United Association of Journeymen and Apprentices of The Plumbing and Pipe Fitting Industry of The United States and Canada

UNITED ASSOCIATION OF JOURNEYMEN, ETC. 783 UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION No. 32, AFL, and CLIFF SCHIEL PLUMBING AND HEATING CO. Case No. 19-CD-12. August 11, 1954 Decision and Determination of Dispute This proceeding arises under Section 10 (k) of the Act, which pro- vides : "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 8 (b), the Board is empowered and directed to hear and de- termine the dispute out of which such unfair labor practice shall have arisen, ..." On March 19, 1953, Cliff Schiel Plumbing and Heating Company, herein called the Schiel Company, filed with the Regional Director for the Nineteenth Region a charge against United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, Local Union No. 32, AFL, herein called Respondent or Plumbers Local 32, alleging that it had engaged in certain activities proscribed by Section 8 (b) (4) (D) of the Act. It was alleged, in substance, that the Respondent had in- duced or encouraged employees of the Schiel Company to engage in a strike at a job site in Port Angeles, Washington, with an object of forcing or requiring Cisco Construction Company and Tri-State Plumbing and Heating Company, herein called Cisco and Tri-State, respectively (both affiliated with the Schiel Company), to assign par- ticular work at a job site near Richland, Washington, to employees of a particular labor organization rather than to other employees. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director 'investigated the charge and provided for a hearing upon due notice to all parties. The hearing was held before Howard A. McIntyre, hearing officer, on January 5 and 7 and February 23 and 24, 1954. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. None of the parties filed a brief with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. Upon the basis of the evidence introduced at the hearing, we find that the Schiel Company is engaged in commerce within the mean- ing of the Act and that it will effectuate the policies of the Act to assert jurisdiction. 109 NLRB No. 118. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Plumbers Local 32, the Respondent herein, and Plumbers Local 598, which was permitted to intervene at the hearing, are labor or- ganizations within the meaning of the Act. 3. The dispute. A. Parties involved The Schiel Company (the Charging Party) is a plumbing contract- ing Company whose sole stockholders 1 and managers are' Andrew Cronkrite and Clifford Schiel, who are also owners and managers of Cisco, a general contracting partnership, and two-thirds majority stockholders in Tri-State, a plumbing contracting company. All three contracting firms have offices together at Portland, Oregon, and Kennewick, Washington. Respondent Plumbers Local 32 has jurisdiction over members at Port Angeles, Washington, and Plumbers Local 598 has jurisdiction at Richland, Washington. B. Background of dispute In 1952, Cisco obtained a contract to lay a water main outside Rich- land for the Atomic Energy Commission, and gave a cost-plus subcon- tract to Tri-State to lay the cast iron water pipe, for which Tri-State employed journeymen pipefitters from Plumbers Local 598. The dispute arose when Cisco itself sought to lay the concrete reinforced water pipe with pipelayers from a local of the AFL Laborers union at the rate of $2.05 or $2.10 an hour, instead of with pipefitters from Plumbers Local 598 at $2.75 an hour. When requested by Cronkrite to refer men to Cisco to lay the concrete pipe, the Laborers Local re- fused, stating that the work belonged to Plumbers Local 598.2 How- ever, Cisco insisted that the work be done by pipelayers at the lower rate, whereupon the union craftsmen and laborers then on the job walked off on January 19, 1953, and Cisco proceeded to lay the pipe with other employees. Tri-State did no more work under its cost- plus subcontract, and Cisco finished laying the cast iron pipe, as well. The local Building Trades Council began picketing-the Richland job, with a sign, "Cisco Construction Company Operating Non-Union"; it was still picketing on March 9, 1953, the date of the strike at the Port Angeles job. In the meantime, because of the above, Cronkrite, as "owner" of Tri-State, had been called before the Joint Conference Board (consist- ing of representatives of both plumbing contractors and Plumbers 1 With the exception of two qualifying votes held in the name of an attorney. 2 The Plumbers' and Laborers' Internationals in a 1941 agreement and the parties to the Washington State Agreement. (signed by Plumbers Locals 32 and 598, and by Tri-State and the,Schiel Company-but not Cisco) had,awarded the laying of all water mains to the Plumbers Union. Since 1944, concrete pipe had been laid by other contractors on this A. E C. project with journeyman pipefitters. UNITED ASSOCIATION OF JOURNEYMEN, ETC. 785 Local 598). Tri-State was fined $250 for not laying both the concrete and the iron watermain pipe, in violation of the "Scope of Work" pro- visions in the Washington State Agreement. On Friday, March 6, 3 days before the strike at the Port Angeles school, the Joint State Board of Negotiators and/or Arbitrators (of which Respondent's business agent, Straight, was secretary) upheld the fine against Tri- State. C. Port Angeles strike The Schiel Company had been awarded a plumbing and heating subcontract on a school construction job in Port Angeles . By March 9, 1953, most of the work on the subcontract had been completed, and all except General Foreman Murray , Foreman Fransen,3 and Journey- man Middleton had been laid off. These three-all members of Re- spondent-reported to the job that morning, but thereafter went on strike, even though there was no current labor dispute involving that particular j ob. The conflicting testimony regarding the strike follows : Manager Schiel testified that about 9 or 10 o'clock on the morning of March 9, Fransen and Middleton telephoned and reported that Respondent Business Agent Straight "had contacted and instructed them to withdraw from the job, along with the other workmen that were in our employment." 4 Schiel further testified that Fransen stated : "I was told by Mr. Straight that because of some union dispute that Cisco Construction was having east of the mountains that it would be necessary for us to pull off the job," and that Middleton "briefly told us the same thing." 5 According to Manager Cronkrite, who also testified about what was said in the telephone conversation : "Mr. Fransen told me that he was told by Local Union 32 [Wendell Straight] that it would be wise for them to leave the job because of some trouble . . . that Cisco had east of the mountains...." Cronkrite further testified in this connection that "Middleton said he would call from Port Angeles to Seattle and talk again to . . . his office, to see if for sure they had to leave the job." On the other hand, Business Agent Straight testified that about 9 or 10 o'clock, on Monday, March 9 , he received a telephone call either from Murray or from Middleton , who asked "what had been the deci- sion of the Washington [Joint] State Board of Negotiators and/or Arbitrators, insofar as the Schiel [Company] and Tri-State . . . were e we find from the record that there is reasonable cause to believe that Fransen, who was working with his tools on the day of the strike, under the supervision of General Fore. man Murray, did not possess any supervisory authority and, like Journeyman Middleton, was an "employee" as defined in the Act. 4 Schiel first contended that there were 4 or 5 journeymen on the job , but later testified that the only other person there was General Foreman Murray 5 Schiel testified that he and Cronkrite received the call on separate telephone extensions, and that a tape recording was made of most of the conversation. Neither the recording nor a transcript of it was offered as evidence 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerned, at their . . . meeting . . . on Friday previous to this day. . . . I told him that the State Board . . . had upheld the decision." Straight testified that this was the extent of the telephone conversation; that he did not at any time on or before March 9 suggest in any way that the men leave the job; that he did not know when he talked to Murray or Middleton that the men had left or were about to leave the job; and that he first learned about the work stoppage when Cronkrite or Schiel telephoned him later that day. Cronkrite's uncontradicted testimony is that when he called Straight at Respondent's office in Seattle, Washington, Straight told him that, if he wanted to find out something, he could come up to Seattle. It is also not disputed that Straight did not reply to Schiel's telegram sent on March 11, requesting the men to return, and stating that Re- spondent was in violation of the Washington State Agreement by withdrawing the men.6 The work was completed by other workmen, and the job was picketed by members of the Port Angeles Laborers Local, as "Unfair to Port Angeles Building Trades Council." The Respondent was a member of that Trades Council. D. Present status of dispute Cisco's contract at Richland was completed in May or June 1953, and the record does not reveal whether Cisco has contracted to lay any more concrete pipe at this Atomic Energy Commission project. There is evidence, however, that in November or December 1953, Cisco joined the Portland Chapter of the Associated General Contractors, called the A. G. C., which the record reveals is a party to the Plan for Settling Jurisdictional Disputes Nationally and Locally, adopted by the A. G. C. and the AFL Building Trades Department in 1949, as amend- ed in 1952. This Plan established the National Joint Board for the Settlement of Jurisdictional Disputes, called the Dunlop Board, and provides a procedure for the settling of jurisdictional disputes sub- mitted to it. Although such earlier jurisdictional agreements as the above-mentioned 1941 agreement between the Plumbers' and the La- borers' Internationals must be followed by the Dunlop Board in ren- dering its decisions, the jurisdictional Plan specifically provides that contractor members of A. G. C. are bound thereby only if they sign a stipulation to that effect. There is no evidence that Cisco has signed, or intends to sign, such a stipulation. E. Contentions of the parties None of the parties filed briefs, and nowhere are the positions clearly stated. In general, however, the Schiel Company contends The complaint was not submitted to the Joint State Board, which is constituted by the Washington State Agreement as the "arbitral body for the adjustment of all disputes which may arise between the parties to this agreement" for that Board's "final and con- clusive" determination. UNITED ASSOCIATION OF JOURNEYMEN, ETC. 787 that Respondent, violated Section 8 (b) (4) (D) by inducing or en- couraging a strike of the plumbers employed by the Schiel Company,: with an object of forcing or requiring Cisco and Tri-State to assign the concrete pipelaying work to members of Respondent's sister Local 598 rather than to other employees. The Respondent contends, as a basis for its motions to dismiss, made at the hearing, that no violation was proved and the matter is moot.? F. Applicability of the statute In a proceeding under Section 10 (k) of the Act, the Board is re- quired to find only that there is reasonable cause to believe that Sec- tion 8 (b) (4) (D) has been violated before proceeding with a deter- mination of the dispute out of which the unfair labor practice is al- leged to have arisen." Although Respondent's business agent, Straight, contrary to the testimony of Managers Cronkrite and Schiel, denied that he in any way suggested the work stoppage at Port Angeles, we find from all the circumstances, without definitively re- solving the conflicts in the testimony,9 that there is reasonable cause to, believe that the Respondent was responsible for the strike, and that a purpose of the strike was to force Cisco and Tri-State to' assign the concrete pipelaying work to the pipefitters, in violation of Section 8 (b) (4) (D) of the Act. Accordingly, we find that the dispute in question is properly before us for determination ill a proceeding under Section 10 (k). G. Merits of the dispute It is well established that an employer is free to make work assign- ments without being subjected to pressures proscribed by Section 8 (b) (4) (D), "unless such employer is failing to conform to an order or certification of the Board determining the bargaining representa- tive for employees performing such work." No claim is made, nor does it appear, that Cisco's assignment of the concrete pipelayiug^ work to laborers was in contravention of any Board order or certifi- cate. Furthermore, Cisco was not a party to the Washington State Agreement which awarded the disputed work to the pipefitters. Regarding the Respondent's contention that the case is now moot, there is no indication in the record that Plumbers Local 598 has aban- doned its claimed right, under the Washington State Agreement and the 1941 jurisdictional agreement, to an assignment of the concrete 7 For reasons stated hereinafter, we deny the Respondent's motions. Intervening Plumbers Local 598 moved to dismiss, on this record, Tri^State's charge against it in Case No 19-CB-241. We also deny this motion because, apart from other considerations, no complaint has issued 8International Longshoremen's & Warehousemen's Union, Local 48 (Upper Columbia River Towing Co.), 107 NLRB 94. 9 Ibid. 334811-55-vol. 109-51 788 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD water main pipelaying work at the A. E. C. project, or that the Re- spondent Local has changed its position. Furthermore, there is no in- dication in the record that, by joining the Associated General Contrac- tors, Cisco has bound itself to abide by the earlier jurisdictional awards. Therefore, although the particular jobs which gave rise to the present case have been completed, the underlying jurisdictional dispute has not been resolved." We accordingly find that the Respondent was not entitled to force or require Cisco and Tri-State to assign the disputed work to pipe- fitters to the exclusion of other employees. 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 determination of dispute, pursuant to Section 10 (k) of the Act : 1. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Can- ada, Local Union No. 32, AFL, is not and has not lawfully been en- titled to force or require Cisco Construction Company and Tri-State Plumbing and Heating Company to assign the laying of concrete re- inforced water-main pipe to journeyman pipefitters rather than to other employees. 2. Within ten (10) days from the date of this Decision and Deter- mination of Dispute, the aforesaid Local 32 shall notify the Regional Director for the Nineteenth Region, in writing, as to what steps it has taken to comply with the terms of this Decision and Determination of Dispute. MEMBER MURDOCK took no part in the consideration of the above Decision and Determination of Dispute. 10 The United Association of Journeymen, et at., Local 428, AFL ( Philadelphia Associa- tion), 108 NLRB 186. NEW YORK TELEPHONE Co. and COMMUNICATIONS WORKERS OF AMER- ICA, CIO, PETITIONER . Cases Nos. O-RC-6634 and 2-RM-588. August 11, 1954 Decision, Order, and Direction of Election Pursuant to a stipulation for certification upon consent election en- tered into on March 4, 1954, a mail ballot election was conducted under the direction and supervision of the Regional Director for the Second Region, among the employees in the stipulated unit. The result of this election was indecisive and a second all mail ballot election was 109 NLRB No. 116.