Local 373, United Assn. of Journeymen, Etc.

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for reinstatement of Broadway to his former or substantially equivalent position (The Chase National Bank of the City of New York, San Juan , Puerto Rico, Branch, 65 NLRB 827 , 829), without prejudice to seniority and other rights and privileges, and for making him whole for any pay losses by reason of the discrimination , within the principles enunciated in F. W. Woolworth Company, 90 NLRB 289, and N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 3,44. Upon the findings above and the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. By discharging Broadway because of his membership and activity in the Union, Respondent discouraged membership therein by discriminating in respect to the hire and tenure of employees , thereby engaging in an unfair labor practice within the meaning of Section 8(a) (3) of the Act. 2. By ,the above, and by the conduct of Alva Ray, a supervisor , in interrogating an employee concerning his affiliation and sympathy with the Union, in the manner, circumstances , and context in which the same occurred , Respondent interfered with, restrained , and coerced employees in the exercise of their rights as guaranteed by Section 7 thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of ,theAct. 3. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. By the conversation of the general superintendent with Matthew Maxie as heretofore found, Respondent did not engage in an unfair labor practice within the meaning of Section 8 (a) (1) of the Act. [Recommendations omitted from publication.] Local 373, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and Carleton Brothers Company. Case No. 2-CD- 219. June 15, 1962 DECISION AND ORDER QUASHING NOTICE OF HEARING STATEMENT OF TIIE CASE This is a. proceeding under Section 10(k) of the Act following a charge filed by Carleton Brothers Company, herein called Carleton, against Local 373, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, herein called Plumbers or the Respondent, alleging that the Plumbers unlawfully coerced Carleton and certain other em- ployers with the object of forcing Carleton to change work assign- ments from the employees of Orange and Rockland Utilities, Inc., herein called Orange and Rockland, to employees of Thomas J. Kemp- ton, Jr., herein called Kempton. A duly scheduled hearing was held before James J. Graham, hearing officer, on January 23, 24, and 31, 1962, at New City, New York. 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 prej- 137 NLRB No. 80. LOCAL 373, UNITED ASSN. OF JOURNEYMEN, ETC. 629 udicial error and are hereby affirmed. A brief filed by the Respond- ent has been considered. Upon the entire record, the Board makes the following : FINDINGS OF FACT 1. Carleton Brothers Company, is a general contractor, and Thomas J. Kempton, Jr., is a plumbing contractor. Both Carleton and Kempton are engaged in the construction industry in the State of New York and each of them annually receives supplies valued in excess of $50,000 directly from out-of-state sources. We find that Carleton and Kempton are engaged in commerce within the meaning of the Act. 2. Plumbers and Locals 1566 and 1567 of the International Brother- hood of Electrical Workers, AFL-CIO, herein called IBEW, are labor organizations within the meaning of the Act. 3. The dispute. The Work in Dispute The dispute, which gave rise to this proceeding, arose at the site of a new high school being constructed in the town of Orangetown, New York. The building was being erected under authority of the Union Free School District No. 8, Pearl River, town of Orangetown, Rock- land County, herein called the School District. A number of con- struction contractors were engaged by the School District, among them Carleton, which performed certain general contracting work, and Kempton, who contracted to perform certain plumbing work. Included in Kempton's contract was plumbing and piping work from within the building leading to certain meters. For work beyond the meter locations, the following specifications issued by the School Dis- trict applied to Kempton's contract : a. This contractor shall (unless shown otherwise) terminate the low pressure house gas piping at the meter location, make meter loop and concrete support pad (not less than 6" above finish grade). b. This contractor shall make arrangements for the local gas company to extend medium pressure gas service to meter location and pay all necessary costs in connection therewith. While his work was in progress, and shortly before July 17, 1961, Kempton, pursuant to subparagraph (b) of the specifications, advised Strobaeus, an official of the School District, to make application to Orange and Rockland, the public utility local gas company, for in- stallation and service of the necessary gas main. The utility company was then to extend the necessary gas piping from its mains to the building meters. On July 17, a foreman and a crew of four were 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sent by Orange and Rockland to the jobsite to do the required piping installation. It is this work-"the installation of piping and other necessary work to connect curb boxes of the utility distribution mains to the meters and regulators in building under construction"-that was in dispute here. The Claim Advanced by the Respondent and the Picketing Kempton's employees are represented by the Respondent Local 373. He is a member of the Master Plumbers Association of Rock- land County and Vicinity, and on March 15, 1955, the Respondent was certified by the Board as collective-bargaining representative of the following unit: "All journeymen and apprentice plumbers and steamfitters employed by employer members of the Master Plumber Association of Rockland County and Vicinity." At all pertinent times there was a contract in effect, binding upon Kempton also, covering these employees. The particular language upon which the Respond- ent rests to support the claim which we are here examining reads : ... in order to avoid jurisdictional controversies with other trades . . . [the Plumbers] will insist that the . . . [employers] procure and embrace in their job contracts and specifications all of the piping fixtures, appurtenances and appliances that are necessary to make a complete plumbing and/or pipefitting in- stallation and is hereby embraced in the following United Asso- ciation jurisdiction of work. . . . 24. All piping for artificial gases, natural gases, and holders and equipment for same, chemicals, minerals and by- products and refining of same for any and all purposes. The employees of Orange and Rockland, to whom the disputed work was assigned by that utility company, are represented by IBEW Lo- cals 1566 and 1567 pursuant to a Board certification issued directly for that unit on July 15,1953. When the utility company workmen arrived at the jobsite on July 17 to install the pipeline from the mains to the meters, Palmer, busi- ness agent of the Respondent, told Kempton that if Orange and Rock- land installed the gas service, his, Kempton's, men would have to leave the job. Palmer insisted that all the plumbing work on the site belonged to his union and that Kempton should assign it to the Re- spondent's members. Kempton did nothing to satisfy Palmer. Kempton's employees, about five in all, thereupon left their jobs about noon and did not return until July 19. In the afternoon of July 17, about two to four pickets, one of them Respondent's shop steward (a Kempton employee), appeared with printed signs reflecting in the caption : "This is no strike. UNFAIR to union labor. Help us win." LOCAL 373, UNITED ASSN. OF JOURNEYMEN, ETC. 631 One entrance to the site was picketed on July 17 and both entrances the next day. The pickets caused three trucks loaded with supplies for Carleton to delay entering the site for several hours. On July 18, all of the employees of the various contractors at the site, except the Orange and Rockland crew, refused to cross the picket line. The picketing ended on July 19 and the work was completed by the Orange and Rockland employees without further incident. The Contentions of the Parties The Respondent argues that no jurisdictional dispute within the meaning of Sections 8(b) (4) (D) and 10(k) of the Act is presented in this record and that therefore the notice of hearing must be quashed. More precisely, it contends that at no time did it seek to force Carleton, which filed the charge, to change assignments from one class of em- ployees to another. Instead, according to the Respondent, the dispute here turns upon the propriety or impropriety of the contractual ar- rangements entered into by Kempton and the School District with re- spect to the plumbing work. To prove that this is all that the dispute involves, the Respondent points to its contract with Kempton, set out in pertinent part above, which provides that it could "insist that the [employers, including Kempton] . . . procure and embrace in their contracts . . . all of the piping fixtures, appurtenances and appliances that are necessary to make a complete plumbing . . . installation." Respondent asserts that this contract created an obligation-whether or not enforceable under other provisions of law-upon Kempton not to accept the type of construction contract he accepted in this instance. Respondent argues that it was this contractual restriction upon Kemp- ton's business operations which Respondent sought to enforce by its demand upon Kempton and its subsequent strike action. It is for this reason, the Respondent asserts, that it approached only Kempton on the jobsite and not any other party. Orange and Rockland and the IBEW, which represent its em- ployees, contend that there is a jurisdictional dispute within the mean- ing of the Act, but they do not explicate any exact theory of induce- ment or coercion by the Respondent aimed at forcing any particular employer to change work assignments. They also request that in any event the Board rule that the Respondent is not entitled to the work. Carleton, which initiated the proceeding and is the sole employer whose work assignments Respondent is charged with having attempted to change, expressed no clear position on the record. Likewise, Kemp- ton, upon whom a demand was made, advanced no definite contentions. Applicability of the Statute According to the allegation set out in the charge the Respondent is accused of causing a strike which had an object of forcing Carleton, 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one of the contractors on the jobsite, to change the assignment of the disputed work from Orange and Rockland to Kempton. The record does not support the charge. While the record does show a disagreement between Respondent and Kempton regarding Kempton's alleged breach of their collective- bargaining agreement, this is a matter outside the scope of the present proceeding. The only jurisdictional dispute, if any, which is sug- gested by this record relates to the assignment of the work in question to employees of Orange and Rockland represented by the IBEW rather than to plumbers represented by the Respondent. However, this last question was not the issue framed by the charge, it was not liti- gated at the hearing, and it therefore cannot constitute the essential element of the case against the Respondent.' Accordingly, as the record does not show a dispute within the mean- ing of Section 10(k) of the Act between Respondent and Carleton, the only issue which the formal documents called upon the Respondent to litigate, we shall grant its motion to quash the notice of hearing. [The Board quashed the notice of hearing.] MEMBER RODGERS took no part in the consideration of the above Decision and Order Quashing Notice of Hearing. 'Local 4 50, International Union of Operating Engineers, AFL-CIO ( The Austin Com- pany), 119 NLRB 1424. Airesearch Manufacturing Company of Arizona, a Division of the Garrett Corporation ' and International Union of Electri- cal, Radio and Machine Workers, AFL-CIO, Petitioner. Case No. 98-RC-957. June 15, 1962 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 J. W. Cherry, Jr., 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 National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. I The name of the Employer appears as corrected at the hearing 137 NLRB No. 84.