Int'l Brotherhood of Boilermakers, Local 154

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Industrial Workers Federation of Labor, Local 886, is a labor organization within the meaning of the Act. 3. The Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and ( 3) of the Act by: (a) Laying off Robert Martinez on December 10 and 18 , 1959, and January 12, 1960. (b) The Respondent has engaged in unfair labor practices within the meaning. of Section 8 (a)(1) of the Act by ( 1) interrogating an employee with respect to union activities, (2) threatening an employee with economic reprisal because of union ac- tivities, and (3 ) instituting inferior working conditions as a reprisal against its employees because of their support of the Union. [Recommendations omitted from publication.] International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 154, AFL-CIO; Inter- national Association of Bridge , Structural and Ornamental Iron Workers, Local 3, AFL-CIO; and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Plumbers Local 27, AFL-CIO [Cuyahoga Wrecking Company] and International Hod Carriers' Building and Common Laborers' Union of America, Housewreckers and Scrap Metal Yard Laborers, Local 178, AFL-CIO. Case No. 6-CB-659. December 13, 1960 DECISION AND ORDER On April 29, 1960, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermedi- ate Report attached hereto. Thereafter, the Respondents filed excep- tions to the Intermediate Report and the General Counsel and the Re- spondents filed briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations 1 of the Trial Examiner. 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 Re- 1 The Respondents have excepted to the Trial Examiner's broad recommended order which directs the Respondents to cease causing or attempting to cause "any other em- pl^oyer," in addition to Gulf and Cuyahoga , to discriminate against employees in violation of Section 8(a)(3) of the Act. In view of the fact that Respondents' unlawful activity was directed solely against Gulf and Cuyahoga , we find merit in Respondents ' exception in this regard and shall accordingly limit the scope of the order herein. 129 NLRB No. 113. INT'L BROTHERHOOD OF BOILERMAKERS, LOCAL 154 923 lations Board hereby orders that the Respondents International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forg- ers and Helpers, Local 154, AFL-CIO, the International Association of Bridge, Structural and Ornamental Iron Workers, Local 3, AFL- CIO, and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Plumbers Local 27, AFL-CIO, their officers, agents, succes- sors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause the Gulf Oil Corporation or the Cuyahoga Wrecking Company of Ohio to discriminate against any employees in violation of Section 8 (a) (3) of the National Labor Rela- tions Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. (b) In any like or related manner restraining or coercing employees in the exercise of their rights to self-organization, to form, join, or assist International Hod Carriers' Building and Common Laborers' Union of America, Housewreckers and Scrap Metal Yard Laborers, Local 178, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a) (3) and 8(f) of the Act, as modi- fied by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Jointly and severally make whole Charles Hudson, Robert Allen, Robert Baker, James Brown, Robert Mixon, Drexel Ramsey, and Leroy Harris for any loss of pay they may have suffered, by reason of discrimination against them, by payment to each of them of a sum of money equal to the amount of wages each would have earned but for his exclusion from employment at the Gulf Neville Island project on and after September 9, 1959, in the manner and to the extent set forth above in the section of the Intermediate Report entitled "The Remedy." (b) Post in conspicuous places in their usual membership meeting places and dispatching offices in Pittsburgh, Pennsylvania, including places where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Sixth Region shall, 2 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 " 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after being signed by a duly authorized representative of the Respond- ents, and each of them, be posted by such Respondents immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter. Reasonable steps 'shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Forthwith return four signed copies of said notice to the said Regional Director for posting by employers Gulf and Cuyahoga, they being willing, at their office or other headquarters at the construction project at Gulf Oil Corporation's Neville Island terminal for a period of 60 consecutive days. (d) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. MEMBER FANNING took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF BOILER- MAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, LOCAL 154, AFL-CIO ; INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 3, AFL-CIO ; AND UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF TIIE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND 'CANADA, PLUMBERS LOCAL 27, AFL-CIO 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 : WE WILL NOT cause or attempt to cause the Gulf Oil Corpo- ration, or Cuyahoga Wrecking Company of Ohio to discriminate against any employees in violation of Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. WE WILL NOT, in any like or related manner, restrain or coerce employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to join or assist the International Hod Carriers', Building and Common Laborers' Union of America, Housewreckers and Scrap Metal Yard Laborers, Local 178, AFL-CIO, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be effected by an agree- ment requiring membership in a labor organization as a con- INT'L BROTHERHOOD OF BOILERMAKERS , LOCAL 154 925 dition of employment, as authorized in Section 8(a) (3) and Section 8 (f) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE wiLL jointly and severally make whole Robert Allen, Robert Baker, James Brown, Leroy Harris, Charles Hudson, Robert Mixon, and Drexel Ramsey for any loss of pay they may have suffered by reason of discrimination against them. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS , LOCAL 154, AFL-CIO, Labor Organization. Dated----- ----------- By------------------------------------- (Representative ) ( Title) INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 3, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, PLUMBERS LOCAL 27, AFL-CIO, Labor Organization. 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 Charges having been filed and served; a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Rela- tions Board; and answers having been filed by the Respondent Boilermakers, Iron Workers, and Plumbers, a hearing involving allegations of unfair labor practices in violation of Section 8(b)(1)(A ) and (2) of the National Labor Relations Act, as amended, was held in Pittsburgh, Pennsylvania, on March 21 , 1960, before the duly designated Trial Examiner. All parties were represented by counsel , and were afforded full opportunity to present evidence pertinent to the issues . Briefs have been received . The motio" to dismiss, upon which ruling was reserved at the conclusion of the hearing, is dis- posed of 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 I. THE BUSINESS OF THE EMPLOYERS INVOLVED The Cuyahoga Wrecking Company of Ohio is an Ohio corporation . It is a parent organization and a multistate enterprise, owning seven subsidiary corporations, two 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Ohio, and one each in Michigan , New York, Pennsylvania, Maryland, and Florida. The parent company and its subsidiaries are engaged in the wrecking of buildings and other facilities and the preparation of building sites for new construe- lion in various States, including Pennsylvania . All such corporations are commonly owned and operated , and have a common centralized control of labor relations as well as common management and principal officers. During the year preceding the hearing Cuyahoga performed services, in various States of the United States , valued at more than $ 1,000,000 for companies which shipped or received goods, directly across State lines, valued at more than $50,000, respectively, during the same period. Gulf Oil Corporation is a Pennsylvania corporation , having its principal office in Pittsburgh, Pennsylvania. It maintains and operates plants and other facilities in various States of the United States where it is engaged in the production, sale, and distribution of gasoline and other petroleum products. During the year preceding the hearing Gulf received directly from outside the Commonwealth of Pennsylvania materials and goods valued at more than $ 1,000,000 and shipped directly to points outside the Commonwealth of Pennsylvania goods valued at more than $ 1,000,000 Cuyahoga and Gulf are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 154, AFL-CIO; International Association of Bridge, Structural and Ornamental Iron Workers , Local 3, AFL-CIO; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Plumbers Local 27, AFL-CIO; and International Hod Carriers', Building and Common Laborers ' Union of America, Housewreckers and Scrap Metal Yard Laborers, Local 178, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and issues At least since November 1958, Gulf Oil has been having rebuilt certain of its properties at Neville Island, in Pittsburgh . Various construction concerns have been performing work under contract with Gulf at this location . One portion of the work included the dismantlement or taking down of five boilers . Sometime before September 1959, Rust Engineering Company completed the taking down of two boilers, all that were included in its contract with Gulf. In June 1959, Gulf and Cuyahoga entered into a contract by terms of which the latter was to demolish the three remaining boilers. Cuyahoga began performance on September 9, 1959. To do the actual work, Cuyahoga employed a number of members of the Charging Union, which is not a member of the Pittsburgh Building Trades Council It ap- pears that in demolishing the two boilers under its contract with Gulf, Rust Engineering had employed members of unions which were affiliated with the said Trades Council. Out of this situation arose the chief issue of the complaint : whether certain busi- ness agents of the Respondents caused or attempted to cause, Gulf and Cuyahoga to deprive the latter 's employees of employment , in violation of Section 8(a)(3) of the Act because they were members of the Charging Union and not members of the Respondent Unions. B. The facts R. J. Taylor was Cuyahoga's foreman on this job . On September 8 Taylor tele- phoned to Larry Huff, business agent for the Charging Union, and asked him to have three specific individuals, whom he knew to be qualified for this particular work, sent over to the project the next morning.' Later, and apparently the same day, Taylor asked Huff to send along four additional men. The business agent in- structed three of them to report to the job the morning of September 10, and took the fourth to the jobsite himself on September 9.2 Shortly after Taylor and his three employees started work on September 9 an individual who identified himself as the Boilermaker 's steward came to the foreman 1 The three men called for by Taylor that day were Robert Mixon , James Brown, and -Robert Baker 2 These four were Leroy Harris, Robert Allen , Charles Hudson , and Drexel Ramsey INT'L BROTHERHOOD OF BOILERMAKERS, LOCAL 154 927 and demanded to know where his employees "came from." Taylor told him. The steward said he would call his business agent. The steward for the Ironworkers came to Taylor and in substance the same conversation took place. Taylor then had one of his employees call Huff, business agent for the Charging Union. Following the various calls there appeared at the project Business Agents Hoff- master of the Boilermakers, Conway of the Ironworkers, and Johns of the Plumbers, as well as Huff. A conference was held with Project Engineer Byron of Gulf, Superintendent Korwan of Rust Engineering, Foreman Taylor and the Pittsburgh representative of Cuyahoga. Hoffmaster served as spokesman for the three business agents of the Respondent Unions. Hoffmaster, in substance, told Byron that Cuyahoga would have to stop work on the job, and that the three boilers must be taken down by members of unions affiliated with the Building Trades-"or else," according to Byron's credible testi- mony. He further told Byron that he would give him 24 hours to decide as "to the fate of the boilers." 3 As a result of this threat of Hoffmaster, Byron instructed Cuyahoga's foreman to cease work and thereafter the contract between Gulf and Cuyahoga was can- celed. The seven actual and prospective employees of Cuyahoga were thus deprived of work for which they had been hired. C. Conclusions The foregoing findings establish , ,and it is found , that Business Agents Hoffmaster, Conway, and Johns, of the Respondent Unions, caused Gulf to cancel its contract with Cuyahoga and Cuyahoga to deprive seven employees of their rightful work, be- cause such employees were not members of a labor organization affiliated with the Trades Council. Although another section of the Act was therein involved, it appears to the Trial Examiner that the Board recently enunciated the governing principle for the instant case in Building Service Employees International Union, Local 32-1, AFL-CIO (Hewitt-Robins, Inc.) 127 NLRB 30, when it said: It is well established that an employer is free to make work assignments with- out being subject to strike pressure by a labor organization seeking the work for its members , unless the employer is thereby failing to conform to an order or certification of the Board determining the bargaining representative for employees performing said work or unless an employer is bound by an agree- ment to assign the work in dispute to the claiming union . . . As the Respond- ent is not the beneficiary of such order , certificate or contract claim to the disputed work, we find that it is not lawfully entitled. . to force or require Hewitt-Robins to reassign work being performed by its own employees to members of the Respondent. Here it is clear that neither the Trades Council nor its Respondent members had any agreement of any nature with Gulf, or with Cuyahoga. Assuming the verity of Hoffmaster's claim that there was some understanding with Rust Engineer- ing, the fact has no bearing upon the issues here. The issue here is confined strictly to Gulf's relationship , as the prime contractor, to Cuyahoga. As a witness , Hoffmaster admitted that he was plainly informed by representatives of both Rust Engineering and Gulf at the September 9 conference that the dis- mantlement of the three boilers was not under any contract between Rust and Gulf. Counsel for the respondent Unions would have it found that because Hoffmaster claimed at this meeting that he , Conway and Johns came as a committee from the Trades Council, and because the Council is not named as a Respondent, the complaint is fatally defective and must be dismissed . There is no merit to this contention , in the opinion of the Trial Examiner. He agrees with the contention of General Counsel in his brief: "the three Respondents herein cannot escape responsibility for the unlawful conduct of their Business Agents." In pursuing their goal, under duress of strike action, to deprive members of the Charging Union of their rightful employment , and obtain such employment for member unions of the Trades Council, any benefit deriving from such efforts reasonably would have been 3 The finding as to Hoffmaster 's threat is based mainly upon the testimony of Byron, in substance corroborated by Foreman Taylor and Superintendent Korwan Hoffmaster denied that he made any threat of work stoppage, and claimed that he and the other representatives went out there merely for information on behalf of the Trades Council This claim is not only improbable on its face, but lacks corroboration 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gained by the Respondent Unions. And this is so whether or not, as the Respond- ents urge, at least the Plumbers of the Trades Council probably would not have been called to perform such work. The Trial Examiner finds merit in General Counsel's claim that under the circum- stances described herein "each was the agent of the others," in this common venture. and Hoffmaster's threat to invoke strike action is attributable to and binding upon not only the Union he represents but also the other named Respondents. The Respondents claim that this case should have been brought under another section of the Act: Section 8(b)(4)(D), as a jurisdictional dispute. It appears unnecessary to appraise this contention. The Trial Examiner, as an agent of the Board, is concerned only with the complaint issued and served by the General Counsel, and only with the issues raised therein. In summary, the Trial Examiner concludes and finds that the Respondent Unions caused Gulf and Cuyahoga to discriminate against employees in violation of Section 8(a)(3) of the Act, thereby violating Section 8(b)(2) and (1)(A) of the Act .4 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Activities of the Respondent Unions set forth in section III, above, occurring in connection with operations of the employers concerned as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Unions have engaged in and are engaging in unfair labor practices, the Trial Examiner will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent Unions caused Employers Gulf and Cuyahoga unlawfully to discriminate against seven-named employees . It will there- fore be recommended that the Respondent Unions jointly and severally make whole these employees for any loss of pay they may have suffered, by reason of the discrimination against them, by payment to each of them of a sum of money equal to that which he would normally have earned but for his exclusion from employment at the above-described project on and after September 9, 1959.5 Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 154, AFL-CIO; International Association of Bridge, Structural and Ornamental Iron Workers, Local 3, AFL-CIO; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Plumbers Local 27, AFL-CIO; and International Hod Carriers', Building and Common Laborers' Union of America, Housewreckers and Scrap Metal Yard Laborers Local 178, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 2. By causing and attempting to cause employers Gulf and Cuyahoga to dis- criminate against employees in violation of Section 8(a) (3) of the Act, the Respond- ent Unions have engaged in and are engaging in unfair labor practices wthin the meaning of Section 8(b) (2) of the Act. 3. By restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent Unions have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 4 Northern California Chapter, The Associated General Contractors of America, Inc, et al. 119 NLRB 1026 , affd 266 F 2d 905 (CA D.C cert denied 361 U S 834 5 The Board's policy as to backpay, earnings , etc shall be observed as set out in F W. Woolworth Company, 90 NLRB 289 , at 291-294.