Local 98, Plumbers, AFL-CIO

478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, AFL-CIO and Parks Installation Company and Local 7-389, Oil, Chemical and Atomic Workers International Union, AFL-CIO. Case 7-CD-201 June 17, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS Upon a charge filed on April 29, 1968, and an amended charge filed on May 14, 1968, by Parks Installation Company, herein called the Employer, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 7, issued a complaint dated August 12, 1969, against Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, AFL-CIO, herein called the Respondent, alleging that the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(D) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Co- pies of the charges and the complaint with notice of hearing were duly served on the parties. Thereafter, the Respondent filed an answer in which, inter alia, it denied, the commission of any unfair labor prac- tices. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion with this case to a three-member panel. With respect to the unfair labor practices, the complaint alleged that: pursuant to Section 10(k) of the Act, the Board heard and made a determina- tion of dispute out of which the charged unfair labor practices arose; the employees of the Em- ployer, who are currently represented by Local 7-389, Oil, Chemical and Atomic Workers Interna- tional Union, AFL-CIO, herein called OCAW, are entitled to perform the installation of fuel, lubricat- ing oil, pneumatic piping systems, including the setting and placement of associated storage tanks, piping systems, air compressors, pneumatic lifts and pumps, at gasoline service stations located within the Respondent's geographic jurisdiction; the Respondent is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to award the above work to its mem- bers or employees it represents; the Respondent has not complied with the Board's Decision and Deter- mination of Dispute (177 NLRB 879); the Respon- dent since sometime in February 1968, and at all times thereafter, by means proscribed by Section 8(b)(4)(D) has engaged in conduct an object of which was to force or require the Employer to as- sign the disputed work to employees who are mem- bers of Respondent rather than to employees who are represented by the OCAW; and by such con- duct the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(D) and Section 2(6) and (7) of the Act. On October 7, 1969, the parties filed with the Board under the provisions of Section 102.50 of the Board's Rules and Regulations, Series 8, as amended, a joint motion that the proceedings be transferred to the Board. The motion contains a stipulation that the charge, amended charge, com- plaint, answer, order postponing hearing indefinite- ly dated September 10, 1968, and the entire record made at the hearing held pursuant to Section 10(k) of the Act, as evidenced by the official transcript of the hearing held on August 15, 19, and 28, 1968, including all exhibits, constitutes the entire record in this case, and that no further oral testimony is necessary or desired by any of the parties. The parties also waived any further hearings, the mak- ing of findings of fact and conclusions of law by a Trial Examiner, the issuance of a Trial Examiner's Decision, and submitted the case for findings of fact, conclusions of law, and an order directly by the Board. On October 8, 1969, the Board granted the motion and this proceeding was duly trans- ferred to and continued before the Board. Thereafter, the General Counsel filed a memoran- dum with the Board. Upon the basis of the aforesaid stipulation, the General Counsel's memorandum, and the entire record in this case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Parks Installation Company is a Michigan cor- poration engaged in the business of installing tanks, air piping, hydraulic lifts, and service station equip- ment in gasoline service stations. During the fiscal year, ending November 30, 1967, its gross revenue was approximately $500,000. During the same period of time, its gross revenue from sales and per- formance of services to Mobil Oil Corporation ex- ceeded $50,000. We find that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. Upon the basis of the facts developed at the 10(k) proceeding and the facts alleged in the complaint and admitted by the Respondent, we find that Bor- man Food Stores, Inc., Mobil Oil Corporation, 183 NLRB No. 57 LOCAL 98, PLUMBERS , AFL-CIO 479 Smith & Andrews Construction Company , McFar- land-Dorman Plumbing & Heating , Inc., Coster- Kitti Company , and Trevarrow , Inc., are also em- ployers engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Respondent and the OCAW are labor organizations within the meaning of Section 2(5) of the Act. III. THE RESPONDENT 'S UNFAIR LABOR PRACTICES In its Decision and Determination of Dispute, the Board determined that the Respondent was not en- titled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to as- sign the work of the installation of fuel, lubricating oil, pneumatic piping systems, including the setting and placement of associated tanks, piping systems, air compressors , pneumatic lifts and pumps, at gasoline stations located within its geographic ju- risdiction to its members or employees it represents . The Board directed the Respondent to notify the Regional Director in writing with respect to its intention to comply with the Board's deter- mination . In its answer to the complaint, the Respondent admits that it has not signified an in- tent to comply and indicates that it does not intend to comply. Section 10(k) of the Act requires that, if the Respondent has complied with the Board's deter- mination , the 8(b)(4)(D) charge must be dismissed. As the Respondent has not complied with the 10(k) determination, we turn now to the merits of the complaint which, as we have in- dicated, is concerned with whether the Respondent has engaged in unfair labor practices in violation of Section 8(b)(4)(D). The evidence in the 10(k) proceeding is clear and uncontradicted that the Respondent engaged in unlawful inducement and threats with the objective of forcing the Employer to assign the disputed work to its members rather than to the Employer's em- ployees who are represented by the OCAW. Thus, in February 1968, Respondent's agent, Joseph Sposito, claimed for the Respondent the work being performed by the Employer's employees at the Bor- man Food Stores, Inc., warehouse project, herein called Borman jobsite, and threatened the Em- ployer's general foreman with a picket line if the Employer's employees continued to perform this work. There was a resulting work stoppage. Thereafter, during the latter part of April 1968, Respondent's agent, Jack Whitson, on two occa- sions, caused the Employer to stop work at the Bor- man jobsite. On the first occasion, Whitson claimed for the Respondent the work being performed there by the Employer's employees and threatened the Employer with a picket line and a shutdown of the whole job if the Employer's employees con- tinued to work. As a result of this threat, a representative of the Borman Food Stores, Inc., or- dered the Employer's general foreman and its em- ployees off the job. On the second occasion, a day or two later, the Employer's general foreman and employees returned to the Borman jobsite, and Whitson again claimed the work for the Respon- dent and threatened the Employer's general foreman, as well as representatives of Borman Food Stores, Inc., Smith & Andrews Construction Com- pany, and Mobil Oil Corporation, with a shutdown of the job. Whitson, on this occasion, also ordered plumbers employed by the McFarland-Dorman Plumbing & Heating, Inc., to leave the Borman jobsite, which they did. Other employees in various trades on this jobsite also stopped working, all of which resulted in a representative of Borman Food Stores, Inc., again ordering the Employer's general foreman and employees off the jobsite. In addition to the dispute at the Borman jobsite, it also appears that similar disputes involving the Employer and the Respondent occurred elsewhere in the area. Thus, a representative of Coster-Kitti Company, which subcontracts to the Employer, testified that in late April 1968 Respondent's agent, James Cum- mings, threatened a representative of Coster-Kitti Company with a refusal to let the plumbers work on any of its jobs where the Employer was working. For about 2 weeks thereafter, until a court injunc- tion was issued, the plumbers employed by Trevar- row, Inc., did not work on Coster-Kitti jobs where the Employer was working. By the foregoing con- duct, it is evident that the Respondent induced em- ployees of the McFarland-Dorman Plumbing & Heating, Inc., and Trevarrow, Inc., to engage in a cessation of work, and that it threatened the Em- ployer, Borman Food Stores, Inc., Mobil Oil Cor- poration, Smith & Andrews Construction Com- pany, McFarland-Dorman Plumbing & Heating, Inc., Coster-Kitti Company, and Trevarrow, Inc., with the objective of forcing the Employer to assign the disputed work to employees represented by the Respondent rather than to those represented by the OCAW. It is admitted that the Employer was not failing to conform to an order or certification of the Board determining the bargaining representative for employees performing the disputed work. In such circumstances, Respondent's actions were un- lawful. Accordingly, we find that the Respondent, 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the conduct set forth above , has engaged in violations of Section 8(b)(4)(i ) and (ii )(D) of the Act.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of the Employer, Borman Food Stores, Inc., Mobil Oil Corporation, Smith & Andrews Construction Com- pany, McFarland-Dorman Plumbing & Heating, Inc., Coster-Kitti Company, and Trevarrow, Inc., have a close, intimate, and substantial relation to trade, traffic, and commerce 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 has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent , Local 98 , United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By engaging in, or inducing or encouraging employees of McFarland-Dorman Plumbing & Heating , Inc., and Trevarrow , Inc., or of other per- sons engaged in commerce or in an industry affect- ing commerce to engage in, a strike or a refusal in the course of their employment to use , manufac- ture , process, transport, or otherwise handle or work on any goods, articles, materials , or commodi- ties or to perform services ; or by threatening, coercing , or restraining Parks Installation Com- pany, Borman Food Stores, Inc., Mobil Oil Cor- poration, Smith & Andrews Construction Com- pany , McFarland-Dorman Plumbing & Heating, Inc., Coster-Kitti Company, and Trevarrow, Inc., or other persons engaged in commerce or in an indus- try affecting commerce , where, in either case, an object thereof is forcing or requiring Parks Installa- tion Company to assign the work of the installation ' Although the General Counsel also has included allegations in the com- plaint that employees of Hertz Corporation, Standard Oil Company (Ohio), and Standard Oil Company (Indiana) were unlawfully induced and that these same employers were also unlawfully threatened, we find only of fuel , lubricating oil, pneumatic piping systems, including the setting and placement of associated storage tanks , piping systems , air compressors, pneumatic lifts and pumps, at gasoline service sta- tions located within the Respondent 's geographic jurisdiction to members of the Respondent rather than to employees of the Employer represented by Local 7-389, Oil, Chemical and Atomic Workers International Union , AFL-CIO, where the Parks Installation Company is not failing to conform to an order or certification of the Board determining the bargaining representative for employees perform- ing such work , Respondent has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b)(4)(i) and (ii)(D) and Sec- tion 2(6) and (7) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , and upon the entire record in this case , the National Labor Relations Board hereby orders that the Respondent, Local 98, United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO, and its officers , agents, and representatives , shall: 1. Cease and desist from engaging in, or induc- ing or encouraging individuals employed by McFar- land-Dorman Plumbing & Heating , Inc., and Trevarrow , Inc., or by other persons engaged in commerce or in an industry affecting commerce to engage in , a strike or a refusal in the course of their employment to use , manufacture , process, trans- port, or otherwise handle or work on any goods, ar- ticles, materials, or commodities or to perform any services; or threatening, coercing, or restraining Parks Installation Company , Borman Food Stores, Inc., Mobil Oil Corporation , Smith & Andrews Construction Company, McFarland-Dorman Plumbing & Heating, Inc., Coster-Kitti Company, and Trevarrow, Inc., or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require Parks Installation Company to assign the work of the installation of fuel, lubricating oil, pneumatic piping systems , including the setting and placement of associated storage tanks , piping systems, air compressors , pneumatic lifts and the unlawful inducement of employees of, and threats to, those employers that are fully supported by the testimonial evidence developed at the hear' ing under Sec l0(k) of the Act LOCAL 98, PLUMBERS , AFL-CIO 481 pumps, at gasoline service stations located within the Respondent's geographic jurisdiction, to mem- bers of the Respondent rather than to employees of Parks Installation Company represented by Local 7-389, Oil, Chemical and Atomic Workers Interna- tional Union, AFL-CIO, unless the Parks Installa- tion Company is failing to conform to an order or certification of the Board determining the bargain- ing representative for employees performing such work. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at Respondent's business offices and meeting halls copies of the attached notice marked "Appendix."2 Copies of said notice, on forms pro- vided by the Regional Director for Region 7, after being duly signed by an authorized representative of the Respondent, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for Region 7 for posting by Parks Installation Company, Borman Food Stores, Inc., Mobil Oil Corporation, Smith & An- drews Construction Company, McFarland-Dorman Plumbing & Heating, Inc., Coster-Kitti Company, and Trevarrow, Inc., if they are willing, at all loca- tions upon their premises where notices to their respective employees are customarily posted. (c) Notify the Regional Director for Region 7, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. Dorman Plumbing & Heating , Inc., and Trevarrow , Inc., or any other persons engaged in commerce , or in an industry affecting com- merce to engage in, a strike or refusal in the course of their employment to use , manufac- ture , process, transport , or otherwise handle or work on any goods, articles , materials, or com- modities or to perform any services; or threaten , coerce , and restrain Parks Installa- tion Company , Borman Food Stores, Inc., Mobil Oil Corporation , Smith & Andrews Con- struction Company , McFarland-Dorman Plumbing & Heating , Inc., Coster-Kitti Com- pany , and Trevarrow , Inc., or any other per- sons engaged in commerce, or in an industry affecting commerce , with the object of forcing or requiring Parks Installation Company to as- sign to employees represented by Local 98, United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, AFL-CIO, the work of installating fuel, lubricating oil, pneumatic piping systems, in- cluding the setting and placement of associated storage tanks, piping systems, air compressors, pneumatic lifts and pumps, at gasoline service stations located within our geographic jurisdic- tion. LOCAL 98 , UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO (Labor Organization) Dated By 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in, induce, and en- courage individuals employed by McFarland- (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washing- ton Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.