconsin corporation, which main-
tains its principal office in Milwaukee, Wisconsin, is
engaged in, among other activities, the business of
installing fire protection and fire control equipment.
During the most recent calendar year, which period is
representative of Respondent's operations, the Company
purchased and received through channels of interstate
commerce directly from points located outside the State of
Wisconsin goods valued in excess of $50,000. Respondent
admits, and I find, that the Company is an employer, as
defined in Section 2(2) of the Act, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Sprinkler Fitters Local Union 669, affiliated with the
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, herein called Local 669, and Sprinkler Fitters and
Apprentices Local Union No. 183, affiliated with the same
International organization, herein called Local 183, are
labor organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The Company is a plumbing contractor which does
business principally in the midwest. Its fire protection
division sells, designs, installs, and services sprinkler and
other fire protection systems. This proceeding is concerned
with the transfers and attempted transfers of journeymen
and apprentices who had been employed by the Compa-
ny's fire protection division to install sprinkling systems at
various projects in the Milwaukee, Wisconsin, area.
All journeymen and apprentice sprinkler fitters em-
ployed by Respondent are members of either Local 183 or
Local 669, with whom the Company has had continuous
contractual relations for many years. The contract with
Local 183 covers the Company's sprinkler fitters who work
within the Union's territorial jurisdiction which encompas-
ses the counties of Washington, Milwaukee, Waukesha,
and Ozaukee in Wisconsin. For the purposes of this case
the jurisdiction of Local 183 may be referred to as being
limited to the Milwaukee area. The installation work which
207 NLRB No. 107
GRUNAU SPRINKLER CORPORATION
the Company performs outside the Milwaukee area is
subject to the jurisdiction of Local 669 and the collective-
bargaining agreement with that union.
The most recent contract between the Company and
Local 183 is for the period from July 1, 1972, to June 30,
1974. The contract with Local 669, which extended from
April 1, 1970, to March 31, 1973, expired at midnight of
that day, as of which time the parties had not reached
agreement on a new contract.' Agreement was finally
reached on April 7, 1973. During the hiatus between the
two contracts, that is from midnight on March 31 until
April 7, Local 669 was on strike against the members of the
Association, including Respondent. However, the strike
notices which were mailed to the members of Local 669 on
Sunday, April 1, 1973, did not reach the members before
Tuesday, April 3, or Wednesday, April 4. Therefore,
despite the official declaration of a strike, some members
of Local 669 worked on Monday and Tuesday, April 2 and
3.
During the times material to this proceeding there was a
shortage of journeymen and apprentice sprinkler fitters in
the Milwaukee area. Therefore, in March 1973, with the
concurrence of Local 183 and Local 669, several members
of Local 669 were employed by the Company to work in
the Milwaukee area. While so employed their terms and
conditions of work were governed by the contract between
the Company and Local 183. Although prior union
approval was required before the Company could hire
Local 669 members to work in the Milwaukee area, which
is within the jurisdiction of Local 183, no clearance from
Local 183 or Local 669 was required before the Company
could transfer any Local 669 member who was working in
the Milwaukee area to a job outside that area and within
the jurisdiction of Local 669.
At any one time the Company may have contracts to
provide as many as 50 sprinkling installations. The time
and the number of employees required to complete the
various installations differ greatly. Also, the number of
employees assigned to a particular job may fluctuate
substantially during the progress of the job. According to
Raymond J. Malek, vice president and manager of the
Company's fire protection division, it is a characteristic of
the business that with respect to almost every job there is
pressure to obtain and to assign the appropriate numbers
of employees to the job at the proper times in order to
complete the work economically and on schedule. There-
fore, there are constant transfers of employees from job to
job. Transfers take place not only when a job has been
completed but frequently when the Company is being
pressed to speed the progress of its work on a particular
job. In such case it will transfer to that job employees who
had been working at projects where there is less urgency.
On the evening of March 29, Oscar Kornblum, who is
the Company's installation manager and who is primarily
concerned with scheduling Respondent's work and insur-
' The Company does not negotiate its agreements directly with Local
183 and Local 669, but as a member of the National Automatic Sprinkler
and Fire Control Association, Inc., herem called the Association , it is bound
by the agreements negotiated by the Association on behalf of its members.
2 I credit Dnebel's version of his conversation with Kornblum.
Komblum did not contradict Driebel. Two other witnesses , Jerome
Czechorski and Florian Peter Garski, also testified as to what was said by
733
ing_that the jobs are properly staffed, had a meeting with
Dennis Driebel, business representative and financial
secretary of Local 183. The meeting was informal and took
place at the bar of the VFW hall following the conclusion
of an executive board meeting of Local 183. Present during
the conversation were five other members of Local 183,
including several employees of the Company. The princi-
pal subject of discussion was a request of the Company to
indenture more apprentices to work for it within the
territorial jurisdiction of Local 183. This was a subject
which the Company had taken up with the Union from
time to time in the past. During their conversation, Driebel
asked Kornblum what he was going to do if Local 669
should go on strike. The Company's contract with Local
669 was due to expire at midnight on March 31, and it was
understood that if the agreement was not renewed before
that time Local 669 would call a strike. Dnebel testified
that Kornblum stated, "[I ]f 669 went on strike, no
members [of Local 669] would be working for the Grunau
Company in the Milwaukee area," and that he would
obtain replacements elsewhere and, if necessary, "get them
off the street." 2 The complaint alleges, and I find, that the
foregoing remark by Kornblum constituted a threat to
engage in reprisals against those members of Local 669
who were working for the Company in the Milwaukee area
should Local 669 engage in a strike against the Company.3
Such a threat to retaliate against members of Local 669
because the Union calls a lawful strike, which is a form of
concerted action protected by the Act, constitutes interfer-
ence with, restraint, and coercion of employees in the
exercise of rights guaranteed by Section 7 of the Act and,
therefore, violates Section 8(a)(1).
The next afternoon, Friday, March 30, 1973, five
sprinkler fitters, all of whom were members of Local 669,
but who were then working for the Company in the
Milwaukee area at a project which is referred to in the
record as the "First Wisconsin" job, were notified that they
were being transferred to other jobs. The five employees
are: Daniel Kranski, Ralph Mlodik, John Rell, Joseph
Rell, and John Schmidt. John Schmidt was transferred to
the Quaker Industries job in Antioch, Illinois, and the
other four were transferred to the K-Mart job in Stevens
Point, Wisconsin. Both jobs are within the territorial
jurisdiction of Local 669. Of the transferees, Joseph Rell is
a journeyman sprinkler fitter and the other four are
apprentices. The five employees reported to their new
assignments and worked at their, new assignments on
Monday and Tuesday, April 2 and 3. None worked on
April 4, 5, and 6. Although the five men did not appear as
witnesses at the hearing a reasonable inference that can be
drawn from the evidence is that they did not work on April
4, 5, and 6 because they joined the Local 669 strike which
officially began on April 1 and ended on April 7.
Driebel further testified without contradiction that in the
evening of April 2 he had another conversation with
Driebel and Kornblum on the night of March 29. While their testimony
differs in minor details from Dnebel's testimony , the general tenor of their
testimony serves to corroborate Driebel.
3 Members of Local 669 who were then working in the Milwaukee area
for the Company were subject to the junsdiction of Local 183. There was no
obligation on their part to join a Local 669 strike against projects situated
outside the Milwaukee area.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kornblum who, among other things, said that he had
transferred the four Local 669 apprentices from the First
Wisconsin project because they had voted for the strike.
Kornblum testified that on March 30, he left instructions
with subordinates that Phillip Janoska, a journeyman
sprinkler fitter and a member of Local 669, who was
working for the Company in the Milwaukee area at the
First Federal Plaza job, and Randell Burkette, also a
journeyman sprinkler fitter and a member of Local 669
who was working in the Milwaukee area at the General
Electric job, were to be transferred to the Quaker
Industries job in Antioch, Illinois, which is within Local
669's jurisdiction. Janoska and Burkette were not informed
of their transfers until April 2. Both protested the transfers
because, among other reasons, they wanted to obtain 12
consecutive months of employment in the Milwaukee area
in order that they might qualify for membership in Local
183. Both were permitted to remain at their respective jobs
in the Milwaukee area and their notices of transfer were
effectively rescinded. The attempts to transfer Janoska and
Burkette are alleged to be violations of Section 8(a)(1).
Respondent's defense with respect to the transfers and
attempted transfers is that there was severe pressure on it
to speed its work on the Quaker Industries and K-Mart
projects and because of these pressures it required
additional personnel on those projects and that is why it
transferred the five men from the First Wisconsin job and
sought to transfer Janoska and Burkette. There is no basis
for doubting Respondent's evidence that as of the first
week in April it required more men on the Quaker
Industries and K-Mart projects. Although Respondent's
witnesses testified in effect that the seven men involved in
this case could be spared from the projects to which they
were assigned in the Milwaukee area, Respondent offered
no evidence whatsoever as to whether there was personnel
working for it outside the Milwaukee area who could as
readily have been transferred. As, on March 29, Kornblum
threatened that he would not permit any Local 669
members to work in the Milwaukee area should Local 669
call a strike and as on the next day, Friday, March 30, the
negotiations with Local 669 still had produced no
agreement so that there existed a strong probability that a
strike would be called at midnight on March 31, a
reasonable inference from the circumstances, and I so find,
is that the transfers and attempted transfers out of the
Milwaukee area of seven members of Local 669 were made
in effectuation of the foregoing threat. In view of the
Company's declared policy to deny employment in the
Milwaukee area to Local 669 members should that union
call a strike, the burden was upon the Respondent to
establish that the transfers were for reasons entirely
unrelated to the anticipated strike by Local 669. This
Respondent has not done. Respondent's evidence merely
shows that there was a need for additional employees at
the Quaker Industries and K-Mart projects. The evidence
does not show why employees could not have been
obtained elsewhere than from projects within the Milwau-
kee area. Accordingly, I find that the transfers of the five
men from the First Wisconsin project on March 30 were
4 A different question would be presented had the Employer discrimina-
torily sought to transfer the five men and then discharged them because
discriminations against these employees because of their
membership in Local 669 and therefore constituted
violations of Section 8(a)(3). I further find that such
transfers, as well as the attempts to transfer Janoska and
Burkette, tended to interfere with, restrain, and coerce
employees in the exercise of the rights guaranteed in
Section 7 and constituted violations of Section 8(a)(1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship 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 Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Although I have found that the transfers of the five men
from the First Wisconsin project were discriminatory, these
men accepted their new assignments and worked at their
new assignments on April 2 and 3. The five men did not
work on April 4, 5, and 6. None of the five appeared as
witnesses at the hearing and, therefore, we do not have any
direct testimony as to why they failed to work. However, in
the circumstances of the case, I find that they joined the
Local 669 strike which was then in progress. As participa-
tion in the strike was a voluntary act on their part they are
not entitled to any backpay for earnings lost while on
strike. General Counsel's position is that when the men
were transferred Respondent anticipated that Local 669
might call a strike, that the men might join such strike and,
therefore, that the transfers might result in loss of earnings
for the, transferees. While this may be true it does not
entitle them to backpay. Employees who voluntarily leave
their employment, whether for economic reasons or in
protest of their employer's unfair labor practices, are not
entitled to backpay during the period of time that they are
on strike.4 Accordingly, I shall direct no payment of
backpay to the five transferees named in the complaint.
General Counsel does not seek an order restoring the
transferees to the First Wisconsin project. Therefore,
although I find that the transfers were discriminatory and
in violation of Section 8(a)(3), I shall not direct that the
five men be reinstated to the positions from which they
were transferred.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. By discriminatorily transferring Daniel Kranski,
they refused to accept the discriminatory transfers.
GRUNAU SPRINKLER CORPORATION
Ralph Mlodik, John Rell, Joseph Rell, and John Schmidt
on March 30, 1973, thereby discouraging membership in
Local 669, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
2. By reason of the foregoing conduct, and by reason of
the Company's attempt on April 2 to transfer Phillip
Janoska and Randell Burkette from jobs in the Milwaukee,
Wisconsin, area to jobs outside said area because of their
membership in Local 669 and by reason of Respondent's
threats on March 29 to transfer out of the Milwaukee area
employees who are members of Local 669 should Local
669 call a strike against Respondent, Respondent has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act,
and thereby has engaged in unfair labor practices within
the meaning of Section 8(a)(1) 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.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDERS
Respondent, Grunau Company, Inc. a/k/a Grunau
Sprinkler Corporation, Milwaukee, Wisconsin, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Transferring or threatening to transfer employees
because of their membership in Local 669, or any other
labor organization, or because the labor organization in
which they are members threatens to call a strike or does
call a strike against the Company.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action which is'
deemed necessary to effectuate the policies of the Act:
(a) Post at its place of business in Milwaukee, Wisconsin,
copies of the attached notice marked "Appendix."6 Copies
of said notice, on forms provided by the Regional Director
for Region 30, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and shall be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent, to
insure that said notices are not altered, defaced, or covered
by any other material.
735
(b) Notify the Regional Director for Region 30 in
writing, within 20 days from the date of this Order what
steps Respondent has taken to comply herewith.
5 In the event 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.
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT transfer or threaten to transfer any
employee because of his membership in Sprinkler
Fitters Local Union 669, affiliated with the United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States
and Canada, or in any other labor organization, or
because any labor organization in which any employee
is a member has called a strike or has threatened to call
a strike against us.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.
GRUNAU COMPANY, INC.
A/K/A GRUNAU SPRINKLER
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Commerce Building, Second Floor, 744 North Fourth
Street, Milwaukee, Wisconsin 53203, Telephone
414-224-3861.