United Brotherhood of Carpenters and Joiners of America

National Labor Relations Board - Board Decisions

Apr 25, 1952

98 N.L.R.B. 1288 (N.L.R.B. 1952)

1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LOCAL UNION No. 50, UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL and CLYDE M. FURR. Case No. 10-CO-37.
April25,1952
Decision and Order
On December 17, 1951, Trial Examiner Horace A. Ruckel issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief. The Respondent filed a brief in sup-
port of the Intermediate Report.
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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions and modifications
noted below.
1. We unanimously find, contrary to the Trial Examiner, that the
complainant, Furr, is engaged in commerce within the meaning of
the Act and that it would effectuate the policies of the Act to assert
jurisdiction herein. The record discloses that Furr's operations at
the Army Air Base, out of which the instant controversy arose, were
part of the national defense effort and, although his contract amounted
to $1,740, his dispute with the Respondent involved the general con-
tractor's entire job at this Air Base amounting to $305,0001
2. The Trial Examiner found that the Respondent did not call a
strike of the employees of Emory & Richards, the general contractor,
and that therefore it did not violate Section 8 (b) (4) (A) or (B)
of the Act. In reaching this conclusion, he found, in effect, that the
5-minute delay in starting work was authorized by Tillett, the gen-
eral construction foreman of Emory & Richards, in response to the
request of Respondent's business agent, Keith, in order to enable
Keith to settle his dispute with Furr over the caulking guns.
The General Counsel contends that this 5-minute delay amounted to
a strike prohibited by Section 8 (b) (4) (A) and (B) of the Act.
We have carefully considered the record and find that the General
Counsel's contention is not sustained by a preponderance of the evi-
dence. A fair appraisal of the credited testimony shows that the
5-minute delay occurred in the context of the following coincidental
' Westport Moving and Storage Company, 91 NLRB 902 ; Truck Drivers Local Union No.
646, etc. and Jamestown Builders Exchange, Inc, 93 NLRB 386.
Chairman Herzog and Member Peterson join in the determination to exercise jurisdiction.
98 NLRB No. 209.
LOCAL UNION NO. 50, BROTHERHOOD OF CARPENTERS, ETC. 1289
events : A few minutes before the work day began, Business Agent
Keith requested Complainant Furr to furnish caulking guns to the
two union carpenters whom Furr had agreed to hire. Furr refused
to do so, although he customarily supplied these guns to his non-
union employees, and began to walk away from Keith. At that mo-
ment, the steward blew the starting whistle and some 50 or 60 carpen-
ters employed by the general contractor, who were standing nearby
waiting for the whistle, shouldered their tool boxes to go to work.
Spontaneously, Keith called out, "Wait, this [matter] is not settled
yet," and said to General Construction Foreman Tillett, who was
a few feet away, that he desired a few minutes to straighten out his
dispute with Furr. Tillett agreed and returned to his office.
In these circumstances, we are not persuaded that the preponder-
ance of the evidence establishes that Keith's spontaneous utterance
amounted to calling a strike of Emory & Richards' employees which
had as its object either forcing or requiring Emory & Richards to
cease doing business with Furr, as provided in Section 8 (b) (4) (A),
or forcing or requiring Furr to recognize or bargain with the Respond-
ent, as provided in Section 8 (b) (4) (B). On the contrary, the
record supports the Trial Examiner's finding, which we are not per-
suaded to disturb, that Emory & Richards agreed to delay the com-
mencement of work temporarily, so as to afford the Respondent an
opportunity to adjust its dispute with Furr.2 It is for this reason
that we say the stoppage was not a strike; not as our dissenting
colleagues suggest, simply because it was short. It is settled law
that Section 8 (b) (4) does not prohibit a labor organization from thus
enlisting an employer's assistance.
Accordingly, we shall dismiss the complaint herein. However, in
view of our finding that a strike prohibited by Section 8 (b) (4) (A)
or (B) was not proved, we find it unnecessary to determine, as did
the Trial Examiner, whether those sections would have been violated
if it were found that the Respondent had engaged in or induced or
encouraged a strike.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Res-
pondent, Local Union No. 50, United Brotherhood of Carpenters and
Joiners of America, AFL, be, and it hereby is, dismissed.
CHAIRMAN HERZOG and MEMBER PETERSON, dissenting in part :
We cannot agree with our colleagues that the delay in starting
work on the morning of September 28 was not a strike, and that
2 It is undisputed that at the time of the occurrence Tillett denied Furr's assertion that
Keith had called a strike.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its object was not, to compel Emory & Richards to force Subcon-
tractor Furr to settle,the dispute with the Respondent Union. Our
colleagues in effect hold that because the stoppage was short it was
not a strike. But is seems, clear to us that the stoppage was short
only for one reason : because it was successful in accomplishing its
ultimate purpose-to compel Furr to accede to-the demands of the
Respondent and supply the caulking guns. Respondent's offense
was minor on the surface, and of brief duration, but it was of the
very character which Congress intended to discourage.
It is undisputed that the carpenters employed by the general con-
tractor, Emory and Richards, delayed going to work because of the
so-called spontaneous utterance by the Respondent Union's business
agent, Keith. It is also undisputed that they resumed work only
when Furr had agreed to the Respondent's demands after being
"advised" to do so by Tillett, the representative of Emory & Rich-
ards, whose carpenters had delayed starting work. There was no
reason for the carpenters employed by Emory & Richards to stop
work until Furr and Keith had negotiated their dispute, except for
the purpose of putting pressure on Furr. That demonstration
was enough to convince Furr that if he did not accede to the Res-
pondent's demands Emory & Richards would suffer, and would
terminate their contract with him in order to have work resumed on
the main part of their own job.
On these facts, we can only conclude that the Respondent applied
secondary pressure to Furr, and thereby violated Section 8 (b) (4)
(A) of the Act. We would so find.
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge filed on October 10, 1951, by Clyde M. Furr, the Gen-
eral Counsel of the National Labor Relations Board, herein called respectively
the General Counsel and the Board, by the Regional Director for the Tenth
Region (Atlanta, Georgia), issued a complaint dated October 6, 1951, against
Local Union No. 50, United Brotherhood of Carpenters and Joiners of America,
AFL, herein called Respondent, alleging that Respondent had engaged in and
was engaging in certain unfair labor practices affecting commerce, within the
meaning of Section 8 (b) (4) (A) and (B) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the complaint, accompanied by a notice of hearing, were duly served
upon Respondent and Furr.
With respect to the unfair labor practices, the complaint alleged in substance
that Respondent on or about September 27, 1951, and subsequently, has engaged
in, and by orders, instructions, directions, threats, appeals, and other means,
has induced and encouraged employees of the firm of Emory and Richards, and
other employers, to engage in strikes or concerted refusals in the course of their
employment to use, transport, or otherwise handle goods and articles, or to
perform services, objects thereof being (1) to force or require Emory and
LOCAL UNION NO. 50, BROTHERHOOD OF CARPENTERS, ETC. 1291
Richards, and other employers, to cease doing business with Furr unless he
acceded to Respondent's demands to recognize and bargain with Respondent,
and (2) to force or require Furr to recognize and bargain with Respondent as a
representative of his employees.
On November 7, 1951, Respondent filed its answer admitting certain allega-
tions of the complaint with respect to Furr's business but denying that it had
engaged in any unfair labor practices
Pursuant to notice, a hearing was held at Knoxville, Tennessee, on November
14 and 15, 1951, before Horace A. Ruckel, the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. The General Counsel, Respondent, and
Purr were represented by counsel and participitted'in the-hearing. Full op-
portunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties.
At the conclusion of the hearing the undersigned granted a motion by the
General Counsel to conform the pleadings to the proof in formal matters, and
reserved ruling on Respondent's motion to dismiss the complaint. This motion
is disposed of by the recommendations hereinafter made. The parties argued
the issues orally but waived briefs.
Upon the entire record in this case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Purr is an individual engaged in the business of metal weatherstripping and
caulking. He customarily employs two employees, and he himself also works
on jobs which he subcontracts. During the year 1950, the value of purchases
made and used by Furr amounted to approximately $8,000 consisting of weather-
stripping and caulking materials, substantially all of which he purchased outside
the State of Tennessee. During the same year, Furr performed services amount-
ing to about $26,000 and during 1951 he has performed or under contract work
amounting to approximately $38,000. Substantially all these services are per-
formed within the State of Tennessee. On March 27, 1951, Furr was a successful
bidder on the caulking work on three dormitories and a fire station being erected
at one end of the McGhee-Tyson Airport, a commercial airport at Knoxville,
Tennessee. The construction firm of Emory and Richards was the principal
contractor on this work. The amount of the principal contract was approxi-
mately $305,000 and was made with the U. S. Army Corps of Engineers. The
present case is concerned with Furr's work as a subcontractor on this project.'
During the year 1951, Emory and Richards have purchased materials in a total
amount of approximately $501,000. All of these purchases have been made from
jobbers or retailers within the State of Tennessee. There is no evidence in the
record as to where these materials originate. During the same period, Emory
and Richards have performed work on contracts amounting to approximately
$796,000 all within the State of Tennessee.
If Furr's activities as a subcontractor affect commerce, a finding to that
effect must rest principally if not wholly upon the work done by Emory and
Richards and a determination of whether this work, as the General Counsel
contends, substantially affects national defense, one of the grounds for the
' Emory and Richards , however , have other contracts with the Federal Government, not
concerned in this hearing and with which Furr Is not connected.
1292 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD
previous assertion of jurisdiction by the Board! I perceive no other grounds
applicable here. The only evidence that the work on the three dormitories and
tire station at the McGhee-Tyson Airport is in connection with the national
defense is that the Emory and Richards contract was with the U. S. Army Corps
of Engineers. There is no evidence in the record as to what the Engineers
intend to do with the buildings after completion. There is an inference,
perhaps a strong one, that any work done by or for the U. S. Army Corps of
Engineers is connected with the national defense. But I hesitate to recommend
that the Board assert jurisdiction on the basis of this inference. Realizing,
however, that the question is perhaps a close one and that the Board in its
discussion may wish to assert jurisdiction,' I hereinafter consider the case
on its merits.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 50, United Brotherhood of Carpenters and Joiners of America,
is a labor organization admitting employees of Purr and Emory and Richards
to membership. It is affiliated with the American Federation of Labor.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Purr began work on his subcontract with Emory and Richards on September
20, 1951, and employed 2 workmen, Truman Carey and Jim Carey, Purr himself
working on the job. Their particular task was to caulk Celotex sidings
constructed by the carpenters employed by Emory and Richards, and when
caulked to hand them back to these carpenters for installation. Neither Purr
nor the 2 Careys was a member of the Union. All other carpenters on the
job, from 50 to 60 in number, were. On September 27, 1 week after Purr had
started to work, he was approached by Joe Keith, business agent for the
Union, and a conversation followed outside the presence or hearing of any
employee of Purr or of Emory and Richards. Keith's testimony is to the
effect that his purpose in coming to Purr was to protest the wages which he
was paying to the 2 Careys and because of complaints from the carpenters
that he employed nonunion labor.
The evidence shows that caulking is a work usually done by carpenters. Purr
admitted, while testifying, that under his contract with Emory and Richards
he was obligated to pay the prevailing wage set forth in the contract specifications,
which in the case of carpenters was $2.15 an hour, but that he was, paying the
Careys only $1 an hour. He testified that the contract did not specifically
mention caulkers but that it has "since been agreed', 4 that their wage should
be $2.15 an hour, or the same as that of carpenters. Purr's insistence that the
2 Careys were caulkers and not carpenters, and that hence he was not obligated
to pay them the wages of the latter, would have more plausibility if it were not
for the fact, admitted by Purr on the stand, that the wage of $1 an hour
paid the Careys was 15 cents an hour under that paid common laborers on
the job.
2 See Hotel Association of St. Louis , etc., 92 NLRB 1388 , citing cases in which the
Board sets forth the criteria for its assertion of jurisdiction. And see particularly
Westport Moving and Storage Company , etc., 91 NLRB 902, and Machine Products Company,
S1 NLRB 106, cited by the General Counsel in his brief,
8 The Board in Hotel Association of St. Louis, supra, pointed out that it does not consider
Itself rigidly banned by its previously announced formula, although its departure from
it in that case was in the direction of its restriction rather than its extension , and there
was no question of evidence involved.
4 Presumably since the events hereinafter related.
LOCAL UNION NO. 50, BROTHERHOOD OF CARPENTERS , ETC. 1293
The argument between Keith and Furr became heated, the former complaining
that Furr was paying under the union scale and Furr contending that he could
not afford to pay more and threatening Keith with invocation of the Taft-Hartley
Act. It is clear from the record that both Keith and Furr equated payment of
the union scale to employment of union labor. Furr's further testimony is that,
as the argument progressed, Keith threatened a strike, presumably of the
carpenters employed by Emory and Richards. Assuming, without finding, that
he did, such a threat made to a primary employer is not violative of that section
of the Act Respondent is charged with violating.
The upshot of the discussion was that Furr agreed to accept two carpenters
furnished by Keith who should be present at the building site on the following
morning. The testimony of Furr and Keith both make clear, and Furr admitted
while testifying, that he "surrendered" on this point. A detail on which no de-
cision was reached, though it was discussed, had to do with who should supply
the caulking guns, Keith insisting that the employer customarily furnished them
and Furr refusing to do so although he had furnished them to the Careys. Keith
testified that he believed that this point had been settled in his favor, and Furr
that it had not. I find that there was no meeting of minds on this point.
On the following morning, September 28, Keith arrived at the building site with
2 carpenters shortly before the 7: 30 starting time. The 3 men were standing
near John Tillett, general construction foreman for Emory and Richards, and
only a few feet from the group of 40 to 50 carpenters employed by Emory and
Richards, who were waiting for the starting whistle. Furr approached the group
and discussion was renewed with Keith as to who should supply the caulking guns.
Keith's 2 carpenters had no guns with them and Keith contended as he had the
evening before, that Furr should furnish them. Furr asserted that he would not,
and walked away. At that moment the whistle blew and the Emory and Richards'
carpenters shouldered their tool kits. Keith, according to his own testimony as
well as that of Tillett, and Lindsey,' the union steward whose duty it was to blow
the whistle, called out : "Wait a minute, there is a matter not yet settled" or
words to that effect , and the carpenters paused with their tool kits on their shoul-
ders. The credible testimony of Keith and Lindsey, as well as that of Tillett
himself, is that Keith's exclamation was addressed to Tillett. The testimony of
all 3 , and I find, is that Tillett in reply called out : "O. K.," and walked away
towards the superintendent 's house.
Furr, who had started towards the dormitories as the whistle blew, upon ob-
serving that the carpenters had paused in going to work, changed his course to
the superintendent's house where he met Tillett and Vineyard, the latter a fore-
man under Tillett, and in an excited manner asked them to be witnesses that
the carpenters were on strike. Tillett denied this and when Furr told him what
the precise controversy was, advised Furr to let Keith's men use the caulking
guns. Furr acceded to this suggestion and returned to the group of carpenters
calling out, "Let's go."' The job steward blew his whistle again and the carpen-
6 Furr testified that although by that time he was about 100 feet away, Keith's words
were : "don ' t move," or to that effect . I do not accept his version.
6 The testimony of Lindsey , who was waiting to blow his whistle, and whose description
I accept as accurate, was as follows. "Well, he [Furr] was just walking into the crowd.
It seemed to me he was speaking to about all of us. He said , 'Well, let's go .' I think
everybody just took it for granted that it was settled and they all started to work." Furr
himself was unable to state with certainty who gave the order to go to work.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ters reshouldered their tool kits and went to work. From 5 to 10 minutes elapsed
between the two whistles, according to Purr, but the other witnesses estimated
it at 5 minutes and I find the latter period to be substantially in accord with the
fact. No wages were docked as; the result of this 5-minute interlude. Later the
same day Purr filed his charge in this case.
Conclusions as to the Incident of September 28
The General Counsel contends that the failure of the carpenters to work
from 7: 30 to 7: 35 on the morning of September 28 under the circumstances
described above, constituted a strike of the employees of a secondary employer-,
Emory and Richards, for the purpose of compelling the employees of a primary
employer, Purr, to join the Union and to bargain with it, in violation of Section
8 (b) (4) (A) and (b) of the Act.7
I am unable to perceive in the events described above any strike or induce-
ment of employees of Emory and Richards to go on strike for any purpose,
lawful or unlawful. It is admitted that the matter of whether Furr's employees
should be members of the Union had been settled on the evening of September
'27, and there is no contention that it was in controversy on the following morning
at the work site. The question presented there was simply whether Purr should
supply the caulking guns to the two new employees as he had been doing
up to that point to the Careys. There was therefore no question of attempting
to force or require Purr to join the Union or to employ union labor, which is
the gravamen of Section (A), quoted above.
I do not consider that the delay of 5 minutes in going to work on the
morning of September 28 was a strike in any ordinary meaning of the term.
Tillett testified he did not consider it such, and told Purr so at the time. The
carpenters, who it does not appear knew the cause of the delay, do not
appear to have considered it as such. Only Purr considered it, or wished to
consider it, a strike. The men were not docked for the 5 minutes between
7: 30 and 7: 35 a. in. Moreover, the record is conclusive that Keith did not
order the carpenters not to go to work, but merely requested Tillett to hold
up the whistle while the matter of the guns could be ironed out. Tillett willingly
consented, and his "0. K.," called out to the men, amounted to an order not to
go to work. There is no showing whatsoever that if Tillett had refused his
consent these employees would not have gone to work at 7: 30.
° This section of the Act reads as follows :
Section 8 (b) : It shall be an unfair labor practice for a labor organization or its
agents-(4) to engage in, or to induce or encourage 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 : (A)
forcing or requiring any employer or self-employed person to join any labor or employer
organization or any employer or other person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of any producer, processor, or manu-
facturer, or to cease doing business with any other person , (B) 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 provision of Section 9 ; . . .
LOCAL UNION NO. 50, BROTHERHOOD OF CARPENTERS , ETC. 1295
Nor do I find, even assuming that the above-related events constituted either
a strike or a threat of strike, that it had as its purpose forcing Furr to recognize
or bargain with the Union as a representative of his employees within the
meaning *of the Act, as confen'ded by the General Counsel. At the most, the
failure of Purr to furnish caulking guns constituted a grievance, and Keith's
position cannot, in my opinion, be described as an attempt to force Furr to
recognize or bargain with the Union in any common sense meaning of the term.
The General Counsel's contention impresses me as highly technical and it rests on
exceedingly flimsy evidence. I find that the Respondent did not, as alleged
in the complaint, violate Section 8 (b) (4) (A) and (B) of the Act.
In view of a further contention of counsel for Furr, apparently not shared
by the General Counsel, the subsequent history of the two Careys will be con-
sidered, In point of fact the two men supplied by Keith did no caulking work.
No sooner had they started to load the caulking guns when Blanton, the super-
intendent employed by Emory and Richards, Tillett's own superior, directed
Keith, Furr, and Tillett to let the carpenters who were putting up the Celotex
sidings do the caulking, and one of the Careys do the loading of the guns. Til-
lett's testimony is that he desired this arrangement becfiu'se' since Purr had
started caulking the carpenters on occasion had to stand around waiting for
Furr to finish caulking. Blanton's direction was complied with immediately,
the carpenters took over the caulking, Jim Carey did the loading, and the two
carpenters furnished by Keith were assigned to other work and laid off that
evening.
The caulking of the Celotex sidings was completed by October 5, and on
October 11 Furr started caulking windows. For a few days prior to this time
window caulking had been done by a carpenter employed by Emory and Richards
using Purr's guns. After Furr and Jim Carey had taken over and after they
had been working for about 10 minutes, Blanton told Purr to get off the job
because he feared that if he continued on it there would be a strike. Furr left,
appealed the matter to Emory himself, and Emory stood behind Blanton.
Shortly thereafter, a representative of the Board arrived in town to investigate
the charge which Purr had filed, and under an arrangement made with Emory,
Jim Carey resumed caulking windows and finished the job on November. 9.
It is not an unfair labor practice for one employer , in this case the general
contractor, to refuse employment to another employer, in this case Purr, a sub-
contractor, because of his fear, whether well-founded or not, of a strike and the
contentions of counsel for Furr in this respect are found to be without merit.
CONCLUSIONS OF LAW
1. Clyde M Furr is not engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. Local Union No. 50, United Brotherhood of Carpenters and Joiners of
America, affiliated with the American Federation of Labor, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. Respondent has not engaged in the unfair labor practice alleged in the
complaint.
[Recommendations omitted from publication in this volume.]