Local Union No. 38, Plumbers

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 38 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and Henry Maldonado . Case 20-CB-1535. April 17, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On January 6, 1967, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and Respondent filed a brief in opposition to the exceptions of the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions , the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. WEBSTER, Trial Examiner: This case with all parties represented was heard in San Francisco, California, on October 18 and 19, 1966, upon a complaint of the General Counsel and answer of Local Union No. 38 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called the Respondent. The complaint was issued on September 1, 1966, upon a charge filed on May 12, 1966. The complaint alleges that Respondent caused the discharge of the Charging Party on or about May 10, 1966, and attempted to cause his discharge prior thereto because of his lack of membership in the Respondent Union and because of his lack of activities in support of said Union, and that Respondent thereby violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, herein called the Act. Briefs have been filed by the Respondent, the Charging Party, and the General Counsel and have been carefully considered. On December 2, 1966, the General Counsel filed a motion to correct the transcript of hearing. No opposition thereto has been filed; the motion has been carefully considered and is granted. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Western Piping and Engineering Company, Inc., herein called the Employer, is a California corporation having an office and plant in San Francisco, California, where it is engaged in the manufacture and sale of custom tubular products. During the past year, the Employer had a gross volume of business in excess of $500,000. During the same period it purchased and received goods valued in excess of $50,000 directly from points outside the State of California and also sold and shipped goods valued in excess of $50,000 from its San Francisco plant directly to customers located outside the State of California. Western Piping and Engineering Company, Inc., is an employer within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues and Statement of Facts The principal issues in this case are (1) whether or not Maldonado was discriminatorily selected for layoff on May 11, 1966; and (2) if so, whether or not Respondent caused it, and if not, whether or not Respondent attempted to cause a discriminatory layoff of Maldonado. Respondent contends that the Employer selected Maldonado for layoff in an economic reduction and did so pursuant to contract seniority provisions and recognized practices. Maldonado was employed by Western Piping on April 23, 1965, as a welder. He was a member of Local No. 467 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, of San Mateo, California, but while employed by Western Piping in San Francisco he was affiliated with Respondent on a "travel card" basis. Western Piping Company has a contract with Respondent covering its approximately 38 employees in its shop number two and has had for many years. From August 24 to October 4, 1965, Respondent was on strike against the Employer. Respondent was critical of Maldonado for not doing what it believed to be his share of the picketing. Maldonado, who lives in San Mateo, California, was scheduled for picket duty on several occasions for which he did not appear. He was reprimanded on one occasion by Respondent's organizer, Henry McGrath, for not doing his share of the picketing. He picketed on only two occasions during the period of the strike, and his participation in picketing was less than that done by any other employee on strike. 164 NLRB No. 3 LOCAL UNION NO. 38 , PLUMBERS 21 During the period from November 1965 to June 1966, the Employer had occasions to lay off at different times a total of approximately 13 employees in shop number two due to lack of work. On each occasion, James Billeb, vice president for the Employer, called Respondent and advised a business representative of the layoff and gave him the name or names of employees to be laid off. Billeb was repeatedly reminded that selection of employees for layoff should be in accordance with the contract. . By the contract all employees are placed in three categories of seniority. In group I are those plumbers and pipefitters who have been employed by a party to the agreement for a period of at least 1,200 hours in each of the 2 prior years in the area covered by Respondent's agreement, being the San Francisco area. In group II are all plumbers and pipefitters who have worked at least 1,200 hours in each of the preceding 2 years in the Greater Bay Area, inclusive of Santa Clara, Alameda, Contra Costa, San Joaquin, Sacramento, and Solano Counties. In group III are all other qualified plumbers and pipefitters. Economic layoffs are to be made from among group III men first, then from group II, and finally from group I. By policy and practice, Respondent recognizes an exception to this order of layoff and permits the retention of employees who possess special skills or training where no senior employee possesses the same skills or training. Also, within a group, an employer may select the men for discharge without regard to their relative seniority. Maldonado was in group III at all times during his employment with Western Piping. In the fall of 1965, the Employer purchased a McKay cordless wire welding machine, a fully automatic welding machine, and Maldonado was trained by a McKay representative to operate this machine. This training covered a period of about 4 weeks, with the McKay representative spending all of his time at the shop during the first week, and checking Maldonado and the machine two times each week during the next 2 or 3 weeks. During the period from November 1965 to May 1966, Billeb talked with Respondent's Business Representatives Henry McGrath, Robert McCann, and Robert Costello regarding the layoffs. In November 1965 he talked about his impending layoff of two men with McGrath. McGrath told him that the men would have to be laid off according to the seniority groups as set forth in the contract. Billeb mentioned Maldonado and stated that he was the only man he had who could run the McKay machine. McGrath's reply was that anyone of the men in the shop with a little instruction could run it and, that when the time came, Maldonado would have to be laid off according to the contract. In December 1965 another employee was laid off and on this occasion Billeb and McGrath had substantially the same conversation. On each of these occasions, the men selected for layoff were group III employees. In January 1966, McCann replaced McGrath as the union representative servicing Western Piping. In February or March 1966, he was visiting the shop and was questioned by several of the employees about the periodic layoffs. He was asked why Maldonado had not been laid off and replied that other group III men were still working there. Later he asked Billeb why Maldonado was staying on, and Billeb stated that he operated the McKay wire machine. Billeb testified that he was aware of dissension among the employees concerning Maldonado and that he had noticed it since the strike in the fall of 1965. McCann had not seen the McKay machine, and he observed it in operation. Billeb stated that he would like to keep Maldonado as he had had special training on this machine. McCann replied that he could keep any man he wanted provided he laid off "by the book"; that Maldonado was a travel card man and that when the layoffs came, he would have to go before the Local 38 men. The layoffs prior to May 1966 were as follows: Nov. 30, 1965 two group III employees Dec. 14, 1965 one group III employee Dec. 28, 1965 one apprentice' Feb. 8, 1966 one group III employee Apr. 28, 1966 one apprentice (a group I employee quit on Apr. 27, 1966) On May 1, 1966, the only group III men remaining with Western Piping were Maldonado, R. Shadoan, and Fernando Rivera. Rivera transferred from Local 6 of the International Brotherhood of Boilermakers to Respondent in the fall of 1965.2 Along with several other employees, he had special skill in welding on stainless steel materials. He was trained and qualified for and was working on jobs for the Indian Government and an Italian concern, and Billeb testified that "I had to keep him." Maldonado was not certified with Western Piping as a stainless steel welder. On May 11, 1966, another layoff occurred. Maldonado Shadoan, and W. Benninger, a group I man and the shop steward, were laid off. Billeb called Respondent on May 9 about the impending layoff. He had selected the shop steward for layoff because of a drinking problem. Because of his position as job steward and the contract provision giving special seniority consideration to job stewards, he anticipated that his selection of Benninger for layoff might present a problem. He talked with Costello and told him that he was planning to lay off Shop Steward Benninger, J. Taylor (a group I man), Shadoan (a group III man), and "to avoid any trouble, we are also laying off Maldonado." Costello acquiesced in or agreed to the layoffs. Costello knew of and did not contest the cause for the job steward's layoff, but suggested that Billeb send Respondent a telegram on the matter. Billeb told Costello that if anything came up for the McKay machine, he would want to rehire Maldonado. Costello replied that the Union could supply him with men that could run this machine. Billeb sent the telegram as requested and on May 11, laid off Benninger, Shadoan, and Maldonado. Taylor's layoff did not come about as he was on vacation at the time. When he returned to work, the Employer had work for him which continued his employment until July 1966. At the time of his layoff, Maldonado had just completed work on a job for a concern in Alaska. He testified that the work had become slow and that he was standing around a lot of the time. Billeb testified that he had no work for the McKay automatic welding machine at the time, but had hoped to have work for this machine soon thereafter. The expected job did not materialize and the McKay machine remained idle. If this job had developed, Billeb had I Apprentics are to be laid off or employed to maintain a ratio of one apprentice to four plumbers or pipefitters 2 In addition to members of Respondent and travel card men from other locals of the United Association, the Employer had employed in its plant some welders who were members of Local 6 of the Boilermakers These men were employed at a time when Respondent could not furnish sufficient welders, and they were cleared through Respondent They were all in seniority group III All had applied for membership in Respondent and were in the process of paying their initiation fees They were, therefore, due to be laid off before members of Respondent, who were all in seniority group I This was told to Billeb in conversations with representatives of Respondent regarding impending layoffs 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD planned to call Respondent and ask that Maldonado be dispatched. Billeb told Maldonado at his termination that he was sorry to see him go and would like to have kept him but could not lay off Benninger and Taylor, group I men, and keep him, a group III man, without getting into trouble with the Union; that if Maldonado had been in Local 38, he did not think there would have been any problem. Maldonado's foreman, Sorenson, told him that the Employer had no choice; that the out-of-town members of the Union had to go first, which, in effect, was a statement that the seniority ratings of the employees, as set forth in the contract, had to govern. Billeb was well pleased with Maldonado as an employee and would like to have retained him in his employ. He testified that he could have found work for him to do, but to do so, he would have had to let a group I man go. Rivera, a group III man, was on a special assignment and his continued employment was needed. Benninger, Taylor, and Maldonado were not, or had not, qualified on the stainless steel work being performed by Rivera and other employees. Billeb testified that the Employer kept only the very top men and that they were sweeping floors most of the time. Billeb also testified that if he had kept Maldonado, a group III man, and had laid off Benninger, a group I man and also the job steward, he did not know what the Union might have done. Prior to calling Costello on May 9, he had decided that Maldonado was to be included in the layoff. Costello made no mention of Maldonado in this conversation.3 In June 1966 the Employer was in need of an additional employee as a "wire welder, semi-automatic" (not the McKay machine), and a request was made of Respondent for such employee. J. Jones, a group III man and number 38 on Respondent's out-of-work list, was dispatched, as apparently no man higher on the list was both available and qualified. B. Conclusions The General Counsel contends that Respondent resented the fact that Maldonado did not "do his share" of the picketing during the fall strike against Western Piping, and that one of the ways Respondent manifested this resentment was by refusing him membership in that Union while accepting other travel card men as members;4 that Respondent had motive for causing the Employer to discriminate against him and that this coupled with 9 Billeb's two affidavits given to Board agents are a bit ambiguous and contradictory on his conversation with Costello, and he acknowledged this in his testimony Although his affidavits are inconsistent within themselves , they do contain statements consistent with his testimony (although inconsistent with other statements in the affidavits) to the eftect that he had decided to lay off Maldonado before he called Costello Respondent's statements and actions evidence Respondent's violation of Section 8(b)(1)(A) and (2) of the Act. Respondent readily admits that it did not care for Maldonado and did not want him as a member; that he "did not serve his time on the picket line"; and that "motive" for causing his termination existed, but contends that the illegal act was not committed. During the course of the layoffs, Billeb was reminded repeatedly of the seniority provisions of the contract and of Maldonado's seniority position as a group III man. But at no time was Billeb asked or urged to lay Maldonado off prematurely or out of order. Billeb was certainly aware from the attitude of other employees and the reference to Maldonado's seniority position by the union representatives that he was a persona non grata, and could certainly deduce that the Union and its members would be pleased when his employment with Western Piping ended. But Respondent's conduct on the matter was a "reminding" or an "urging" that the Employer adhere to the rules and recognized practices on the layoffs. It would appear to me that had he retained Maldonado under the circumstances that existed, as he would have liked to have done, he would have run the risk of violating the applica- ble seniority provisions of the contract and recognized practices. There was no work for his machine, the McKay automatic welding machine; if there had been, then there would be a basis for his retention in accordance with the existing practice. Except for Rivera, Maldonado and Shadoan were the last group III employees to be laid off. I, therefore, find that there is insufficient evidence that there has been any discrimination against Maldonado by his layoff of May 11, or that Respondent by its statement to the Employer, urging that the seniority rules and practices be followed as to Maldonado, did thereby cause or attempted to cause a discrimination against him. CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not violated Section 8 (b)(1)(A) or (2) of the Act as alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint be dismissed. " Maldonado testified that he had been told two employees, Neumair and D Jones, from another local of the Plumbers Union, were accepted as members of Respondent Employees from Local 6 of the Boilermakers Union were in the process of paying initiation fees to Respondent when the layoffs occurred, and Rivera became a member