Local Union No. 929

National Labor Relations Board - Board Decisions

Jun 30, 1958

120 N.L.R.B. 1756 (N.L.R.B. 1958)

1756 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
Local Union No. 929, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, and its agent , Roy Fankboner;
Local Union No. 2288, Lumber and Sawmill Workers ' Union,
AFL-CIO, and its agent , C. L. Renfro ; and Carpenters' Dis-
trict Council of Los. Angeles County and The Mengel Com-
pany ; U. S. Plywood Corp.; and Davies , Keusder & Brown.
Case No . 21-CC-.7 0. Jwne 30,1958
DECISION AND ORDER
On October 17, 1957, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that
some of the Respondents had engaged in and were engaging in cer-
tain unfair labor practices and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. He also found
that certain other Respondents had not committed unfair labor prac-
tices alleged in the complaint and recommended that the complaint be
dismissed as to them. Thereafter, the Respondents and the General
Counsel filed exceptions to the Intermediate Report with supporting
briefs.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act; as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman Leedom
and Members Rodgers and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief of the Respondents 2 and the
General Counsel, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner.
1. We concur in the Trial Examiner's finding that the Respondents,
Carpenters' District Council of Los Angeles County, Local Union No.
929, and its agent Fankboner, induced and encouraged the employees of
Davies and other employers concertedly to refuse to handle goods or
materials or to perform services with an object of forcing Davies and
1 The Respondents ' request tor oral argument is hereby denied as, in our opinion, the
record, exceptions, and briefs adequately present the issues and positions of the parties.
2 In their brief to the Board, the Respondents requested that the record be reopened or
that the case be remanded for the purpose of receiving evidence which allegedly would
show that The Mengel Company , a Charging Party herein , engaged the services of a
labor consultant tor the purpose of obtaining evidence that the Respondents violated
Section 8 (b) (4) (A) of the Act. The Respondents' request is denied. As the Trial
Examiner pointed out in his disposition of a related contention made at the hearing,
the issue presented in this case is whether or not the Respondents violated Section 8 (b)
(4) (A) of the Act Evidence that The Mengel Company independently investigated
Respondents ' conduct does not bear upon the legality of such conduct.
120 NLRB No. 223.
LOCAL UNION NO. 929 1757
other employers and persons to cease using or otherwise dealing in the
products of Mengel, and to cease doing business with Mengel and
U. S. Plywood Corp. The Respondents contend, however, that, even,
assuming that they induced and encouraged Davies' employees to re-
frain from installing Mengel's doors, such conduct was not violative of
Section 8 (b) (4) (A)-of the Act because a so-called "hot-cargo" clause
in a contract to which Respondents and Davies are parties constituted,
a defense. That clause provides "That the CONTRACTORS (in-
cluding Davies) and their subcontractors shall have freedom. of choice
in the purchase of materials, supplies and equipment, save and except
that every reasonable effort shall be made by CONTRACTORS and
their subcontractors to refrain from the use of materials, supplies or
equipment, which use will tend to cause discord or disturbance on the
project. Workmen shall not be required to handle non-union mate-
rial." [Emphasis supplied.]
The record establishes, and the Trial Examiner found, that the
doors in issue were fabricated by employees of Mengel who were
members of a labor organization not affiliated with Respondents and
that the Respondents induced and encouraged Davies' employees not
to install them for this reason. Like the Trial Examiner, we find that,
as the Mengel doors did not constitute "non-union material," the
clause upon which the Respondents rely is inapplicable to the facts of
this case. In any event, the Supreme Court's recent decision in the
Sand Door case ' makes it clear that such clauses afford no defense to
conduct otherwise unlawful under Section 8 (b) (4) (A). Accord-
ingly, we find that the Respondents' contention based upon its contract
with Davies is without merit.
2. The General Counsel excepted to the Trial Examiner's failure
to find that Local Union No. 2288, Lumber and Sawmill Workers'
Union, AFL-CIO, and its agent, C. L. Renfro, violated Section 8 (b)
(4) (A), and to his recommended dismissal of the complaint as to
them. Like the Trial Examiner, we find that the record lacks com-
petent evidence to establish that Renfro, as agent for Local 2288, was
present when Fankboner instructed the carpenters employed by
Davies to cease hanging Mengel's doors or that Renfro participated in
those instructions. Nor do we find that Fankboner was acting as an
agent for Renfro or Local 2288 when he induced Davies' carpenters
to- cease work. In our opinion, the General Counsel failed to establish
by a preponderance of evidence the responsibility of Local 2288 and
Renfro, and the Trial Examiner properly recommended dismissal of
so much of the complaint as pertained to them. We therefore adopt
his recommendations in this respect.
9Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et al.
( Sand Door d Plywood Co.) v. N L R B., 357 U. S. 93.
1758 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Carpenters' District Council of
Los Angeles County, Local Union No. 929, United Brotherhood of
iCarpenters and Joiners of America, AFL-CIO, and their officers,
-representatives, successors, assigns, and agents, including Roy Fank-
boner, shall :
1. Cease and desist from inducing or encouraging the employees of
Davies, Keusder & Brown, or any other employer, to engage in a
strike or concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities, or to perform any services
for their employer, where an object thereof is to force or require
Davies, Keusder & Brown, or any other employer or person, to cease
using, handling, or otherwise dealing in the products of The Mengel
Company, or of any other producer, processor or manufacturer, or
to force or require U. S. Plywood Corp., or any other employer or
person, to cease doing business with the Mengel Company or any
other person.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their respective business offices copies of the notice at-
tached to the Intermediate Report marked "Appendix A."' Copies
of said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being duly signed by authorized rep-
resentatives of the Carpenters' District Council of Los Angeles County,
Local Union No. 929, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, and by Roy Fankboner, be posted by said
Respondents immediately upon receipt thereof, and maintained by
them for a period of 60 consecutive days thereafter, in conspicuous
places, at their respective business offices, and in all places where
notices to members of said District Council and Local Union No. 929,
are customarily posted. Reasonable steps shall be taken by said
Respondents to insure that the notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for the Twenty-first Region
signed copies of said notice for posting by Davies, Keusder & Brown,
said employer being willing, at the places where it customarily posts
notices affecting its employees.
S This notice, however, shall be and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner " and substituting
in lieu thereof the words "A Decision and Order." In the event that this Order is eD-
forced by a decree of a United States Court of Appeals , there shall be substituted for the
words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United
States Court of Appeals , Enforcing an Order."
I
LOCAL UNION NO. 929 1759
(c) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
Local Union No. 2288, Lumber and Sawmill Workers' Union, AFL-
CIO, and its agent, C. L. Renfro, have violated Section 8 (b) (4) (A)
of the Act, be, and it hereby is, dismissed.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On June 20 , 1957, The Mengel Company, Davies, Keusder & Brown , and U. S.
Plywood Corp . ( three separate business enterprises respectively referred to herein
as Mengel, Davies, and U . S. Plywood ) filed a charge with the National Labor
Relations Board ( also designated below as the Board ) against the labor organ-
izations and individuals named in the caption of this proceeding (who are referred
to collectively herein as the Respondents ).' Based upon the charge , the General
Counsel of the Board issued a complaint on July 26, 1957, alleging that the
Respondents had engaged in and were engaging in unfair labor practices within
the meaning of the National Labor Relations Act, as amended ( 61 Stat. 136-163),
also referred to below as the Act. Copies of the charge and complaint have been
duly served upon each of the Respondents.
With respect to the alleged unfair labor practices , the complaint avers, in sub-
stance, that the Respondents , in violation of Section 8 (b) (4) (A ) of the Act
have, "since on or about June 5, 1957," engaged in, and induced and encouraged
employees of Davies and of other employers "to engage in, strikes or concerted
refusals in the course of their employment to use, manufacture , process, transport,
or otherwise handle or work on goods, articles , materials or commodities or to
perform services with an object thereof to force Davies, and other employers and
persons, to cease using, selling , handling, transporting , or otherwise dealing in
the products of Mengel , and to cease doing business with Mengel and (U. S.)
Plywood." 2
The Respondents have filed a joint answer which , in substance , denies the com-
mission of the unfair labor practices imputed to them in the complaint ; and alleges
that Mengel , Davies , and U . S. Plywood "have at all [material ] times ., for
good and valuable considerations , agreed to, authorized , ratified , approved, and
waived all objections " to the conduct "charged against Respondents."
Pursuant to notice duly served upon all parties , a hearing was held before me,
as duly designated Trial Examiner , on August 13 and 14, 1957, at Los Angeles,
California . The General Counsel , Mengel, U. S. Plywood , and the Respondents,
were represented at the hearing and participated therein through their respective
counsel . Davies did not enter an appearance . All parties were afforded a full
opportunity to be heard , examine and cross-examine witnesses , adduce evidence,
file briefs , and submit oral argument . Subsequent to the close of the hearing, the
General Counsel filed a motion to reopen the record for the purpose of offering
additional evidence , and for other relief . After affording all parties an oppor-
tunity to address themselves to the matter , I denied the motion in an order dated
October 4 , 1957. The Respondents have filed a brief which has been read and
considered . No other party has filed a brief.
Upon the entire record , and from my observation of the witnesses , I make the
following findings of fact:
1 The charge was also filed against a number of other individuals, but these have not
been joined as parties in the complaint.
9 The pertinent provisions of Section 8 (b) (4) (A ) are • "It shall be an unfair labor
practice for a labor organization or its agents- . . . to engage in, or to induce or en-
courage the employees of any employer 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 . . . forcing or requiring . . . any employer or other person to cease
using, selling , handling , transporting , or otherwise dealing in the products of any other
producer , piocessor , or manutacturer , or to cease doing business with any other
person . 11
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION
The Mengel Company maintains an office (apparently the firm's headquarters)
in Louisville, Kentucky; is engaged in the manufacture and sale of a variety of
products ; including doors ; and operates manufacturing plants in Laurel , Mississippi;
Union City, Indiana; and Elizabeth City and Winston-Salem, North Carolina.3
The doors manufactured by Mengel are produced at its plant in Laurel, Mississippi.
The gross receipts derived by Mengel from the sale of doors produced at that
plant exceed the sum of $5,000,000 annually. In 1956, approximately 99 per cent
of the doors produced at the Laurel plant were sold and shipped by Mengel to
customers located at points outside of the State of Mississippi.
U. S. Plywood Corp. is a New York corporation. It is engaged in the business
of manufacturing and selling wood products. In the conduct of its business, it
operates sales and warehouse establishments in 11 western States, including a branch
at Los Angeles, California; has purchased doors manufactured by Mengel outside
of the State of California; and has sold such doors within that State. U. S. Plywood
sells and 'ships products from its Los Angeles branch to customers located at points
outside the State of California. During the year ending July 31, 1957, the volume
of such interstate sales and shipments by U. S. Plywood amounted to $50,938.55.
Mengel and U. S. Plywood are, and have been at all times material to the issues,
engaged in interstate commerce within the meaning of the Act. Accordingly, the
Board has jurisdiction over the subject matter of this proceeding'
II. THE LABOR ORGANIZATIONS INVOLVED
As the complaint alleges, and the answer in effect admits, Local Union No. 929,
United Brotherhood of Carpenters and Joiners of America, AFL-CIO (also referred
to below as Local 929), Local Union No. 2288, Lumber and Sawmill Workers
Union, AFL-CIO (also designated below as Local 2288), and Carpenters' District
Council of Los Angeles County (also described below as the District Council) are
labor organizations within the meeting of the Act.5
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory findings
Davies, Keusder & Brown engages, as a general contractor, in the business of
constructing buildings. (The evidence does not establish whether Davies operates
as a corporate enterprise or in some other form.) In June 1957 Davies was engaged,
as general contractor, in the construction of a hospital in Los Angeles, California,
and had been so engaged for some months prior thereto. The construction of the
S One may gather from the record that Mengel is a corporation, although the evidence
does not clearly establish that to be the fact. In any event, the form in which Mengel
conducts its business affairs, whether as a corporation or otherwise, does not materially
affect the issues
' In their brief, the Respondents state that the "trial examiner . . . permitted proof
on commerce neither competent nor subject to proper cross-examination , denying Re-
spondents due process ." There is no merit in the claim . The jurisdictional and commerce
findings are based on the undisputed testimony of witnesses King and Hungerford, who
were called by the General Counsel . (The Respondents called no witnesses .) The evi-
dentiary standards applied to the testimony of King and Hungerford conform to those
approved by the Court of Appeals for the Ninth Circuit in N. L. R. B. v. TV. B. Jones
Lumber Company, Inc, et at ., 245 F. 2d 388.
6Judging by the District Council's bylaws (General Counsel's Exhibit No. 2), it may
be that its name has been stated inaccurately in the complaint. The name set forth in
the bylaws is "Los Angeles County District Council of Carpenters " No motion has been
made to amend the complaint with respect to the name, and the answer appears` to pro-
ceed on the premise that the name has been stated accurately in the complaint. In the
light of the answer, I have some uncertainty that the name has been stated inaccurately
in the pleadings, and hence refrain from directing their amendment to effect a substitu-
tion of "Los Angeles County District Council of Carpenters" for "Carpenters' District
Council of Los Angeles County" wherever the latter name appears in the pleadings.
That does not preclude any party from addressing a motion to the Board for such an
amendment , if appropriate, after the issuance of this Intermediate Report and the transfer
of the case to the Board.
LOCAL UNION NO. 929 1761
building ( which , for convenience of description will be referred to as the Broadway
Hospital ) was still in progress at the time of the hearing in this proceeding.
Locals 929 and 2288 are, and have been at all material times, as the- complaint puts
it (and as the answer - in effect admits ), "constituent members of and affiliated with
Respondent District Council ." All three labor organizations are affiliated with
United Brotherhood of Carpenters and Joiners of America , AFL-CIO (also referred
to below as the United Brotherhood ). The District Council has adopted bylaws.
which were in effect at all times material to the issues ins this proceeding . Under the
bylaws, the local labor organizations , which hold membership in the District Coun-
cil, designate delegates to the District Council , and these delegates , as section 3 of'
the bylaws provides, "have full voice and vote in all matters coming up in the District
Council ." Section 5 of the bylaws requires each delegate to take an "obligation"
pledging "allegiance" to the United Brotherhood, and to abide by the constitution and
bylaws of the District Council. Section 16 ( d) of the bylaws provides: "Only
members of the United Brotherhood of Carpenters and Joiners of America shall be.
permitted to do carpenter work on any job . No member shall use, handle , install or
erect any material produced or manufactured from wood that is not produced and
manufactured by members of the United Brotherhood of Carpenters and Joiners
of America."
Davies is a member of an organization of contractors known as the Associated
General Contractors of America , Southern California Chapter ( also referred to below-
as the A. G. C.). On May 1, 1954 , the A . G. C. and the United Brotherhood entered
into an agreement applicable to a prescribed territory , including Los Angeles County,
California , and prescribing wages, hours, and other terms and conditions of employ--
ment for employees of the members of the A. G. C. "employed to perform or per-
forming construction work within the jurisdiction of the Unions signatory" to the
contract . The contract (with amendments not relevant here ), as stipulated by the
parties, was still in effect at the time of the hearing in this proceeding.
The only provisions of the agreement to which special reference need be made are
those contained in subdivision F of section I, which provides : "That the CON-
TRACTORS ( meaning members of the A. G. C., among others ) and their subcon-
tractors shall have freedom of choice in the purchase of materials , supplies and
equipment, save and except that every reasonable effort shall be made by CON-
TRACTORS and their subcontractors to refrain from the use of materials , supplies
or equipment , which use will tend to cause discord or disturbance on the project.
Workmen shall not be required to handle non-union material."
In the course of the construction of the Broadway Hospital, Davies required about
125 doors for installation in the building . A dealer identified in the record as West,
Coast Door and Plywood Service placed an order for "doors on the Broadway Hos-
pital" project with the Los Angeles branch of U. S. Plywood . Laurence Gerich, a
salesman in the employ of U. S. Plywood , handled the transaction for that concern,
and to fill the order, on behalf of his company, purchased doors from Mengel, who.
shipped them to Los Angeles.
At or about the beginning of June 1957 , Davies hired two carpenters , one named
St. Amant, and the other Hudspeth , to work on the installation of the doors required
for the hospital project . St. Amant was then , and is now, a member of Local 929.
The evidence does not establish whether Hudspeth had any union affiliation while he
worked at the project . In accordance with the practice of Local 929, and the
provisions of section 17 (a) of the District Council's bylaws, St . Amant was his
union 's steward at the project "as the first man on the job."
The evidence does not concretely establish that the doors at the project were sold
to Davies by West Coast Door and Plywood Service, although it may be reasonably
inferred , I believe, from the context of the evidence as a whole that the doors at the
project were those purchased by U. S. Plywood from Mengel , to fill the order of
West Coast Door and Plywood Service , and that the latter concern supplied such
doors to Davies for installation in the hospital building . In any event , whether such
an inference may be drawn or not , the evidence leaves no room for doubt, as will
appear from the sequence of events , that the doors at the project were manufactured
by Mengel.
The two carpenters began installing the doors about a week prior to June 6, and
had installed a number of the doors (variously estimated in the testimony as "roughly
six or eight" and as approximately "twenty" ) . by that date. On the morning of
June 6, Roy Fankboner, a "business representative " of Local 929, came to the
Broadway Hospital construction project , looked at one of the doors, and in the
presence of the two carpenters and Henry M. Kennear , Davies' construction superin-
tendent at the project, stated that the doors being installed were "Mengel doors"
and that they were "non-union ." Fankboner then proceeded to examine other doors.
'483142-59-vol. 120-112
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the project, noted that they bore the name Mengel , and told Kennear and the
two carpenters that he was "pretty sure that they are CIO non-Union doors"; that
he would "have to contact the Lumber and Millworkers' Union," making a reference
to a "Mr . Renfro" in that connection ; and that he (Fankboner ) could not "stop" the
"hanging" of the doors at that point, but that he would "notify" Kennear and the
carpenters later.
Fankboner returned in about an hour. Kennear was not at the construction site
on the occasion of Fankboner's second visit. Fankboner spoke to the two carpenters,
and told them that "as far as he knew" the doors "did not have the Union stamp on
them " and that the two employees "were to stop hanging them" until they "got the
O. K." Fankboner gave St. Amant a copy of the District Council's bylaws, placing
a pencilled circle around section 16 ( d.) of the bylaws , and requested St. Amant to
give the copy to Kennear upon the latter's return to the construction project. Upon
receipt of Fankboner 's instructions , the two carpenters left the project and performed
no other work there that day.
Although St . Amant 's account of Fankboner 's instructions (upon which the findings
pertaining thereto are based ) is undisputed , one aspect of St . Amant 's testimony
requires separate mention . The sense of his testimony at one point is that Fankboner
was accompanied on the occasion of his second visit by a man whom he introduced
by the name of "Renfro." At a subsequent point, however, St. Amant testified that
Renfro accompanied Fankboner "the first time ," and that he could not recall
whether Renfro was "with him [Fankboner] the second time." So far as appears
Fankboner was at the construction site on two occasions, both of which have been
described above. From Kennear 's account of the first visit, as well as portions of
St. Amant 's testimony , I am led to conclude that no individual named Renfro
accompanied Fankboner on the occasion of his first visit to the project. On the
other hand, it is not clear from St. Amant's description of Fankboner's second visit
to the project that the individual introduced as Renfro was actually present when
Fankboner instructed the carpenters to discontinue "hanging" the doors . In short,
the evidence does not establish that the Respondent C. L. Renfro, alleged in the
complaint to be an "agent" of Local 2288, was present when these instructions were
given or that he participated in them.
On the morning of the following day, St. Amant informed Kennear of Fankboner's
instructions , and gave the superintendent the copy of the bylaws , directing Kennear's
attention to the encircled provisions . Kennear told the carpenters to "wait around"
until he "found out what was what ," and the two employees did so for about 4
hours until noon when Kennear assigned them to some work "on concrete forms."
Kennear told them to perform that work until they "had a further O. K. from the
office" (apparently meaning approval of resumption of the work of installing the
doors).
That day , also, Bernard O. Harris, sales representative for Mengel 's "Western
Division ," went to the construction site in connection with the cessation of work on
the doors. He was accompanied by Gerich. Upon their arrival, they spoke to
Kennear, asking the latter if they "could talk to the two carpenters [whom] he had
assigned to hang the doors." Kennear then located St. Amant and introduced him
as the "steward on the job." Harris and Gerich told St. Amant that they had
heard that work had been stopped on the doors, and inquired what had happened in
that regard. St. Amant replied that on the previous day Fankboner had told him
to discontinue work on the "Mengel doors, because they did not carry a Union label."
Harris then stated that "the doors were Union made, but were made with CIO
labor," to which St. Amant replied that so far as he was concerned "a union was a
union ," but that he could not continue with the work on the doors until permitted
to do so by Fankboner. Then, at the request of Harris and Gerich, Kennear supplied
them with the address of Fankboner and Local 929. Kennear also suggested that
they "should see Mr. Renfro," and, displaying a "booklet" similar in appearance to
that which contains the District Council's bylaws, told Harris and Gerich: "What is
stated in here is what we have to go by."
Harris and Gerich went directly from the construction site to the office of Local
929 where they saw Fankboner; told him that they were there in connection with
the interruption in the work of installing the doors at the Broadway Hospital
project; and asked for an explanation. Fankboner replied that while at the con-
struction site the previous day he had noted that the name "Mengel" was stamped
on the bottom edge of a door that had been trimmed from the door in the course
of its installation; that he thus knew that the door "was not [United] Brotherhood
made"; that he told the carpenters not to install any more of the doors until he
11 could check further"; that he had taken the trimmed bottom edge "to Mr. Renfro,"
LOCAL UNION NO. 929 1763
-the "business agent" of Local 2288; and that Renfro had told him not to permit the
.carpenters "to hang any more Mengel doors on the job." 6 Harris then told Fank-
boner that the doors "were union made, but with CIO labor," but Fankboner stated
that "they are not union made unless they carry the Brotherhood label." Fankboner
then produced a copy of the District Council's bylaws, read section 16 (l) of the
bylaws to Harris and Gerich, and stated that he had based his action in "pulling the
men off the job" on the section. Fankboner also produced for Harris and Gerich
-what he identified for them, in effect, as a copy of the agreement between the United
Brotherhood and the A. G. C. and read "a few lines" from it. (According to the
way Harris recalled it in his testimony, the "few lines in general stated
that the contractor shall make every reasonable possible effort to see that union
materials are used on the job." One may reasonably infer that what Fankboner
read were the provisions of subdivision F of section I of the agreement which, among
other things, states: "Workmen shall not be required to handle non-union material.")
Harris thereupon, alluding to the provisions read to him, reiterated "that the Mengel
-door was a union-made door," to which Fankboner replied that "unless the door
carried a union label, he did not consider it union-made." Fankboner then said
that if Harris and Gerich secured Renfro's approval, he would permit the work of
installing the doors to proceed. The conversation ended substantially at that point,
and Harris and Gerich departed.
From the office of Local 929, Harris and Gerich went to the headquarters of
Local 2288, and there spoke to the Respondent C. L. Renfro, a representative of
the latter organization. Harris told Renfro that the object of the visit was to discuss
the stoppage in the work of installing the "Mengel doors" at the Broadway Hospital
,project. Renfro asked, "Why come to see me?" and stated that the carpenters at
the construction project were not represented by him, but by Fankboner. Harris
then related the conversation he had had with Fankboner, but Renfro said that Fank-
boner was "the man to see" since "his men were on the job." Renfro also expressed
the opinion that the doors at the project did not meet the architect's specifications
,.as they called for Fidler doors or equal." Gerich inquired whether Renfro did not
"consider the Mengel door equivalent to the Fidler door." Renfro replied that the
two brands of doors were not equivalent because Mengel's product "did not carry
the Union label." Harris then asked Renfro what could be done "to get this matter
straightened out." Renfro replied that the only way to do so was to remove the
Mengel doors from the project and replace them with others that "carried the
Union label and met with Union approval." Renfro stated that a number of brands
of such doors "were made locally," and he took a card from his desk and read off
a list of names of such brands. Renfro also said that the Mengel door was one of
three brands "that did not meet with Union approval." Harris then asked Renfro
if he could furnish any additional advice, and the latter suggested that Harris
"see Mr. Patterson of the Los Angeles Carpenters' Council." 7
St. Amant and the other carpenter worked for a day or two at the hospital project,
following the instructions they received from Fankboner, and were then laid off by
Davies. Between the time they received Fankboner's instructions and the layoff,
the two carpenters were assigned at the project to duties which did not involve the
doors. No work was performed on the doors until June 20, when St. Amant re-
turned to the project, upon instructions he had received from Fankboner on the
preceding day, to resume work on the doors. (The evidence does not establish what
factors prompted Fankboner to permit St. Amant to resume the work.) Hudspeth
joined St. Amant at the project soon after the latter's return, and the two carpenters,
together with others, installed all the remaining doors, completing the task at some
unspecified point after June 20. According to Kennear's undisputed testimony, the
interruption in the work of installing the doors for a period of some 14 days retarded
other work at the hospital project since it "held up" the "painters, floor layers,
tinsmiths ..., electricians and the finishing that comes on after doors are hung."
6 Fankboner did not testify. The account of his activities at the construction site, which
he gave Harris and Gerich, conveys the implication that he directed that work be stopped
on the doors on the occasion of his first visit there. This does not accord with the testi-
mony of Kennear and St. Amant. The disparity does not materially affect the issues.
St. Amant's account of Fankboner's instructions to him and the other carpenter on the
occasion of Fankboner 's second visit to the job site is undisputed . Similarly , the respec-
tive accounts of Harils and Gerich concerning what Fankboner told them are nncontro-
verted. These versions are in substantial accord.
4 Renfro did not testify. Harris and Gerich both testified concerning the conversation
with Renfro, and their accounts are in substantial agreement.
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Concluding findings
In their brief, the Respondents take the position that the evidence does not establish
that the doors at the hospital project had been made,-by Mengel, asserting in that
regard: `:Whether doors made by the charging manufacturer [Mengel] were actually
involved in the case, is a matter of guesswork. On the doors actually made by him
[Mengel], there were three owners, and presumably three profits, before the general
contractor ever saw them. The Mengel doors passed to U. S. Plywood and thence to
West Coast Millwork Co. [another name used in the record for the dealer identified
previously as West Coast Door and Plywood Service]. . . . What kind of doors
the latter may have sold to Davies does not appear in the record.. .
The allusion to "three profits is plainly irrelevant to any issue, and requires no
other comment here. That the doors at the project had been manufactured by
Mengel is far from "a matter of guesswork." Even if one puts aside the inference
that may be drawn, particularly against the background of the whole record, from
Gerich's description of his transactions relating to West Coast Door and Plywood
Service's order, and the purchase of 124 doors from Mengel (only 1 less than the
125 doors Kennear testified were at the hospital project) to fill the order of West
Coast Door and Plywood Service, the evidence amply warrants a conclusion that the
doors at the project had been manufactured by Mengel. For one thing, Harris
testified credibly, and without dispute, that he saw a number of the doors at the
project; that he examined two of them; and that he identified the doors as Mengel
products "from the interior construction." Harris has been selling Mengel products
for 10 years, and his company's doors for 3, and I have no doubt, as he testified,
that he is familiar with the products he is employed to sell, particularly as he is
Mengel's "sales representative" for an area consisting of much of the western part
of the United States. For another matter, the undisputed evidence establishes that
in directing the carpenters to discontinue the installation of the doors, Fankboner
proceeded on the premise that the doors had been made by Mengel, basing his con-
clusion on his examination of some doors and the name Mengel stamped thereon,
and that he adhered to that conclusion in his conversation with Harris and Gericb.
Indeed, Fankboner's remarks on the occasion of his second visit to the hospital
project, and his subsequent statements to 'Harris and Gerich, may be treated as
admissions by Fankboner, and his principal, Local 929, that the doors in question
had been produced by Mengel. Certainly, in the absence of any evidence by the
Respondents that the doors were produced by some other manufacturer, Harris'
identification of a number of the doors at the project as products of Mengel,
Gerich's testimony relating to his transactions with West Coast Door and Plywood
Service and Mengel, and the undisputed evidence of Fankboner's statements to
Harris and Gerich on one occasion, and to St. Amant on another, require the con-
clusion that the doors installed at the Broadway Hospital, and the subject of the
work stoppage there, were manufactured by Mengel.
In their brief, the Respondents assert that it "appears" that Harris and Gerich,
"under directions of attorneys for the manufacturers, who evidently hatched the
plan . . visited the jobsite . . . and the office of Respondent Local 929 .
for the purpose of obtaining evidence and admissions that Mr. Fankboner had
advised members of the union . not to hang the doors . . . because they were
not union made." The brief also states that in calling upon Renfro, Harris and
Gerich "played" . roles as agents provocateurs." The burden of these state-
ments appears to be that the charge was not filed in good faith. The short answer
to the claims quoted above is that there is not a scintilla of evidence to support
them, but, as an aid to focussing on the proper issues in this proceeding, some added
comment on the matter is appropriate. In addition to the claims described above,
the Respondents assert in their brief that the "Trial Examiner . . . refused to
permit cross-examination of . . . Harris . to show that he conspired with
Ward, salesman for U. S. Plywood who sold the doors to West Coast Millwork,8
to frame a case under [Section] 8 (b) (4) (A) against Respondents, or cross-
examination to impeach the witness by a showing of interest, and that his activities
were not in good faith but merely to produce a charge"; that the "Trial Examiner,
by rulings and admonitions, actively attempted to keep out of the record, and did
keep out of the record, instructions received by the witness [Harris] from his
company's attorney just prior to the time he went out and got the purported admis-
sions" (meaning, presumably, Frankboner's statements to Harris and Gerich); and
that by such rulings, "Respondents were prevented from showing that there was a
conspiracy to produce these doors non-union in Mississippi, and to force their
installation, with the Mengel name removed, in California."
g The evidence establishes that Gerich handled the sales transaction for U. S. Plywood.
LOCAL UNION NO. 929 1765
The rulings that are the subject of complaint in the brief were made upon objec-
tions to questions put to Harris. The record adequately reflects the reasons for
the rulings to which the Respondents advert, and no explanatory comment on them
is required here, but it may be noted that the allusions to "agents provocateurs,"
the alleged motives of Harris and Gerich in calling upon Fankboner and Renfro,
and to "conspiracy," are not only without any support in the evidence, but a
digression from the issues. A restatement of what is basically involved in this
proceeding may serve to liberate it from excursions along tangent roads. Mengel
and U. S. Plywood are not charged with any violation of the Act, and the motives
of Harris and Gerich in calling on Fankboner and Renfro have no bearing on the
question of the legality of the application of paragraph 16 (d) of the District
Council's bylaws to the carpenters' work at the hospital project, and in no way
-alter the critical fact that Fankboner, as a representative of Local 929, instructed
the carpenters at the construction site to discontinue the installation of doors pro-
duced by Mengel. Although the undisputed content of the conversations of Harris
and Gerich amply warrants the conclusion that their purpose in calling upon
Fankboner and Renfro was to secure a resumption of the installation of the doors,
one may ignore the evidence of the conversations, and there would still remain
the question of the legality of the application of section 16 (d) of the bylaws, and
of Fankboner's conduct at the hospital project. The nub of the matter is that the
complaint was issued by a governmental agency in the public interest; that the
issues posed by the complaint and answer are whether the Respondents violated
the Act; that the public interest requires a resolution of the legality of the conduct
imputed to the Respondents in the complaint; and that the allusions to "agents
provocateurs," the alleged motives of Harris and Gerich in calling upon Fankboner
and Renfro, and to "conspiracy," contribute nothing to a resolution of the issues.
Turning to those issues, the Respondents maintain, in effect, that the work
stoppage is beyond the reach of Section 8 (b) (4) (A) of the Act because of the
provisions of subdivision F of section I of the agreement between the A. G. C.
and the United Brotherhood, to which previous reference has been made. For
the purpose of passing on the question presented, it will be assumed here that the
contract was applicable to Davies, the District Council, Locals 2288 and 929, and
the carpenters employed at the hospital project, although the Respondents presented
no evidence to establish the agency of the United Brotherhood to enter into the
contract for the District Council and Locals 929 and 2288 . 9
With respect to the contractual terms invoked by the Respondents, it is not
wholly clear from their brief whether they seek to justify the work stoppage with
a claim that the use of the Mengel doors "tend[ed] to cause any discord or disturbance
on the project," or whether they rest their position on the provision that "[W]ork-
men shall not be required to handle non-union material." Whichever is the case,
neither position has any validity, for reasons to be noted below.
If it be asserted that the work stoppage was ordered by Fankboner because the
doors "tend[ed] to cause discord or disturbance on the project," such a contention
is not supported by the evidence. Certainly, the doors were not the cause of any
"discord or disturbance" among the employees, or between them and their employer,
and it is clear that the carpenters would have continued with their work but for
Fankboner's instructions. The fact is that if there was any "discord" at all, it was
of Fankboner's making; but apart from that, it is abundantly clear that he caused
the work stoppage because of his conclusion that the doors, to quote section 16
{d) of the District Council's bylaws, were "not produced and manufactured- by
members of the United Brotherhood of Carpenters and Joiners of America."
That brings one to the question whether the provision of subdivision F of section I
of the contract, that "[W]orkmen shall not be required to handle non-union mate-
rial," affords the Respondents any immunity from the terms of Section 8 (b) (4) (A)
of the Act. Passing on the identical contractual language in Sand Door and Ply-
wood Co., 113 NLRB 1210, the Board rejected a claim that the provisions im-
munized the conduct of the labor organization involved in that case. The Board's
G The fact that the contract states that the United Brotherhood "entered" into the
agreement "for its affiliated District Councils and Local Unions in Southern California"
does not of itself establish'the agency of the United Brotherhood to enter into the contract
on behalf of such "District Councils and Local Unions " Similarly, such agency Is not
established by Kennear's testimony to the effect that he "knew" that "terms and con-
ditions" of employment for Davies' carpenters were governed by the agreement. It may
be noted in that regard that although Kennear agreed in his testimony that he "had to
be generally familiar with the terms of the contract," he also testified, "I have never
lead the .igieeinent between the Contractors and the Union, or I have no idea what is
in it."
1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order was enforced by the Court of Appeals for the Ninth Circuit in N. L. R. B. v.
Local 1976, etc., 241 F. 2d 147 (now pending in the Supreme Court on petition for
certiorari). But it is unnecessary to rest a conclusion here on the Sand Door case,
or to explore other decisions which have reached different results in applying com-
parable contractual provisions (often termed "hot-cargo" clauses).1O The basic fact
is that the contract can have no effect upon the results in this proceeding, for there
is no evidence that the Mengel doors were "non-union material." Actually, the evi-
dence establishes that Fankboner caused the work stoppage not because the doors
were "non-union material," but because they were "not produced and manufactured
by members" of the United Brotherhood; and that the underlying basis for his con-
duct was section 16 (d) of the District Council's bylaws. That conclusion is amply
supported by Fankboner's activities at the construction project and his conversation
with Harris and Gerich, in the course of which, it is clear, he brushed aside Harris'
protestations that the doors were "union made"by "CIO labor." Be that as it may,
the contract upon which the Respondents rely is in effect a special defense, and it is
the Respondents' burden to show the contract reaches the conduct in question. That
burden is in no way affected by the fact that the General Counsel has the burden of
establishing the violations of the Act alleged in the complaint. In short, apart from
any other factor, as there is no evidence that the Mengel doors were "non-union
material," the contractual provisions under consideration have no impact on the
issues in this proceeding."
In ordering the work stoppage, Fankboner acted as the agent of Local 929, and his
conduct is imputable to that organization. Moreover, it is clear that in directing
the carpenters to discontinue the installation of the Mengel doors at the hospital
project, Fankboner and Local 929 were carrying out and applying the provisions of
section 16 (d) of the District Council's bylaws. Fankboner's activities at the con-
struction project must also be imputed to the District Council. This becomes evident
upon consideration of his conduct in the light of two sections of the bylaws not previ-
ously mentioned. One of these is section 10 (d) which provides: "All business rep-
resentatives of the District Council and Local Unions shall work under the super-
vision and direction of the Secretary-Treasurer of the District Council." Section
20 (f) states: "All foremen are to be held equally responsible (the same as the
Steward) for the enforcement of all By-Laws and Trade Rules of the District Coun-
cil. Violators of this paragraph shall be subject to a fine of $100.00 and/or ex-
pulsion" (emphasis supplied). Plainly, St. Amant was bound by the provisions of
section 16 (d) of the bylaws, and, on that account alone, the District Council must
share the responsibility for the work stoppage in which St. Amant participated, but,
apart from that, the record as a whole requires the conclusion that in directing the
carpenters to discontinue the installation of the doors, Fankboner acted as the in-
strumentality of the District Council for the application and enforcement of section
16 (d) of the bylaws, and was thus that organization's agent in that regard.
The sum of the matter is that by the instructions to Davies' carpenters to discon-
tinue the installation of the doors at the hospital project, and by carrying out and
applying the provisions of section 16 (d) of the bylaws, the District Council, Local
929, and Fankboner induced and encouraged employees of Davies to engage in a
concerted refusal in the course of their employment to use, process, and otherwise
work on doors produced and manufactured by Mengel, and to perform any services
with respect to such doors, with the object of forcing and requiring Davies to cease
using, handling, or otherwise dealing in products produced and manufactured by
ii See Milk Drivers and Dairy Employees Union, etc. v N L. R B , 245 F 2d 817
(C A 2) ; General Drivers Union v N L R B, 247 F. 2d 71 (C. A, D C.) These
cases are also pending in the Supreme Court on petitions for certiorari
ii The Respondents, in their brief, invoke provisions of the contract variously prohib-
iting strikes and work stoppages, and establishing grievance and arbitration procedures,
and assert, 'in that regard, that "arbitration is the exclusive remedy " Presumably what
is meant is that these provisions are a bar to this proceeding by an agency of the Gov-
ernment. The contention has no merit This is also true of an intimation by the Re-
spondents at the hearing (but not mentioned in their brief) that section 16 (d) of the
bylaws has no efficacy by force of section XIII of the contract between the United
Brotherhood and the A. G. C, which provides, in part, "that any provision in the work-
ing rules of the Unions, with reference to the relations between the CONTRACTORS and
their employees, in conflict with the terms of this Agreement shall be waived, and any
such rules or regulations which may hereafter be adopted by the Unions shall have no
application to the work hereunder " These provisions are immaterial, for they have no
effect upon the relations, established by union rules and regulations, between the Re-
spondent labor organizations and their representatives and members See N. L. R. B V.
Local 1976, etc., supra
LOCAL UNION NO. 929 1767
Mengel, and that by such conduct, the District Council, Local 929, and Fankboner
violated Section 8 (b) (4) (A) of the Act.
There is no competent evidence that either Renfro or Local 2288 played any role
in the instructions given by Fankboner to the carpenters at the hospital project, or
had any responsibility for the work stoppage there. In that regard, it may be pointed
out that Fankboner's statement to Harris and Gerich that Renfro had told him not
to permit the carpenters "to hang any more Mengel doors on the job" is not binding
on Renfro and Local 2288, since there is no competent evidence that Fankboner acted
as an agent either for Renfro or Local 2288. For the reasons stated, I shall recom-
mend the dismissal of so much of the complaint as alleges that Renfro and Local 2288
violated the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the District Council, Local 929, and Roy Fankboner, set forth
in section III, above, occurring in connection with the operations of Mengel and
U. S. Plywood, described in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the District Council, Local 929, and Roy Fankboner have
engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A)
of the Act, I shall recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. , As it has been
found that the evidence does not establish that C. L. Renfro and Local 2288 have
violated Section 8 (b) (4) (A) of the Act, as alleged in the complaint, I shall
recommend the dismissal of so much of the complaint as alleges such violations by
C. L. Renfro and Local 2288. -
Upon the basis of the foregoing findings of fact, and of the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. Davies, Keusder & Brown is, and has been at all times material to this pro-
ceeding, an employer within the meaning of the Act.
2. Carpenters' District Council of Los Angeles County, Local Union No. 929,
United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and Local
Union No. 2288, Lumber and Sawmill Workers' Union, AFL-CIO, are, and have
been at all times material to this proceeding, labor organizations within the meaning
of the Act.
3. Roy Fankboner is, and has been at all times material to this proceeding, an
agent of Local Union No. 929, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and of Carpenters' District Council of Los Angeles County,
within the meaning of the Act.
4. C. L. Renfro is, and has been at all times material to this proceeding, an agent
of Local Union No. 2288, Lumber and Sawmill Workers' Union, AFL-CIO, within
the meaning of the Act.
5. By instructing employees of Davies, Keusder & Brown to discontinue the
installation of the doors of the Broadway Hospital project, and by applying the
provisions of section 16 (b) of the bylaws of Carpenters' District Council of Los
Angeles County, as found above, the said Carpenters' District Council of Los
Angeles County, Local Union No. 929, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, and their agent , Roy Fankboner, have induced and
encouraged employees of Davies, Keusder & Brown to engage in a concerted refusal
in the course -of their employment to use, process, and otherwise work on goods,
articles, and materials produced and manufactured by The Mengel Company, and
to perform any services with respect to such goods, articles and materials for Davies,
Keusder & Brown, with the object of forcing and requiring Davies, Keusder &
Brown to cease using, handling, or otherwise dealing in the products of The Mengel
Company, and have thereby engaged in unfair labor practices within the meaning
of Section 8 (b) (4) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Sections 2 (6) and (7).
7. The evidence does not establish that Local Union No. 2288, Lumber and
Sawmill Workers' Union, AFL-CIO, and its agent , C. L. Renfro, have violated
Section 8 (b) (4) (A) of the Act, as alleged in the complaint.
[Recommendations omitted from publication.]
1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE To ALL MEMBERS OF LOCAL 929 AND OF CARPENTERS ' DISTRICT COUNCIL
OF Los ANGELES COUNTY AND EMPLOYEES OF DAVIES , KEUSDER & BROWN
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our members and employees of Davies , Keusder &
Brown that:
WE WILL NOT induce or encourage the employees of Davies , Keusder &
Brown , or any other employer, to engage in a strike or concerted refusal in the
course of their employment to use , manufacture , process, transport , or other-'
wise handle or work on any goods , articles, materials , or commodities, or to
perform any services for their employer , where an object thereof is to force
or require Davies, Keusder & Brown , or any other employer or person to cease
using, handling, or otherwise dealing in the products of The Mengel Company,
or of any other producer , processor , or manufacturer , or to force or require
U. S. Plywood Corp ., or any other employer or person , to cease doing business
with The Mengel Company or any other person.
LOCAL UNION No. 929 , UNITED BROTHERHOOD
OF CARPENTERS AND JOINERS OF AMERICA,
AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
CARPENTERS ' DISTRICT COUNCIL OF Los
ANGELES COUNTY,
Labor Organization.
Dated------------------- By--------------------------------------
(Representative ) ( Title)
Dated- ------------------ - Roy FANKBONER , Business Representative.
This notice must remain posted for 60 days from the date hereof, and must not be
.altered, defaced, or covered by any other material.
_Hot Point Co., a Division of the General Electric Company and
Sheet Metal Workers International Association . Case No.
13-CA-2390. June 30,1958
DECISION AND ORDER
On November 15, 1957, Trial Examiner Sydney S. Asher issued his
Intermediate Report in the above-entitled proceedings, finding that
Hot Point Co., a Division 'of the General Electric Company, herein-
after called 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. The Trial
Examiner also found that the Respondent had not engaged in certain
other unfair labor practices as alleged in the complaint, and recom-
mended that these particular allegations be dismissed. Thereafter,
the Respondent, the General Counsel, and the Charging Union filed
exceptions to the Intermediate Report, together with supporting
briefs.
120 NLRB No. 221.