Sheet Metal Workers Int'l Assn., Local 299, Etc.

National Labor Relations Board - Board Decisions

Jun 20, 1961

131 N.L.R.B. 1196 (N.L.R.B. 1961)

1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this instrument was not fully litigated and only became a part of this case indirectly.
Neither does the Trial Examiner intend to indicate that Respondent is free from
suspicion . This suspicion does not stem, however , from the evidence presented here-
in, but from general knowledge of the method of doing business in a highly in-
dustrialized area, such as Chicago, when that business is a segment of the building
and construction industry.13
The inadequacy of proof as found above is sufficient to warrant a dismissal of
this proceeding . However, under all the circumstances of this case the Trial Ex-
aminer is constrained to set forth an added reason why in his opinion this case should
be dismissed.
The Charging Party refuses to supply the Respondent with men in spite of Re-
spondent 's willingness to abide by its (Local 9's) custom and practice so far as
wages, hours, and working conditions are concerned . Confronted with the refusal
of the Charging Party to supply manpower, Respondent has continued to do busi-
ness in the only way possible-securing men from other sources.14 Local 9 there-
upon files the charges providing the basis for the complaint herein While it is true,
as the attorney for the Charging Party argues, that what motivates the Charging
Party in filing a charge is immaterial , 15 nevertheless the Board has the authority to
"decline to be imposed upon or to submit its process to abuse." 16 Under all the
circumstances , the instant case appears to be an abuse of the Board's process and
completely contrary to the expressed purposes of the Act
Upon the above findings of fact, and upon the entire record in the case, I make
the following
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has not violated Section 8(a) (3) and ( 1) of the Act as alleged
in the complaint.
[Recommendations omitted from publication.]
13 See the references set forth in footnote 3, supra, for a confirmation of the suspicion
14 See the Board's finding of fact in Local Union No 9, International Brotherhood of
Electrical Workers, et al ( G A Rafel and Co, Inc ), 128 NLRB 899 , involving the
parties herein.
11 See Mooremack Calf Lines , Inc, 28 NLRB 869, 882
16 N.L R B v Indiana d Michigan Electric Company, 318 U S 9 See N.L R B v.
Donnelly Garment Company , 330 U S 219 , for a reiteration of the same principle
Sheet Metal Workers International Association , Local Union
No. 299, AFL-CIO, and Allen Stout , its agent and S. M. Kisner
( deceased ), W. F. Kisner , R. M. Kisner , R. D. Kisner, H. A.
Kisner, O. C. Kisner , M. D. Kisner , and B . E. Kisner, partners,
d/b/a S. M. Kisner and Sons: Case No. 6-CC-222. June 20, 1961
DECISION AND ORDER
On August 31, 1960, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, dismissing the
complaint in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a brief in support thereof.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
131 NLRB No. 147.
SHEET. METAL WORKERS INT'L ASSN., LOCAL 299, ETC. 1197
mediate Report, the exceptions and brief, and the entire record in the
case, and finds merit in the exceptions filed by the General Counsel.
Accordingly, the Board hereby adopts the findings of the Trial Ex-
aminer only to the extent consistent with this Decision.
1. The pertinent facts are set forth in the Intermediate Report.
In brief, for many years S. M. Kisner and Sons, hereinafter referred
to as Kisner, and Local 299 were parties to collective-bargaining
agreements covering Kisner's employees. The last of these contracts
expired in May 1959, and no new contract was executed. The conduct
by Local 299 alleged to be unlawful related to work at a construction
site at Clarksburg, West Virginia. This site was owned by Marion
Realty Investment Company, herein referred to as Marion, which had
awarded contracts for work on the premises to various contractors,
including Clyde Shrum (herein referred to as Shrum), Stuart-
McMunn Company (herein referred to as Stuart-McMunn), and
William Sharpe Jr. Electric Company (herein referred to as Sharpe).
Stuart-McMunn in turn subcontracted part of its sheet meta]. work to
Kisner. Sometime in the winter of 1959-60, prior to picketing of the
of the construction site by Local 299, Stout, Local 299's agent, told
Reiley, a vice president of Stuart-McMunn, that Local 299 had no con-
tract with Kisner and asked whether Kisner would be awarded a sub-
contract. Reiley did not answer. In April 1960, Stout told Rhodes,
the construction superintendent of Marion Realty, that if Kisner came
on the job there would be trouble and in all probability a picket. In
May or June 1960, Stout told an estimator for Stuart-McMunn that he
"wished" that Kisner not be awarded a subcontract since Local 299
had no contract with Kisner. On June 24, 1960, Local 299 commenced
to picket at the Clarksburg construction site. When a picket appeared
with a sign stating "Sheet Metal Work on the job Done by Non-
Members of Local 299," employees of the above-named contractors,
except Kisner, walked off the job. The picketing continued until
June 27, 1960, when it was restrained by a court injunction, at which
time the employees of the secondary employers returned to work.
The complaint alleges that by means of the above-described conduct,
Local 299 induced individuals employed by secondary persons to re-
fuse to perform services for their employers, for proscribed objec-
tives, in violation of 8 (b) (4) (i) (B) and that Local 299 threatened,
coerced, and restrained secondary persons, for proscribed objectives,
in violation of 8(b) (4) (ii) (B).1 The Trial Examiner dismissed the
'Section 8(b) provides:
It shall be an unfair labor practice for a labor organization or its agents--
(4)(i) to engage in, or to induce or encourage any individual employed by any
person engaged in commerce or in an industry affecting commerce to engage in, a
strike or a refusal in the course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, materials, or com-
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint in its entirety. He construed the commerce phraseology
added to Section 8(b) (4) in 1959 2 to require that, even where the
primary employer is engaged in commerce within the meaning of the
Act and, on that basis, the Board would assert jurisdiction in the
proceeding,' it is-necessary, in order to establish a substantive vio-
lation. of Section, 8(b) (4), to allege and prove specific commerce
facts -with respect to the secondary persons. As he found that the
General Counsel had failed to allege ' and prove such facts, the Trial
Examiner recommended that the complaint be dismissed. For the
reasons stated below, we disagree with the Trial Examiner's construc-
tion of the commerce phraseology appearing in Section 8(b) (4).
As noted, in- amending Section 8(b) (4) in 1959, Congress for the
first time required that the secondary persons be "engaged in com-
merce or in an industry affecting commerce." The legislative history
of the 1959 amendments does not indicate the reason why this partic-
ular language was added to Section 8 (b) (4). We must look, there-
fore, to the general intent of Congress in amending the secondary
boycott provisions of the Act and construe the commerce phraseology
in accordance with such intent. The debates make it abundantly
clear that Congress in amending Section 8(b) (4) in 1959 intended to
close the various loopholes in the Taft-Hartley ban against secondary
boycotts.5 We deem it particularly significant that Congress mani-
modities or to perform any services; or (ii) to threaten, coerce, or restrain any
person engaged in commerce o, in an industry affecting commerce, where in either
case an object thereof is
(B) forcing or requiring any person to cease using, selling, handling, transporting,
or otherwise dealing in the products of any other producer, processor, or manu-
facturer, or to cease doing business with any other person, or forcing or requiring
,any other employer to recognize or bargain with a labor organization as the repre-
sentative of his employees unless such labor organization has been certified as the
representative of such employees under the provisions of section 9: Provided, That
nothing contained in this clause (B) shall be construed to make unlawful, where
not otherwise unlawful, any primary strike or primary picketing ; [Emphasis
.supplied ]
2 The pre-1959 language of 8(b) (4) made it unlawful to induce or encourage the "em-
ployees of any employer" to engage in certain conduct (The term "employer" Is not
defined in Section 2(2) in terms of any commerce requirements ) As indicated above,
under the 1959 amendments, it is unlawful to induce or encourage "any individual em-
ployed by any person engaged in commerce or sn any industry affecting commerce," or to
threaten, coerce, or restrain "any person engaged in commerce or in an industry affecting
commerce" [emphasis supplied] for one of the proscribed objectives It should be noted
that the same commerce language appears in both subsections (1) and (ii).
31ra A. Watson .Company,, d/b/a Watson's Specialty Store, 80 NLRB 533, affil 341
U S. 707; McAllister Transfer, Inc, 110 NLRB 1769. Here, as the record shows and the
Trial Examiner found that Kisner, the primary employer, is engaged in commerce, we find
that it will effectuate the purposes of the Act to assert jurisdiction in this case.
4 However, the complaint, paragraph 7, alleged that the secondary persons were engaged
in commerce or in an industry affecting commerce.
5 See the statement of Representative Griffin, cosponsor of the new law, NLRB Legis-
lative History of Labor-Management Reporting and Disclosure Act of 1959, herein referred
to as Legis Hist, p. 1519; see also the "Analysis of the Landrum Griffin Reform Bill,"
submitted 'by Representative Griffin, Legis. Hist, p 1523; the comments of Senator
Goldwater, Legis Hist., p 1079 Specifically, Congress intended to make it unlawful to
induce railway employees, public employees, and others to engage in a strike for proscribed
SHEET METAL WORKERS INT'L ASSN., LOCAL 299, ETC. 1199
fested its understanding that the new secondary boycott provision
would continue to prohibit those secondary boycotts which are "cov-
ered by the present law." 6 The Trial, Examiner's construction of
Section 8(b) (4), it is apparent, would have the effect of narrowing
rather than broadening the coverage of the secondary boycott pro-
vision. Specifically, prior to 1959, the Board could have found a
violation of Section 8 (b) (4) in a factual situation such as this, whether-
or not the secondary employer was engaged in commerce, provided
that the primary employer was engaged in commerce and met the
Board's standards.' Under the view of the Trial Examiner, there
could be no violation of Section 0(b) (4) in the instant situation, as
it has not been proved that the secondary persons were engaged in
commerce or in an industry affecting commerce. We shall not adopt
a construction of Section 8 (b) (4) which so plainly thwarts the con-
gressional intent in amending that section.
In deciding secondary boycott cases, we shall hereafter construe
broadly the language "engaged in commerce or an industry affecting
commerce," which appears in Section 8(b) (4), in order to fulfill the
manifest congressional purpose to give the widest coverage to sec-
ondary boycott provisions. The scope of the term "industry" is far-
reaching. Its dictionary definition is "any department or branch of
... business; esp., one which employs much labor and capital and
is a distinct branch of trade; as, the sugar industry." 8 It is clear,
and we find, that the building and construction industry is an "in-
dustry" within the meaning of Section 8 (b) (4).9 We take administra-
tive notice of the fact that the building and construction industry
causes the flow of large quantities of goods across State lines and that it
therefore affects commerce."' As the secondary persons herein are
engaged in the building and construction industry, we find that they
are engaged in an "industry affecting commerce" within the meaning
of Section 8 (b) (4).
objectives and to make unlawful direct threats against secondary employers for pro-
scribed objectives. Prior to 1959 the Board had held that, under existing law, such con-
duct was lawful . Paper Makers Importing Co., Inc and Hammill & Gillespie, Inc., 116
NLRB 267 ( municipal employees ) ; Del-Mar Cabinet Company, Inc , 126 NLRB 501 ( super-
visors ) ; Driver-Miller Plumbing and Heating Corp., 124 NLRB 888 , 892 (direct threats
against a secondary employer ) ; W. T Smith Lumber Company, 116 NLRB 1756, revd. 246
F. 2d 129 ( CA. 5) (railroad employees)
8 S. Res 181 , Legis . Hist., pp. 1382, 1383.
7 See cases cited, footnote 3, supra.
8 Webster's International Dictionary of English Language , Unabridged, 2d edition (1950)
8 Cf. Section 8(f), added in 1959, which permitted certain practices by "an employer en-
gaged primarily in the building and construction industry " [ Emphasis supplied ]
10 See Shore v. Building & Construction Trades Council of Pittsburgh , Pennsylvania, and
Vicinity , 173 F. 2d 678 ( C.A. 3), where the court found that , for purposes of Section
10(1) of the Act, an employer was engaged in an industry "affecting commerce ," relying,
in part, on the fact that the employer was engaged in the building and construction
industry . The court noted that the value of construction in the United States amounted
to $10 billion, and "what affects the building industry in the given community affects
interstate commerce." Cf Plumbers and Steamfitters Union No. 598 v. Dillion, 255 F. 2d
820 (C A 9 ) During 1959 , the total value of new construction in the United States, was
more than 454 billion ( Economic Report of the President ( January 1961 ), p. 163).
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We note, moreover, that the term "industry affecting commerce" is
defined in Section 501 (1) of the Act as "any industry or activity in
commerce or in which a labor dispute would burden or obstruct com-
merce or tend to burden or obstruct commerce or free flow of com-
merce.ll The secondary persons here are engaged in a construction
job at Clarksburg together with Kisner, the primary employer, and, as
noted above, the Trial Examiner found, and the record supports his
-finding, that.the business of Kisner - affects commerce. It is clear,
therefore, that the secondary persons herein are engaged in an "ac-
tivity," namely, the construction job at Clarksburg, in which a labor
dispute would burden or obstruct or tend to burden commerce within
the meaning of Section 8 (b) (4) as defined by Section 501(1) .la
We accordingly find that Marion, Shrum, Stuart-McMunn, and
Sharpe, the secondary persons herein, were "engaged in commerce or
in an industry affecting commerce" within the meaning of Section
8(b) (4). We shall therefore consider the case on the merits.
2. The picketing: The complaint alleged that the picketing by
Local 299 at the construction site violated Section 8(b) (4) (i) and
(ii) (B). The Trial Examiner found no violation of 8(b) (4) (i) (B),
not only on the commerce ground described above, but on the further
ground that the agents of Local 299 made no effort to persuade sec-
ondary persons to stop work and the picketing by Local 299 took
place only when Kisner's employees were on the job. Although the
record shows that the pickets made no verbal appeals to secondary
employees on the construction job to stop work, and that Kisner's
employees were on the job at all times during the picketing, we do
not agree that the picketing did not violate 8(b) (4) (i) (B). As both
primary and secondary persons were doing business at the construc-
tion site, this is a common situs situation in which the lawfulness of
the picketing is governed by the Board's Moore Dry Dock criteria.13
One of these criteria is that the picketing must identify the primary
employer and indicate clearly that the dispute is with the primary
11 The Labor-Management Reporting and Disclosure Act provides that it shall apply to
labor organizations "engaged in an industry affecting commerce" (Section 3 (1)) and the
Secretary of Labor promulgated a regulation which provides that "In accordance with
the broad language used in these definitions and the manifest congressional intent, the
language will be construed broadly to include all labor organizations of any kind other
than those clearly shown to be outside the scope of the Act" (29 C.F. R., section 451.2)
12 The court reached essentially the same conclusion in McLeod v Hempstead Local
1921, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, 183 F. Supp
494 (D C.N.Y.E•D ), decided under Section 8(b) (4), as amended in 1959. There, it was
stipulated that one of the secondary persons, engaged in business at a construction site,
was not itself engaged in commerce to a sufficient degree to come within the Board's
jurisdictional standards The court found , however, that in its "relation to Spar [the
primary employer ] at this job," the business of the secondary person affected commerce
within the meaning of the Act See, also, Elliot v. IBEW, Local 59 (D C. N Texas),
November 18, 1900
13 92, NLRB 547 Although this decision was handed down prior to the 1959 amend-
ments to 8(b) (4), it is clear that the Moore Dry Dock criteria are still applicable in
determining the lawfulness of picketing in common situs situations Gilmore Constiaction
Company/, 127 NLRB 541, enfd 285 F 2d 397 (CA 8), cert. denied 366 U.S 903.
SHEET METAL WORKERS INT'L ASSN., LOCAL 299, ETC. 1201
employer only. The record here shows that the picket carried a sign
which stated only that "Sheet Metal Work on this job Done by Non-
members of Local 299." In addition to Kisner, another employer,
Union Roofing and Spouting Company, had done sheet metal work
on the construction site. Moreover, the wording of the sign, which
referred to "this job," indicates that the entire job, and therefore all
employees on the job, were being picketed. On this basis, we find that
Local 299 failed to make it clear that its dispute was only with
Kisner, as required by the decision in Moore Dry Dock, and therefore
that the picketing was directed at, and it induced, secondary em-
ployees for a prohibited objective in violation of 8(b) (4) (i) (B).14
In finding that the picketing was directed at and induced secondary
employees to cease work in violation of subsection (i), we rely also
on the fact that on the morning the picketing began, Stout, the agent
of Local 299, told the foreman of Shrum that the picketing had not
yet begun because the picket was late and when Shrum's foreman
asked Stout whether Shrum's employees could "hold off" until the
mortar which had been mixed was used up, Stout agreed. The Board
has held that, under certain circumstances, a union has an affirmative
duty to make it clear that common situs picketing is directed solely
against the primary employer.',' This conversation with Shrum's
foreman made it clear to Stout that it was to be expected that second-
ary employees would stop work if Local 299 began to picket. We
find that, in the circumstances, Local 299 had a duty to make it clear
to Shrum that the picketing was not intended to have that effect, and
that its failure to do so is a further indication that the picketing was
intended by Respondents to induce secondary employees to strike.
We also rely on the three incidents, described immediately here-
after,16 wherein Local 299 solicited secondary employers not to do
business with Kisner, as evidence that one of the purposes of Local
299's picketing was to induce secondary employees to go on strike.17
We further find that the picketing by Local 299, which was directed
at and induced individuals employed by the secondary persons en-
gaged in business at the construction site, restrained and coerced such
secondary persons for unlawful objectives in violation of Section
8(b) (4) (ii) (B).-8
a
14 See Acousti Engineering of Alabama , Inc, 120 NLRB 212. Although it appears that
on the day of the picketing Union Roofing had no employees on the job, we find this fact
to be immaterial under Moore Dry Dock, since Local 299, by placing the ambiguous legend
on its picket sign, failed to indicate that its dispute was only with Kisner, and, as a
result, may have induced secondary employees who were on the job at the time of the
picketing to stop work.
15 Superior Derrick Corp. v. N.L.R.B., 273 F. 2d 1891 (CA. 5), enfg in relevant part
122 NLRB 52 ( Member Fanning dissenting) ; Clark Bros Transfer Company, 116 NLRB
1891, remanded 262 F 2d 456 (C A D C.), amended 123 NLRB 1564.
1e Infra
17 Ready Mixed Concrete Company, 117 NLRB 1266, 1268, footnote 3.
' Gilmore Construction Company , supra, p. 545 , footnote 6 ; Perfection Mattress &
Spring Company, 129 NLRB 1014 ( Member Fanning dissenting in part).
599198-62-vol. 131-77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Verbal appeals : The complaint further alleges that other con-
duct of Local 299, in addition to the picketing, violated Section
8(b) (4) (i) and (ii) (B). We shall consider whether the following
three incidents, in themselves, constituted unlawful inducement of
"individuals" for proscribed objectives under subsection (i) or un-
lawful restraint or coercion of "persons" for proscribed objectives
under subsection (ii). (a) Sometime during the winter of 1959,
Stout, Local 299's agent, spoke to Reiley, vice president of Stuart-
McMunn, one of the secondary persons, and advised him that Local
299 no longer had a contract with Kisner. Stout then asked whether
Stuart-McMunn intended to award a subcontract to Kisner, but
Reiley refused to answer. (b) Sometime in May or June 1960, Stout
told Ashcraft, an "estimator" for Stuart-McMunn, that Local 299
"wished" that Stuart-McMunn would not award the sheetmetal work
on the Clarksburg job to Kisner since Local 299 had no contract with
Kisner. (c) Rhodes, construction superintendent for Marion Realty,
testified, that in April 1960, Stout told him that if Kisner came on
the job, "we would have trouble, and in all probability have a picket
on the job." Rhodes testified further that Stout told him the same
thing on several occasions. Stout did not deny the substance of
Rhodes' testimony.
In Carolina Lumber Company,19 the Board for the first time con-
strued the term "individual" as it appears in Section 8(b) (4) (i) and
the term "person" as it appears in Section 8(b) (4) (ii). The Board
noted that Congress, in amending Section 8(b) (4) in 1959, intended to
prohibit the inducement of a "broader category" of employed "per-
sons" than had been prohibited under the earlier version of Section
8(b) (4). Relying on the legislative history as indicating that cer-
tain types of "supervisors" were to be included in the class of persons
the inducement of whom was prohibited by Section 8(b) (4) (i), the
Board stated that in deciding whether a particular supervisor was an
"individual" within the meaning of subsection (i), it would con-
sider such factors as the organizational setup of the company, the
authority, responsibility, and background of the supervisor, and his
working conditions, duties, and functions on the job involved in the
dispute, his salary, earnings, perquisites, and benefits. The Board
also made it clear that the term "person" as it appears in subsection
(ii) which prohibits threats, restraint, and coercion of "any person"
includes individuals on a managerial level.
Applying these principles to the instant case, we find, for the rea-
sons stated below, that Local 299 induced Ashcraft to refuse to per-
form a service for his employer for proscribed objectives in violation
of Section 8(b) (4) (i) (B) ; that Local 299 threatened, restrained, and
coerced Rhodes for proscribed objectives in violation of Section 8 (b)
' 130 NLRB 1438, Member Rodgers concurring in the result.
SHEET METAL WORKERS INT'L ASSN., LOCAL 299, ETC. 1203
(4) (ii) (B) ; but that Local 299 did not violate the Act with respect-
to Reiley.
The uncontradicted testimony of Ashcraft indicates that, as an
"estimator" for Stuart-McMunn, his duties included "taking jobs off
prints and pricing them up and placing employees on the job." As
the testimony of Ashcraft. indicates that his authority was limited,20
we find that Ashcraft is an "individual" under subsection (i). As
Local 299's representative told Ashcraft that it "wished" that a con-
tract would not be awarded to Kisner, we find that Local 299 induced
Asheraft not to perform for his employer a service in connection with
the awarding of a contract to Kisner, for proscribed objectives in
violation of Section 8(b) (4) (i) (B).21
The uncontradicted testimony of Rhodes indicates that, as con- -
struction superintendent for Marion at the Clarksburg job, his duties,
included taking bids on various parts of the work, sending these bids
to his supervisor in New York who awards the contracts, making
certain that the subcontractors did their work according to plans and,
specifications, and expediting their jobs. As it appears that Rhodes
was the top managerial representative of Marion at the Clarksburg,
construction job, we find that Rhodes was a managerial representative
and therefore not an "individual" under subsection (i).12 Rhodes
was, however, a "person" within the meaning of subsection (ii). It
is clear, and we find, that Local 299's statement to Rhodes that it
would picket the Clarksburg job if a contract were awarded to Kis-
ner constituted a threat within the meaning of subsection (ii), and
Local 299 thereby threatened, restrained, and coerced Rhodes, and
his employer, Marion, for proscribed objectives in violation of 8(b)
(4) (ii) (B).
Reiley, as noted, was vice president of Stuart-McMunn. It is
clear, and we find, that Reiley, as a corporation officer, was a manage-
rial representative and not an "individual" within the meaning of
subsection (i). While Reiley is a "person" within the meaning of
subsection (ii), we find that Stout's statement to Reiley that Local
299 did not have a contract with Kisner and his inquiry as to whether
Stuart-McMunn intended to award a contract to Kisner did not con-
stitute threats, restraint, or coercion under subsection (ii). Accord-
ingly, we find that Local 299's conduct with respect to Reiley was not
in violation of Section 8(b) (4) (i) or (ii).
4. The unlawful objectives: The complaint alleges that the above
described conduct of Local 299 was for an object not only of requir-
ing secondary persons to cease doing business with Kisner, but Was,
20 We regard his status as comparable to that of employee Andy Clay in Carolina
Lumber Company, supra
21 See Swift and Company , 113 NLRB 275 , enfd as modified 237 F. 2d 20 (C A D.C ).
22 His status is, in our opinion , comparable to that of Travis Bufkin in Carolina Lumber
Company, eupra.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in addition, for an object of requiring Kisner to recognize Local 299
as the bargaining agent of Kisner's employees despite the fact that
Local 299 was not certified as such bargaining agent. The Trial
Examiner made no finding with respect to the latter alleged objective.
However, the record makes it clear that Kisner and Local 299 were
parties to a collective-bargaining agreement covering Kisner's sheet
metal employees which expired in May 1959; that after the expira-
tion of this contract, there were several conversations between Kisner
and Local 299 regarding a new contract but that no agreement was
reached; and that in March 1960, Local 299 sent a letter to Kisner
disclaiming any interest in Kisner's employees. In a number of cases,
the Board has recognized the principle that where a union engaged
in conduct inconsistent with its disclaimer of interest in a unit of
employees, the disclaimer will be ineffective to nullify the attempts
by the union to obtain recognition as representative of the employees
involved 23 Here, we have found that Local 299, after its disclaimer
of interest, induced employees of secondary persons to engage in work
stoppages, and threatened, restrained, and coerced secondary persons,
with an object of requiring these secondary persons to cease doing
business with Kisner: Viewed in the context of the prior collective-
bargaining relations between Kisner and Loca1299, we find that these
efforts by Local 299 to disrupt the business relations between sec-
ondary persons and Kisner, particularly, the statements by Local 299
representatives to secondary persons asking them not to award a sub-
contract to Kisner because Local 299 does not have a contract with
Kisner, were inconsistent with Local 299's disclaimer of interest in
Kisner's employees. We accordingly find that the above-described
conduct by Local 299 was also for an object of requiring Kisner to
recognize Local 299 as the representative of its employees despite the
fact that Local 299 was not the certified representative of Kisner's
employees.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in con-
nection with the operations of S. M. Kisner & Sons as set forth in
section I of the Intermediate Report, have a close, intimate, and sub-
stantial 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.
THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices by inducing and encouraging individuals employed
by secondary employers to engage in proscribed conduct and by
23 For example , Nett{ Wholesale Grocery of Watertown, Inc, 121 NLRB 619.
SHEET METAL WORKERS INT'L ASSN., LOCAL 299, ETC. 1205
threatening, coercing, and restraining secondary persons for pro-
scribed objects, we shall order them to cease and desist therefrom and
to take certain affirmative action which the Board finds is necessary
to effectuate policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. S. M. Kisner and Sons is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Marion Realty Investment Company, Clyde Shrum, Stuart-
McMunn Company, and William Sharpe Jr. Electric Company, are
engaged in commerce or in an industry affecting commerce within the
meaning of Section 8(b) (4) of the Act.
3. Sheet Metal Workers International Association, Local Union
No. 299, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act, and at all times material herein Allen Stout
acted as agent for the aforementioned Local No. 299.
4. By inducing and encouraging employees of Stuart-McMunn,
Clyde Shrum, and William Sharpe, to engage in a strike or a refusal
in the course of their employment to perform services, and by threat-
ening, coercing, and restraining Stuart-McMunn, Clyde Shrum,
William Sharpe, and Marion Realty, with the objects of forcing or
requiring Stuart-McMunn, Shrum, William Sharpe, and Marion
Realty to cease doing business with Kisner, and forcing or requiring
Kisner to recognize or bargain with Local No. 299 in the absence of
a certification of Local 299 as the bargaining representative of
Kisner's employees, the Respondents have engaged in unfair labor
practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices
within the meaning of Section 2(6) and (7) of the Act.
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 the Respondent , Sheet Metal
Workers International Association , Local Union No. 299 , AFL-CIO,
its officers , agents, representatives , successors , and assigns, including
specifically Allen Stout , shall:
1. Cease and desist from engaging in or inducing or encouraging
any individual employed by Stuart-McMunn Company , William
Sharpe Jr. Electric Company, and Clyde Shrum, or any other per-
son, to engage in a strike or a refusal in the course of his employment
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to use, manufacture, process, transport, or otherwise handle or work
on any goods, articles, materials, or commodities, or to perform any
service, or to threaten, coerce, or restrain Stuart-McMunn Company,
William Sharpe Jr. Electric Company, Clyde Shrum, and Marion
Realty Investment Company, or any other person, where an object
thereof is to force or require Stuart-McMunn, William Sharpe,
Shrum, and Marion Realty, or any other person, to cease doing busi-
ness with S. M. Kisner and Sons, or to force or require S. M. Kisner
and Sons to recognize or bargain with Local 299 in the absence of a
certification of Local 299 as a bargaining representative of the em-
ployees of S. M. Kisner and Sons.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at the Respondent Union's business offices and meeting
halls, copies of the notice attached hereto marked "Appendix." 24
Copies of said notice, to be furnished by the Regional Director for
the Sixth Region, shall, after being duly signed by the authorized
representative of the Respondent Union and by the Respondent Allen
Stout, be posted by the Respondent Union immediately upon receipt
thereof, and be maintained for a period of 60 consecutive days there-
after , in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken
to insure that the notices are not altered, defaced, or covered by any
other material.
(b) Sign and mail sufficient copies of said notice to the Regional
Director, Sixth Region, for posting, Stuart-McMurm, William
Sharpe, Shuum, Marion Realty, and S. M. Kisner and Sons willing,
at all locations where notices to their respective employees are cus-
tomarily posted.
(c) Notify the Regional Director for the Sixth Region, in writing,
within 10 days from the date of this Decision and Order, what steps
the Respondents have taken to comply herewith.
24 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION, LOCAL UNION No. 299, AFL-CIO , AND TO ALL EM-
PLOYEES OF STUART-MCMUNN COMPANY ; CLYDE SHRUM ; WILLIAM
SHARPE JR. ELECTRIC COMPANY; MARION REALTY INVESTMENT
COMPANY ; AND S. M. KISNER AND SONS
Pursuant to a Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
SHEET METAL WORKERS INT'L ASSN., LOCAL 299, ETC. 1207
WE WILL NOT induce or encourage any individual employed by
Stuart-McMunn Company, herein called Stuart-McMunn; Clyde
Shrum, herein called Shrum; and William Sharpe Jr. Electric
Company, herein called Sharpe, or any other person, to engage
in a strike or a refusal in the course of his employment to use,
manufacture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities, to perform any
services or threaten, coerce, or restrain Stuart-McMunn; Shrum;
Sharpe; and Marion Realty Investment Company, Inc., herein
called Marion, or any other person, where an object thereof is
forcing or requiring Stuart-McMunn; Shrum; Sharpe; and
Marion, or any other person, to cease doing business with S. M.
Kisner and Sons, or forcing or requiring S. M. Kisner and Sons
to recognize or bargain with us in the absence of a certification as
the bargaining representative of employees of S. M. Kisner and
Sons.
SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION, LOCAL
UNION No. 299 , AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
ALLEN STOUT, Its Agent.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed and duly served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board, and an answer having been filed on behalf of the above-
named Respondents, a hearing involving allegations of unfair labor practices in vio-
lation of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as
amended, was held in Fairmont, West Virginia, on August 4, 1960, before the duly
designated Trial Examiner.
At the hearing General Counsel and the Respondents were represented by counsel
and were afforded full opportunity to present evidence pertinent to the issues, to
argue orally, and to file briefs. The filing of briefs was waived. Counsel argued,
their argument appearing in the official transcript of the proceedings.
Disposition of the Respondents' motion to dismiss the complaint, upon which
ruling was reserved at the conclusion of the hearing, is made by the following
findings, conclusions, and recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE PRIMARY EMPLOYER
The above-named partnership, doing business as S. M. Kisner and Sons, maintains
its principal office and place of business in Fairmont, West Virginia, where it is
1208 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged as a roofing and sheet metal contractor. During the 12-month period
preceding the filing of the charge, it performed services in States other than the State
of West Virginia valued at more than $80,000. Facts noted below establish that this
partnership is the primary Employer here involved.
It is engaged in commerce within the meaning of the Act and the Board has
jurisdiction.'
II. THE RESPONDENTS
Sheet Metal Workers International Association , Local Union No. 299, AFL-CIO,
is a labor organization within the meaning of the Act. Allen Stout, business manager
of Local 299, is its agent within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
For a number of years Kisner and Local 299 were parties to collective-bargaining
agreements, the last such contract expiring in May 1959. Sometime in September of
that year, Allen Stout, Local 299's business manager, asked W. Fred Kisner, one of
the partners, to sign a contract similar to one which the local had obtained from some
other employer, but Kisner declined. No subsequent effort was made by the local
to negotiate a contract or renew collective-bargaining relations with Kisner.
While the point was not made entirely clear during the hearing, it appears that
after Stout's demand in September 1959, Kisner filed a charge against the local
alleging refusal to bargain in good faith. According to Stout, in disposition of this
charge, he sent Kisner the following letter in March 1960:
This union has formerly asserted its representation, for purposes of collective
bargaining, of a majority of the sheet metal workers employed by you. We
do not now claim to be, nor are we empowered by your employees to act as
such representative, and are therefore no longer the collective bargaining agent
for the sheet metal workers employed by you.
You formerly recognized this union as such representative upon request duly
made of you. This will serve as notice to you that further recognition is not ac-
cepted for the reason stated. Although this union was not certified by the
National Labor Relations Board as the bargaining agent for your employees, we
deem it proper to send them a copy of this letter for their information.
Despite this purported "disclaimer" sent to Kisner by Stout in March 1960, Stout's
own testimony makes it clear that both before and after its sending the business
manager made open effort to persuade other employers not to do business with Kisner
because Kisner did not have a contract with the union he represented. Such effort,
including picketing at a construction site where Kisner was performing work under
subcontract, is more fully described in the next section.
In substance, it is General Counsel's contention that in pursuing their objective,
Local 299 and Stout violated the above-noted sections of the Act. The sections
invoked:
SEC. 8. (b) It shall be an unfair labor practice for a labor organization or its
agents-
(4) (i) to engage in, or to induce or encourage any individual employed
by any person engaged in commerce or in an industry affecting commerce
to engage in, a strike, or a refusal in the course of his employment to use,
manufacture, process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any services; or (ii) to
theaten, coerce, or restrain any person engaged in commerce or in an in-
dustry affecting commerce, where in either case an object thereof is:
* * * * * * *
(B) forcing or requiring any person to cease using, selling, handling,
transporting, or otherwise dealing in the products of any other producer,
processor, or manufacturer, or to cease doing business with any other
person, or forcing or requiring any other employer to recognize or bargain
with a labor organization as the representative of his employees unless such
' As noted below , in the section entitled "Conclusions ," the complaint contains no
allegations and the record no evidence concerning the extent of commerce engagement by
any of the secondary employers involved herein.
SHEET METAL WORKERS INT'L ASSN., LOCAL 299, ETC. 1 209
labor organization has been certified as the representative of such employees
under the provisions of Section 9: Provided, That nothing contained in this
clause (B) shall be construed to make unlawful, where not otherwise un-
lawful, any primary strike or primary picketing;
Provided further, That for the purposes of this pragraph (4) only, nothing
contained in such paragraph shall be construed to prohibit publicity other
than picketing, for the purpose of truthfully advising the public, including
consumers and members of a labor organization, that a product or products
are produced by an employer with whom the labor organization has a
primary dispute and are distributed by another employer, as long as such
publicity does not have an effect of inducing any individual employed by
any person other than the primary employer in the course of his employ-
ment to refuse to pick up, deliver, or transport any goods, or not to per-
form any services, at the establishment of the employer engaged in such
distribution;
B. Events in issue
Conduct by the Respondents claimed to have been violative of the Act were cen-
tered at a construction project in Clarksburg, West Virginia, the ultimate beneficiary
of the construction being J. C. Penney Company. Stated as succinctly as possible,
the project involved the following concerns. Marion Realty Investment Company is
the owner of a building being constructed to be occupied by Penney under lease.
To perform work on this project Marion awarded contracts to the following em-
ployers: Clyde Shrum, for masonry and excavation; Stuart-McMunn Company for
air-conditioning, heating, ventilating, and plumbing; and William Sharpe Jr. Electric
Company for electrical work. In its turn, Stuart-McMunn subcontracted part of
its work to Kisner-specifically for certain sheet metal work for the air-conditioning,
heating, and ventilating.
Sometime during the winter of 1959-60, Stout visited an official of Stuart-
McMunn, told him his organization no longer had a contract with Kisner, and asked
if the latter concern was going to be awarded a subcontract. The official gave Stout
no answer.
Some 2 or 3 months befort the hearing Stout visited another official of Stuart-
McMunn, its "estimator," and asked to whom this company was awarding the con-
tract for the sheet metal work. Upon the reply that Kisner would have this work,
Stout asked that it not be awarded to Kisner, since his union had no contract with
this company.
In April 1960, Stout approached the construction superintendent for Marion
Realty and said be understood that Kisner was to do the sheet metal work. On
this and subsequent occasions Stout warned the superintendent that if Kisner came
on the project there "would be trouble and in all probability . . . a picket on the
job." 2
Despite Stout's warnings Kisner was awarded the subcontract, and employees of
this company started actual work on the project on the morning of June 24, 1960.
With the appearance of these workers on the job there came a picket, previously
and admittedly employed by Stout, on behalf of Local 299, who bore a sign stating:
"Sheet Metal Work on this job Done by Non-members of Local 299." The picket
remained in front of the construction project during the days of June 24 and 25,
and until early afternoon on June 27, when further picketing was enjoined by a local
court.
It is undisputed that upon appearance of the picket placed there by Local 299,
employees of subcontractors Stuart-McMunn and Clyde Shrum, identified hereto-
fore, walked off and remained away from their work on this project until the morn-
ing of June 28.
The picket was at the project only while employees of the primary employer,
Kisner, were on the premises.
As Stout's letter to Kisner in March 1960 admits, Local 299 has not been cer-
tified by the Board.
C. Conclusions
As to the issue of violation of Section 8(b) (4) (ii) (B), while the facts set forth
above plainly show, in the opinion of the Trial Examiner, coercion and restraint of
secondary employers, General Counsel failed both to allege and to adduce facts
'As a witness , Stout admitted that he told the superintendent that if Kisner did any
of this work "there would be trouble."
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to support the necessary finding that any of these secondary employers are "engaged
in commerce or in an industry affecting commerce ." Although there may be merit
in General Counsel's contention , made in his oral argument , that the Board will
assert jurisdiction in cases upon proof that the primary employer is engaged in com-
merce, it is quite another matter to conclude , in the absence of either evidence or
allegation of commerce engagement by secondary employers , ,that there was coercion
or restrain of "any person engaged in commerce or in an industry affecting
commerce." 3
For the same reasons, plus the facts that neither Stout nor the picket made oral
or other effort to persuade any secondary employee to stop work , and conducted such
picketing at times only when employees of Kisner were on the job, the Trial Ex-
aminer must conclude that General Counsel has also failed to sustain his allegations
relating to violation of Section 8(b) (4) (i).4
It will therefore be recommended that the complaint be dismissed in its entirety.
[Recommendations omitted from publication.]
8 The Trial Examiner notes that in Gilmore Construction Company, 127 NLRB 541,
cited by General Counsel as authority governing this case , the Board specifically found
that both the primary and secondary employers were engaged in commerce within the
meaning of the Act.
4 This section proscribes inducement of "any individual employed by any person engaged
in commerce or in an industry affecting commerce."
Alumatic Windows, Inc. and Millmen's Local 1452 , United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO. Case No. 7-CA-93796. June 00, 1961
DECISION AND ORDER
On January 4,1961, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case, and finds merit in certain
of the Respondent's exceptions. Accordingly, the Board adopts the
findings and conclusions of the Trial Examiner only insofar as they
are consistent with the Decision herein.'
The Respondent fabricates and sells to consumers aluminum build-
ing products such as storm doors, windows, and porches. An essential
part of its operations consists in the installation of its products on
the premises of its customers. During 1959 it employed 12 installers
for such work.
In the summer of that year three of the Respondent's installers,
among them Blasdhak, the alleged discriminatee, joined a newly or-
1 Respondent contended that the installers , including Blaschak , the alleged discriminatee,
are independent contractors . We affirm the finding of the Trial Examiner that the in-
stallers are employees of the Respondent.
131 NLRB No. 152.