Local 98, Plumbers and Pipefitters

582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL- CIO and Darin & Armstrong, Inc. Case 7-CC- 549 August 27, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND JENKINS On May 21, 1970, Trial Examiner William W. Kapell issued his Decision in the above-entitled case finding that Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and the General Counsel filed exceptions and a supporting brief limited to the scope of the Order set forth in the Trial Examiner's Decision. 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 here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations' of the Trial Examiner. ORDER tions Board adopts as its Order the Recommended Order of the Trial Examiner as modified below and hereby orders that Respondent , Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order as so modified: 1. Delete paragraph 1 of the Trial Examiner's Recommended Order, and substitute the following: "1. Cease and desist from inducing or encouraging employees of Darin & Armstrong, Inc., its subcontrac- tors, other than Flamegas, or any other person 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, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services or threatening, coercing, or restraining any of the aforesaid persons 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 any person to cease doing business with Flamegas Detroit Corporation or to force or require any person to cease doing business with Darin & Armstrong, Inc., in order to compel Darin & Arm- strong, Inc., to cease doing business with Flamegas Detroit Corporation." 2. Substitute the attached Board Appendix for Trial Examiner's Appendix. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- We do not adopt the Trial Examiner's statement that the instant controversy does not involve a jurisdictional dispute , but agree , rather, with his observation that Sec 8 (b)(4)(B) and Sec 8(b)(4)(D) are not mutually exclusive ' We find merit in the General Counsel's exceptions to the narrow scope of the Trial Examiner 's limited cease-and-desist order In accord with normal Board practice, which is justified in the present case, we shall amend the Order to include language prohibiting unlawful activity against any secondary employers or persons and their employees where an object is to force or require these persons to cease doing business with the primary employer involved herein or to cease doing business with Dann & Armstrong in order to compel Dann & Armstrong to cease doing business with the primary employer International Brotherhood of Btectrical Workers, Local 501, et al [Samuel Langer] v N L R B , 341 U S 694, 705 (1951), Plumbers and Pipe Fitters Local Union 142 (Cross Construction Co , Inc ), 169 NLRB No 113, fn I WE WILL NOT induce or encourage any employees of Darin & Armstrong, Inc., its sub- contractors, other than Flamegas Detroit Corpo- ration, or any other person engaged in commerce, or in an industry affecting commerce, to engage in a strike or refusal in the course of their employment to use, manufacture, process, trans- port, or otherwise handle or work on any goods or articles, materials or commodities, or to per- form any services or threaten, restrain, or coerce any of the aforesaid persons, where, in either case, an object thereof is to force or require any person to cease doing business with Flamegas Detroit Corporation or to force or require any person to cease doing business with Darin & 185 NLRB No. 53 LOCAL 98, PLUMBERS AND PIPEFITTERS 583 Armstrong, Inc., in order to compel Darin & Armstrong, Inc., to cease doing business with Flamegas Detroit Corporation. 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) called Flamegas . Respondent in its answer admits certain allegations but denies the commission of any violations All parties were represented and were afforded an oppor- tunity to adduce evidence, to examine and cross -examine witnesses, and to file briefs . Briefs have been received from the General Counsel and the Charging Party and have been duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I COMMERCE Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48226, Telephone 313-226- 3200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM W KAPELL, Trial Examiner: This matter, a proceeding under Section 10(b) of the National Labor Relations Act, as amended , herein called the Act, was heard at Detroit, Michigan, on February 26, 1970, with all parties participating pursuant to due notice upon a complaint ' issued by the General Counsel on February 2, 1970 2 The complaint , in substance, alleges that Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, hereafter referred to as Respondent or the Union, has engaged in unfair labor practices in violation of Section 8(b)(4)(i ) and (u)(B) of the Act by unlawfully threatening to picket and picketing the construction site of the Chrysler Building Complex at Highland Park , Michigan, thereby inducing and encourag- ing the employees of D & A, the general contractor, the subcontractors on the construction site, and other persons, to engage in work stoppages , an object thereof being to force or require D & A, the subcontractors, and other persons, to cease using, selling , handling, transporting, or otherwise dealing in the products of, and to cease doing business with Flamegas Detroit Corporation , hereafter ' Based upon a charge filed on January 20, 1970, by Darin & Armstrong, Inc , hereafter referred to as D & A ' All dates hereafter refer to the year 1970 unless otherwise noted D & A, at all times material herein , a corporation duly organized under the law of the State of Michigan, has been engaged as a general contractor in the building and construction industry throughout the United States. During the calendar year 1969, D & A, in the course and conduct of its business operations , purchased and caused to be transported to its jobsites in the State of Michigan goods and materials valued in excess of $50,000 directly from points located outside that State During the same period D & A has also performed services valued in excess of $50,000 for various enterprises located in States other than the State of Michigan. Flamegas, at all times material herein , a corporation duly organized under the laws of the State of Michigan, has been engaged in the sale, rental , and distribution of heating units and related products and in furnishing heating services. During 1969, in the course and conduct of its business operations , Flamegas purchased and caused to be transported and delivered to its Detroit, Michigan, place of business heaters, heating materials, and other goods and materials valued in excess of $50,000, which were transported and delivered directly from points located out- side the State of Michigan During the same period Flamegas performed services valued in excess of $50,000 for various enterprises located in States other than the State of Michigan I find, at all times material herein , that D & A and Flamegas have been engaged in commerce as employers within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, at all times material herein, that it has been a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED VIOLATIONS A The Facts The essential facts are not in dispute. D & A is presently engaged as a general contractor for Chrysler Corporation to construct a $20 million complex of four interconnected buildings at Highland Park , Michigan Work began in May 1968 and completion is estimated in late 1971 In addition to performing some of the work, D & A has 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also subcontracted work to about 20 subcontractors, and there are about 300 employees working on the project. To enable employees to continue working during the winter ieason, D & A in December 1969 entered into a contract with Flamegas to furnish temporary heat to the project. Pursuant to that contract Flamegas rented a propane gas- fired furnace and other equipment to D & A on a fully maintained and operated basis' The heating system is not permanently affixed to the building and once it is installed and turned on, it automatically runs 24 hours a day, and in the normal course of its operation requires only periodic refueling. The installation work was performed by Flamegas, which also supplies the propane gas for its operation In the event the heating system requires servicing of any kind, D & A calls Flamegas, located about 10 miles from the project, and its service people are dispatched to the project No employees other than Flamegas' are permitted to perform any work or services on the heating system. On January 13, William Nearhood, D & A's manager of insurance and safety and also administrator of its labor relations, visited the project after receiving a call from Charles Novacek, project manager, that there was a problem concerning the heaters There, he met in the field office of Robert Carter Company, D & A's mechanical subcontrac- tor, with Carlos Castiglione, Respondent's business agent, who told him that Respondent had traditional jurisdiction over the hookup and standby maintenance of the gas heaters. Nearhood explained. that D & A had only rented the equipment, but Castiglione insisted that the heater services fell within their jurisdiction and that there would be "trouble" unless they obtained the disputed work Nearhood replied that he would take the matter up with the Associated General Contractors of America, Detroit Chapter, Inc , of which D & A is an affiliate. On January 14, Nearhood and three other D & A officials met with Jack Wood, secretary-manager of the Detroit Building and Trades Coun- cil,4 and his assistant Ray Glowski Wood stated that "Bud" Doe, Respondent's president, had requested an executive board meeting of the Trades Council to obtain strike sanction unless Respondent's members were assigned the standby servicing of the heaters Despite Nearhood's explanation that the heaters were rented, Wood warned him that unless the matter was resolved there would be "trouble." When pressed for possible solutions, the Trades Council representa- tives suggested that D & A stop using the heaters or use oil-fired heaters When Nearhood ruled out both sugges- tions as inacceptable, either Wood or Glowski suggested that D & A talk to Flamegas about hiring plumber-members of Respondent to service the heaters Wood also commented that D & A knew better than to have nonunion members on a construction job.' The meeting ended with a suggestion ' The furnace was placed outside of the building and connected to it by a fiberglass duct The propane gas supply was located some 50 feet from the furnace and fed to it through a rubber tube buried in the ground Respondent is affiliated with the Trades Council There was some indecisive testimony to the effect that Flamegas employees were represented by Chemical and Automic Workers, a union not affiliated with the Trades Council that the matter be discussed further on the following day at the Trades Council offices On the following day, Nearhood and Stanley Veighey, director of Labor Relations of the Associated General Con- tractors, met with Ray Glowski, Bud Doe, and Castiglione They again discussed the heater problem, each restating his respective position. They also discussed the cost of alternate proposals. Glowski and Castiglione suggested that D & A stop using heaters, or put plumbers on its payroll to perform standby maintenance, or assign the heating services to a mechanical contractor, whose plumber employ- ees would perform the standby maintenance D & A was unreceptive to any of the proposals, and as the meeting ended Doe warned there would be trouble if Respondent did not obtain jurisdiction over the disputed work. On January 20, pickets, including Doe and Castiglione, appeared at the project carrying placards reading "D & A, Inc provides unsafe, unmanned temporary heat." The picketing resulted in a work stoppage on the whole project until it was enjoined by a United States District Court on February 6, 1970, pending resolution of the dispute by the Board. B Contentions of the Parties and Conclusions The General Counsel contends that Respondent has no labor dispute with D & A, that D & A and all subcontractors on the project except Flamegas are neutral or secondary employees to the dispute, and that an object of Respondent's picketing was to force or require D & A to cease doing business with Flamegas In support of his position that D & A is a secondary or neutral employer, the General Counsel contends that the Company, having divested itself of control of the disputed work by subcontracting it to Flamegas, the so-called "right of control" test as applied by the Board and courts' clearly designates D & A as a secondary employer because, allegedly, it was powerless to accede to Respondent's demands except by ceasing to do business with Flamegas Respondent takes the position ,at it had a jurisdictional dispute with D & A and engaged in lawful primary picketing of that Company. The record is clear that in its discussions with D & A officials, Respondent insisted that it traditionally had jurisdiction over the work it demanded 'Realistically viewed, however, the dispute was not of a jurisdictional nature insofar as D & A was concerned 8 It is crucial to a jurisdlc- Citing Local 636, United Association ofPlumbers (Mechanical Contrac- tors Association ofDetroit, Inc), 177 NLRB No 14, and other authorities ' Although Respondent asserted that the heating system was unsafe without provision for standby maintenance, the claim was never proven It appears more likely that it was raised as a screen to bolster its position However, even assuming that there was a jurisdictional dispute involv- ing D & A, it is well settled that the boycott provisions of Section 8(b)(4)(B) and the jurisdictional provisions of 8(b)(4)(D) are not mutually exclusive The existence of a jurisdictional dispute does not preclude a finding that conduct aimed at resolving the dispute by secondary means violates Section 8(b)(4)(B) See Carpenters Drsirut Council of Kansas Cut and Victnn, 158 NLRB 1101, 1102 and V L R B v Local 282, Teanisters, 344 F 2d 649, 651-652 (C A 2) LOCAL 98, PLUMBERS AND PIPEFITTERS 585 tional dispute that there be two groups of employees who assert competing claims for the same work from a specific employer. See Penello v Local 59, Sheet Metal Workers (E.1 DuPont de Nemours & Company), 195 F Supp 458, 48 LRRM 2495 (D C Del ), and cases cited therein None of D & A employees ever did the disputed work, nor were they claiming it on jurisdictional or other grounds Nor can Respondent claim that it was striving to perserve unit work The touchstone in such situations is whether the demand for the work is addressed to the labor relations of the employer (D & A) vis-a-vis its own employees Obviously, the unit work of D & A's employees was not being diminished or otherwise affected by D & A's subcon- tracting of the disputed work. If anything, it would appear that Respondent was attempting to expand the unit work The dispositive question herein is whether Respondent's action against D & A was calculated to satisfy its objective elsewhere, e.g., its effect on Flamegas Were this the case, D & A would be a neutral bystander and Respondent's conduct would, within the intent of Section 8(b)(4)(B), become secondary 10 Respondent's primary intent and objec- tive was to have the standby maintenance work assigned to one of its members rather than to any other employee. That objective could readily be realized, as urged by Respondent, by having D & A terminate its subcontract with Flamegas, and either subcontract the work to a contrac- tor employing Respondent's members or have D & A directly employ a plumber to do the work in question. It set about to accomplish this by threatening D & A that there would be "trouble" unless the dispute were resolved in its favor Trades Council representatives were then brought into the picture to support Respondent and they, on their own behalf as well as in support of Respondent berated D & A for subcontracting to Flamegas, the only employer on the job who did not employ members of unions affiliated with the Trades Council" D & A was also advised that Respondent was requesting an executive board meeting of the Council for the purpose of applying for strike sanction against D & A When D & A refused to be intimidated, Respondent obtained strike sanction and began picketing the project with signs that D & A was providing unsafe, unmanned temporary heat Respondent's conduct induced and encouraged the employees of D & A, all subcontractors on the project other than Flamegas, and other persons working on the project who were engaged in commerce or in industries affecting commerce, to engage in strikes or refusals in the course of their employment to use, or otherwise handle or work on goods, articles, materials, or commodities, or to perform services, and also thereby coerced and restrained these employers," objects thereof being to force or require D & A to cease doing business with Flamegas, and to force or require all subcon- tractors on the project, other than Flamegas, to cease doing business with D & A allegedly because of the unsafe condition of the project. I, therefore, conclude that Respond- ent engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (u)(B) N.L.R.B v. Denver Building Trades Council [Gould & Preisner], 341 U.S. 675. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations descnbed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following- CONCLUSIONS OF LAW 1 Respondent is a labor organization within the meaning of the Act. 2 The Employers, D & A and Flamegas, are engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and are further engaged in an industry affecting commerce within the meaning of Section 8(b)(4) of the Act 3. By inducing and encouraging individuals employed by D & A and its subcontractors, other than Flamegas, to engage in strikes or refusals to perform services in the course of their employment, and thereby restraining and coercing these employers, where any object thereof in either case was to force or require D & A to cease doing business with Flamegas, and to force or require the subcontractors, other than Flamegas, to cease doing business with D & A, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act ° Cf National Woodwork Manufacturers Association v NL R B., 386 U S 612 '° Nor need there be an actual dispute with Flamegas for the activity to fall within this category so long as Flamegas, or its employees, was the actual objective Respondent 11 I find no merit in Respondent's contention that the General Counsel failed to establish that Trades Council representatives were acting in its behalf in their discussions with D & A Obviously, they were represent- ing the interest of Respondent and doing so in the presence of Respondent's agents 11 See International Hod Carriers, Local 1140 (Gilmore Construction Co), 127 NLRB 541, 545, fn 6, enfd 285 F 2d 397 (C A 8) THE REMEDY Having found that Respondent has violated Section 8(b)(4)(i) and (n)(B) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. On the basis of the foregoing findings of fact and conclu- sions of law, I hereby issue the following- 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER" Respondent Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, its officers, agents, and representatives, shall- 1. Cease and desist from engaging in, or inducing or encouraging employees of Darin & Armstrong, Inc., its subcontractors, other than Flamegas, or any other person engaged in commerce or an industry affecting commerce who is at work on the Highland Park, Michigan, construc- tion site of Chrysler Corporation known as the Chrysler Styling and Product Planning Center, to engage in a strike or a refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, or threatening, coercing, or restraining any of the aforesaid persons where in either case an object thereof is to force or require Darin & Armstrong, Inc, to cease doing business with Flamegas Detroit Corporation, or to force or require the subcontrac- tors, other than Flamegas, or any other person engaged in work on the aforesaid construction site to cease doing business with Darin & Armstrong, Inc. " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 2 Take the following affirmative action which is designed to effectuate the policies of the Act (a) Post at its office and meeting halls copies of the attached notice marked "Appendix "14 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees 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) Furnish said Regional Director with signed copies of the aforesaid notice for posting by Darin & Armstrong, Inc., and Flamegas Detroit Corporation, if they be willing, at places where they customarily post notices to their employees. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 15 " In the event that the Board's Order is enforced by a Judgement 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 Judgement of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith "