Local 35 of the Plumbing & Pipe Fitting Industry

Local 35, United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the U.S. and Canada, AFL-CIO and Richard E . Buettner and Delbert Hunter. Case. No. 14-CD-86. November 3, 1959 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10 (k) of the Act, which pro- vides that "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 determine the dispute out of which such unfair labor practice shall have arisen. . . ." On May 1 and 8, 1959, Richard E. Buettner, contractor, filed charges and amended charges with the Regional Director for the Fourteenth Region alleging that Local 35, United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the U.S. and Canada, AFL-CIO, herein called Local 35, had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(b) (4) (D) of the Act. It was charged in substance that Local 35 had induced and encouraged employees of Richard E. Buettner, contractor, and the employees of Delbert Hunter, general contractor, to engage in a strike or a concerted refusal to work for the purpose of forcing or requiring Delbert Hunter to assign the work of laying water mains to members of Local 35 rather than to Hunter's own employees. Thereafter, pursuant to Section 10(k) of the Act and Sections 102.79 and 102.80 of the Board's Rules and Regulations, Series 7, the Regional Director investigated the charges and provided for a hearing upon due notice to all parties. The hearing was held before William G. Haynes, hearing officer, on August 5, 1959, at St. Louis, Missouri. All the parties appeared at the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to adduce new evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. . 125 NLRB No. 2. 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. Delbert Hunter, general contractor, is engaged in commerce within the meaning of the Act.. II. Local 35 is a labor organization within the meaning of the Act. III. The dispute : A. The facts On August 7, 1958, Delbert Hunter was awarded by the city of Eureka, Missouri, a contract for the construction of a water distribu- tion system in the city. Attached to this contract there was a wage scale set up by the State Labor and Industrial Commission for dif- ferent types of labor, including a scale of wages for plumbers. It is not clear from the record whether this schedule was made part of the contract binding on the contractor, or merely a recommended scale of wages. Thereafter, Hunter subcontracted various parts of the project, reserving for himself the installation of water mains and the valves. Late in September and before the actual installation of the water mains began, Hunter was approached by Louis C. Justi and Russell Graham, business representatives of Local 35. They told Hunter that the work of laying water mains was within the jurisdic- tion of Local 35 and that they would like to obtain that work for plumbers who were members of their local. Hunter said that he did not need plumbers as the water mains specified by the contract were transite pipes, made of asphalt and concrete, rather than cast iron pipes. Justi called Hunter's attention to the disadvantages of having a nonunion job, and to the fact that all contractors who are engaged in this type of work in the area employ union plumbers and pay them the union wage of $3.80 an hour. Justi also stated that he did not see how Hunter could possibly lay the water mains on the project with two men when under the union bylaws it would require five. Hunter was also told that, if the union plumbers were employed, they could perform no other work, but would move the pipe 10 feet from its resting place, place it into the ditch, align it, and make the joints. The meeting broke up without the parties coming to any agreement. Hunter did not tell the union representatives at that time that he intended' to use nonplumbers for laying the mains. Hunter began the project on October 1. Of the seven employees employed by Hunter, two were 'to be engaged in laying water pipes, the work claimed by Local 35. None of the seven men, to Hunter's knowledge, was a member of any, union, nor were any of them paid at the rate specified at the scale set out. by the State Industrial Com- mission. In an attempt to secure the work of laying water mains for their members, the representatives of Local 35 met with Hunter on LOCAL 3 5 OF . THE PLUMBING & PIPE FITTING INDUSTRY 3 a number of occasions . Justi told Hunter that the Plumbers' union always laid water pipes in the area, that this job was within its jurisdiction, that he did not care what the Laborers , with whom Hunter had previously met, said or did about it, and that the job was going to be a Plumbers' job. Hunter on the other hand reiterated his position that the laying of transite pipes did not require the plumbers' skill and suggested, as a possible solution of the dispute , that Local 35 organize his employees who were laying the pipes, and that, if they joined the local, he would pay them the union rate. Justi re- fused the suggestion. He told Hunter that the men were not licensed plumbers, were not qualified for admission into the union , and that the local had unemployed plumbers who would have to be placed first on the job. These meetings again produced no agreement . At some- time during their negotations with Hunter, the local's representatives also took the position that, even if the work in dispute was done by Hunter's own employees, they would have to be ,paid at the rates set out by the State Labor and Industrial Relations Commission. In November, Justi and Graham appeared on the project with two members of Local 35, whom they said they brought to put to work. Hunter replied that he had a full contingent of employees and that he did not need anyone at this particular time. According to Hunter, Justi then said that they would picket the job and attempt to get the work halted unless these men were put to work. Hunter refused. Justi admitted bringing the two men to the job site and instructing them to start picketing, but denied that he had made a demand that the men be put to work . Justi also testified that the local placed the pickets only after it was learned that Hunter was not going to hire their people, or pay the union rate to his own employees , and that he told one of the pickets that they were placing pickets because the contractor was not paying the prevailing rate of pay , or plumbers wages, and that he did not hire plumbers . Asked about the purpose of the picketing, Justi testified that it was "to put plumbers on the job so that [Hunter] would pay the prevailing rate of pay and he would not do it until plumbers were placed on the job...." The picketing began on November 4, 1958, at various locations wherever the work of laying water mains was being performed, and continued until June 4, 1959, when it was restrained by a court order. The pickets carried a sign reading : "Delbert Hunter Unfair to Plumbers Local 35." As a result of the picketing, employees of some of the subcontractors of the Company refused to cross the picket line established by Local 35 and stopped doing work on the project. At the time of the hearing, the water distribution system was 90 percent completed, with all the water mains in their place in the ground. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was stipulated by and between Local 35 and the Company that there was no contract in existence between them at the time the dis- pute arose, and that the union was not the certified bargaining repre- sentative of the employees performing the work in dispute. B. Contentions of the parties The Company contends that the picketing of the project was for the purpose of forcing the Company to reassign the work of in- stalling the water mains, namely moving and lowering the pipes in the ditches, aligning them, and joining the pipes, which its em- ployees were performing, to members of Local 35. Local 35 contends that the picketing was for the purpose of forc- ing the employer to pay the wage rates established by the Missouri Labor and Industrial Relations Commission.' It also contends that the question is moot inasmuch as work in dispute is completed. C. Applicability of the Statute In the present proceeding under Section 10(k) of the Act, the Board is required to find that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated before proceeding with a determination of the dispute out of which the alleged unfair labor practice has arisen. Local 35, as stated above, contends that the picketing of the em- ployer's project was for the purpose of forcing the employer to pay the wage scale established by the Labor and Industrial Relations Com- mission of the State of Missouri rather than for the purpose of com- pelling the employer to assign the disputed work to members of Local. 35. The record, however, does not support this contention. Repre- sentatives of Local 35, Justi and Graham, admitted that Local 35 claimed jurisdiction over the installation of water mains in the area to the exclusion of any other union. They also admitted that the purpose of their conferences with the employee was to obtain the dis- puted work for plumbers, members of their local. Justi also admitted that the picketing followed their final realization that Hunter was not going to hire members of Local 35. The Union's contention is furthermore inconsistent with the legend on the picket sign proclaim- ing that Hunter "is unfair to Plumbers Local 35." It said nothing about his failure to pay the prevailing wage established by the Com- mission to his nonunion employees. Assuming, however, that the purpose of the picketing at the site was twofold, one to force the 1 In April 1959, upon a complaint initiated by Local 35 that Hunter was not paying the prevailing wages on his project, a hearing was held before the State Labor and Indus- trial Relations Commission . The record does not reveal what was the outcome of that proceeding, nor does Local 35 rely upon a determination of the commission in that matter as a defense in the instant case. LOCAL 35 OF THE PLUMBING & PIPE FITTING INDUSTRY 5 Employer to assign work, which was then being performed by his own employees, to members of Local 35, an objective proscribed by Section 8(b) (4) (D), and the other objective to force the Employer to pay prevailing wages to his employees, the picketing would never- theless come within the proscription of Section 8(b) (4) (D)2 Upon all the evidence, we are satisfied and find that there is reasonable cause to believe that Local 35 by picketing the Employer's project violated Section 8(b) (4) (D). We further find that the dispute involved in this proceeding is properly before us for determination under Section 10(k) of the Act. 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 the employer thereby is failing to conform to an order or certification of the Board, or unless the employer is bound by an agreement to assign the disputed work to the claiming union s Local 35, however, contends that inasmuch as the Employer had completed his project in Eureka, the case is moot. While it is true that the Employer had completed the installation of the water mains and the whole project is 99 percent completed, the record indicates that Local 35 has not abandoned its claim that the laying of water mains in the St. Louis area is work within the jurisdiction of Local 35 to the exclusion of Laborers or any other union. A similar claim that the installation of water mains was work which historically and right- fully belonged to the union was made by a sister local of Plumbers and Pipefitters in a St. Louis area as far back as 1956.4 Thus, despite the cessation of the picketing pursuant to the court restraining order and the completion of the job the underlying jurisdictional dispute has not been resolved. Moreover, the Company which is engaged in general contracting may have more construction jobs of similar nature to perform. In light of such showing we find that the matter is not moot and that there is real danger that the jurisdictional dispute over the installation of water mains will continue to recur in the area 5 We find, accordingly, that Local 35 was not lawfully entitled to require Delbert Hunter to assign the work of installing water mains in the city of Eureka, Missouri, to members of Local 35 rather than to his own employees. 2 United Brotherhood of Carpenters, et al. (Markwell & Hartz Contractors), 120 NLRB 610. 31nternational Longshoremen's and Warehousemen's Union Local No. 16, C.I.O. (Juneau Spruce Corporation ), 82 NLRB 650. 4Local 562, etc., United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, etc. (St. Louis County Water Company), 116 NLRB 1111. 8 United Brotherhood of Carpenters et at . ( Wendnagel & Company), 116 NLRB 1063; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, etc. (Philadelphia Association), 108 NLRB 186. 535828-60-vol. 125-2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and the entire record in this case, the Board makes the following determination of dispute pursuant to Section 10 (k) of the Act : 1. Local 35, United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Can- ada, AFL-CIO, and its agents are not and have not been lawfully entitled to force or require Delbert Hunter or any employer in St. Louis County, State of Missouri, to assign the work of installing water mains to its members rather than to employees of Delbert Hunter or any other employer. 2. Said Local 35 shall within 10 days from the date of this Decision and Determination notify, in writing, the Regional Director for the Fourteenth Region of the National Labor Relations Board, whether or not it accepts the Board's determination of this dispute, and whether or not it will refrain from forcing or requiring Delbert Hunter or any employer in St. Louis County, State of Missouri, by means proscribed by Section 8(b) (4) (D) of the Act, to assign the work in dispute to members of Local 35 rather than to employees of Delbert Hunter or any other employer. Whittaker Gyro Division of Telecomputing Corporation and In- ternational Union, United Automobile, Aircraft, & Agricul- tural Implement Workers of America, AFL-CIO, Petitioner. Case No. 21-RC-5835. November 4, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Louis S. Eberhardt, hearing officer. The hearing officer's rulings made at the hearing 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 [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in this case,' the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 1 Pursuant to the stipulation of the parties , the transcripts and exhibits in Cases Nos. 21-RC-5344 and 21-RC-5494 are incorporated as part of the record in the instant case. The Board has also considered herein the briefs and other documents heretofore filed in Cases Nos. 21-RC-5344 and 21-RC-5494. 125 NLRB No. 3.