Local Union No. 553

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LOCAL UNION NO. 553, AFFILIATED WITH THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, A.F.L. and ALTON WATER COMPANY. Case No. 14-CD-37. July 16, 1953 DECISION AND DETERNIINATION OF DISPUTE This proceeding arises under Section 10 (k) of the Act, which provides that "whenever it is charged that any person has en- gaged in an unfair labor practice within the meaning of Section 8 (b) (4) (D) of the Act, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen . . . ." On April 9, 1953, Alton Water Company, herein called the Employer, filed with the Regional Director for the Fourteenth Region a charge alleging that Local Union No. 553, affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, A.F.L.,1 herein called Plumbers, has engaged in and is engaging in certain activities proscribed by Section 8 (b) (4) (D) of the Act. It was alleged, in substance, that the Plumbers had induced and encouraged employees of the Em- ployer to engage in a concerted refusal to work in the course of their employment with an object of forcing or requiring the Employer to assign particular work to members of the Plumbers rather than to employees who are members of International Hod Carriers, Building and Common Laborers Union of America, Local 218, A.F.L., herein called Hod Carriers. Pursuant to Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charge and provided for an appropriate hearing upon due notice to all the parties. Thereafter, a hearing was held before Harry G. Carlson, hearing officer, on May 11, 1953. The hearing officer permitted the Hod Carriers to intervene on the basis of its contract with the Employer.2 All parties appeared at the hear- ing and were afforded full opportunity to be heard, to examine and cross- examine witnesses , and to adduce evidence bearing on the issue. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby af- firmed. The Employer and the Plumbers filed briefs with the Board. The Plumbers' request for oral argument is hereby denied as the record and briefs adequately present the issues and the positions of the parties. Upon the entire record in the case, the Board makes the following: 1 The name of Respondent appears as amended at the hearing. 2 Formal permission to intervene was inadvertently omitted on the record It is hereby granted. 106 NLRB No 36. LOCAL UNION NO. 553 187 FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Alton Water Company, an Illinois corporation, is a wholly owned subsidiary of the American Water Works Company of Philadelphia, Pennsylvania, which operates water utility com- panies in approximately 15 States. Supplying water to the resi- dents of Alton, Illinois, and adjacent areas, the Alton Water Company operates under a certificate of convenience and ne- cessity from the State of Illinois. The parties stipulated and the Board finds that the Employer is engaged in commerce within the meaning of the Act. IL THE LABOR ORGANIZATIONS INVOLVED Local Union No. 553, affiliated with the United Association of Journeymen and Apprentices of the Plumbing andPipefitting Industry of the United States and Canada, A.F.L., and Inter- national Hod Carriers, Building and Common Laborers Union of America, Local 218, A.F.L., are labor organizations within the meaning of the Act. III. THE DISPUTE A. The facts From time to time the Employer finds it necessary to in- stall additional water mains, and on such occasions the work is performed either by the Employer itself, utilizing its own em- ployees, or, if the Employer's facilities are inadequate for the job, by an independent contractor. The Employer's employees who engage in this type of work are represented by the Hod Carriers under a voluntary recognition contract executed on August 14, 1952, and still in effect. The contract also contains a union- shop provision. Early in March 1953, shortly before the Employer was sched- uled to begin installation of a water main in the vicinity of Alby Street Road, Harrelson, business manager of the Plumbers, asked King, the Employer' s manager , to let the job out to a con- tractor. Harrelson's uncontradicted testimony was that he explained to Mr. King that the request was made for several reasons, one of them being that people in the construction industry gets [sic] a higher rate of pay than employees of the Alton Water Company and to proceed with this building trades and construction work with this type of employee was pulling the rate for the construction industry down and wasn't doing the construction industry any good. King rejected Harrelson's request stating that the Employer intended to use its own employees on the job. On the morning of March 23, the Employer assembled a crew of about 8 or 10 employees in the Alby Street Road area to dig 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trenches and string and connect pipe. Soon after the trenching machine was placed in position , Harrelson appeared carrying a picket sign. According to Harrelson, he asked the trenching ma- chine operator' whether he was going to work behind a picket line." King then asked the trenching machine operator and the employees, of the Employer if they were going to work where- upon Harrelson, according to the uncontradicted testimony of Stupperich, delivered the following admonition to King, "I know what you are going to do. You are going to let this job to con- tract." Harrelson then began to picket the project.5 The trench- ing machine operator and the employees of the Employer refused to work in the face of the picket and the project was halted. Picketing ceased after 15 minutes. On April 1 and 2 work on the Alby Street Road project pro- ceeded without interruption. When work was resumed on April 6, Harrelson reappeared, this time in the company of 7 persons, and, together with those individuals, picketed the project. The picket sign stated, as already found: "Alton Water Company re- fuses to employ members of Plumbers and Pipefitters Local 553 on this job." 6 The approximately 10 or 12 employees of the Employer then assigned to the job , as well as the trenching ma- chine operator, refused to work in the face of the picket line. Picketing ceased after 15 minutes . No attempt was later made to resume work on the water main. At the hearing, Harrelson testified that he picketed the Em- ployer because the Employer "wouldn't let . . . [the work in dispute] to contract." Harrelson also testified that he would have expected the Employer to let the workto a union contrac- tor and that, had this been done, members of the Plumbers, who have a contract with the Master Plumbing-Piping Contractors Association, would have received "that part [of the job] coming under our jurisdiction . . . the placing of the pipe in the ditch and making the joints." Harrelson admitted that the Employer's assignment of the job to a nonunion contractor would have caused 3The trenching machine operator was an employee of a contractor to whom the Employer had let out the trenching machine work 4Stupperich, the Employer's superintendent, testified that Harrelson asked the trenching machine operator whether he was a union man; the trenching machine operator replied that he was; and Harrelson ordered him to strut down his machine. As the conflict in testi- mony between Stupperich and Harrelson is insubstantial, we need not resolve it 5 King did not observe the placard carried by Harrelson on March 23. However, it is apparent from the record that the placard bore the same slogan on March 23 as on April 6, when picketing again took place, e g., "Alton Water Company refuses to employ members of Plumbers and Pipefitters Local 553 on this job." 6 The Plumbers offered to prove that the picket sign used on March 23 was the only one available, that the decision to picket was sudden which made it impossible to print a new sign advertising that the Employer refused to let out this work to a contractor, and that the decision to picket on April 6 was unexpected and again the same sign was used because no other was available. The hearing officer rejected the offer of proof Manifestly, evidence as to the slogan with which the Plumbers may have intended to conduct the picketing was quite irrelevant. What is significant is the wording of the placard actually used to induce the work stoppage Even assuming the admissibility of the evidence sought to be adduced, we note by their proffered testimony that the Plumbers found themselves with the identical slogan on the second round of picketing despite ample opportunity to revise the placard. Accordingly, the hearing officer's ruling is affirmed. LOCAL UNION NO. 553 189 further picketing by the Plumbers. When asked, after thus tes- tifying, "So that the net result was that you were trying to get this work let to a union contractor who would employ members of your local, is that right," Harrelson replied, "That is true." B. Contentions of the parties The Employer contends that the Plumbers picketed for the sole purpose of forcing it to assign the water main work to members of the Plumbers rather than to its own employees who were represented by the Hod Carriers, thereby violating Sec- tion 8 (b) (4) (D) of the Act. The Hod Carriers, asserting that their only interest in this proceeding is to "protect the work assignment and see to it that our contract is in recognition," defers to the Board's deter- mination the question of whether the Plumbers' conduct herein is violative of the Act. The Plumbers contends that it did not picket the Employer to force a work assignment to its members but rather because the Employer refused to engage a contractor for the work in dispute, and that, in these circumstances, no violation of Section 8 (b) (4) (D) occurred. C. Applicability of the statute 7 While we agree that the Plumbers sought to compel the Em- ployer to contract out the water main work, this, without more, was not the sole object of the Plumbers' conduct. Thus, Harrel- son explained to King that unless the work in question was let out rather than assigned to the employees of the Employer, the effect would be to depress construction industry wage scales. Moreover, Harrelson picketed the project with the demand that the Employer employ members of the Plumbers. Indeed, Har- relson admitted that the Plumbers would not be satisfied were the water main installed by any contractor and stated unequiv- ocally that only use of a contractor employing members of the Plumbers would avert further picketing by the Plumbers. Clearly, therefore, the Plumbers' endeavors went beyond a mere demand that the Employer let the work out. Rather did the Plumb- ers demand that the Employer contract the water main work to a construction firm which would employ only members of the Plumbers. And while the Plumbers did not thereby require the 7The relevant portions of Section 8 of the Act are as follows: (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 perform any services, where an object thereof is .. . (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to any order or certification of the Board deter- mining the bargaining representative for employees performing such work . . . 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer directly to assign the water mainworkto their mem- bers, it, nevertheless, acted to force the Employer to designate a third party who would pro hac vice accomplish the reassign- ment of the work from the Hod Carriers to the Plumbers. Viewed in substance rather than form, the dispute was therefore over an employer' s assignment of work to its own employees who are members of one labor organization rather than to employees who are members of another labor organization.' We so find. In view of the foregoing, we conclude that the record before us establishes that there is reasonable cause to believe that the Plumbers induced and encouraged the employees of the Em- ployer to engage in a concerted refusal to perform services in order to force or require the Employer to assign the water main work to members of the Plumbers although this work had been assigned to employees who were members of the Hod Carriers. Such factual circumstances are sufficient to invoke the Board's jurisdiction to hear and determine a dispute within the meaning of Section 8 (b) (4) (D) and 10 (k) of the Act. We find that this is a dispute within the meaning of Section 8 (b) (4) (D) and 10 (k) of the Act and, contrary to the Plumbers' contentions, that it is properly before us for determination. D. Merits of the dispute At the time the Plumbers sought the assignment of the water main work for its members, the Employer had assigned such work to its own employees represented by the Hod Carriers. The Employer neither then nor at any other time had any bar- gaining relationship with the Plumbers. The dispute was there- fore over an employer' s assignment of work to its own em- ployees who are members of one labor organization rather than to employees who are members of another labor organization. It irg well established that an employer is free to make such assignments free of strike pressure by a labor organization, "unless such employer is failing to conform to an order or cer- tification of the Board determining the bargaining representative for employees performing such work."' The Plumbers does not claim to be the certified bargaining representative for employees performing water main work. We find, accordingly, that the Plumbers was not lawfully en- titled to require the Employer to assign the water main work to members of the Plumbers rather than to employees of the Employer who are members of the Hod Carriers. However, we are not, by this action, to be regarded as "assigning" the work in question to the Hod Carriers. io 8Cf. United Brotherhood of Carpenters and Joiners of America, Local 581, et al. (Ora Collard), 98 NLRB 346. 9Pile Drivers, Bridge, Wharf and Dock Builders, United Brotherhood of Carpenters and Joiners of America, Local Union No. 34, AFL (Klamath Cedar Company), 105 NLRB 562; Juneau Spruce Corporation, 82 NLRB 650. loLos Angeles Building and Construction Trades Council, AFL (Westinghouse Electric Corporation), 83 NLRB 477. LOCAL UNION NO. 553 191 DETERMINATION OF DISPUTE On the basis of the foregoing findings of fact, and upon the entire record in this case , the Board makes the following de- termination of dispute , pursuant to Section 10 (k) of the Act: 1. Local Union No. 553, affiliated with the United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada , A.F.L., is not and has not been lawfully entitled to force or require the Alton Water Company to assign the back filling and pipe connection work in connection with the Alby Street Road project to mem- bers of the Plumbers rather than to employees who are mem- bers of International Hod Carriers , Building and Common Laborers Union of America, Local 218, A.F.L. 2. Within ten ( 10) days from the date of this Decision and Determination of Dispute , the Respondent shall notify the Re- gional Director for the Fourteenth Region in writing as to what steps the Respondent has taken to comply with the terms of this Decision and Determination of Dispute. Member Houston , dissenting: I disagree with the finding of the majority that the object of the Plumbers was to obtain the assignment of the work in dispute al- though the Employer had made the assignment to the Hod Car- riers . In my view , in picketing the project the Plumbers had as its object the letting out of the water main work by the Employer to an independent contractor who would observe the union wage scales of the construction industry . Neither the fact that the project was picketed under the slogan that the Employer refused to hire members of the Plumbers nor the testimony of Harrel- son, the Plumbers' representative , that the result expected from the picketing was the hiring of members of the Plumbers, assumes for me critical significance . Rather do I regard this as merely indicative of the ultimate expectations of the Plumb- ers, i.e., that, as a consequence of contracting out under union standards in the construction industry , members of the Plumb- ers would then be hired. What is significant and lightly treated by my colleagues is the fact that the essential demand by the Plumbers upon the Employer, asdemonstratedbyHarrelson's statements to King both before and during the picketing, was that the work go to a construction contractor . As Harrelson testified in answer to the question " if this work would have been let to an outside contractor , would there have been other crafts working on the job other than the fitters" -- Yes, the construction industry would have then got [sic ] into the picture through the contractor and they would have bid construction laborers and construction operating en- gineer and possibly an oiler and the plumbers ... and possibly truck drivers. In these circumstances, unlike my colleagues, Iamunable to perceive that the Plumbers sought to compel a r p esent assign- 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment of work to their members by the Employer. Accordingly, I would find that the purpose of the Plumbers' picket line was to further the legitimate trade union objective of achieving union construction wage scales on the project and, as such , falls with- out the definition of a jurisdictional dispute in Section 8 (b) (4) (D) of the Act. I would therefore quash the notice of hearing issued in this proceeding. Chairman Farmer and Member Styles took no part in the con- sideration of the above Decision and Determination of Dispute. PEARL BREWING COMPANY, LONE STAR BREWING COM- PANY and BREWERY WORKERS LOCAL UNION NO. 110, INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA, CIO, Petitioner. Case No. 39-RC-613. July 16, 1953 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Wilton Waldrop, hearing officer . The hearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles , and Peter- son]. Upon the entire record in this case, the Board finds : 1. The Employers are each engaged in commerce withinthe meaning of the Act.' 2. The labor organization involved claims to represent cer- tain employees of the Employers. 3. Questions affecting commerce exist concerning the repre- sentation of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a multiemployer unit of cashiers, shipping clerks, and storeroom employees ' of the Employers, herein separately designated as Pearl and Lone Star , respec- tively. The Employers contend that the proposed unit is in- appropriate and that the Petitioner may not properly represent their cashiers and shipping clerks in any unit because these employees check and audit the work of other employees whom the Petitioner presently represents. Pearl and Lone Star are competitors , individually and inde- pendently engaged in the manufacture and sale of beer in San Antonio, Texas. They are apparently the principal beer distribu- 'During the past year materials valued in excess of $500,000 were shipped directly to each of the Employers from points outside the State . Federal Dairy Co., Inc., 91 NLRB 638. 2 Storeroom employees are also designated in the record as middlemen. 106 NLRB No. 31.