Huxtable-Hammond Co., Inc.

HUXTABLE-HAMMOND CO., INC. Huxtable-Hammond Co., Inc. and Local Union 562, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and Walter Marks, Jr. Cases 17-CA-3430 and 17-CB-579 January 23, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On August 5, 1968, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending dismissal of the complaint, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision together with a supporting brief. 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 and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as modified below.' ORDER Pursuant to the provisions of Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. 'In those sections of the Trial Examiner's Decision entitled "Conclusions" and "Conclusions of Law," the Trial Examiner inadvertently referred to Respondent Huxtable-Hammond Co., Inc., as "Furnco " We hereby amend those madvertencies by substituting for "Furnco" the name of Huxtable-Hammond Co, Inc. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner : Upon a charge filed in Case 17-CA-3430 on December 6, 1967, by Walter R. Marks, Jr., herein Marks, against Huxtable-Hammond Co., Inc., herein Huxtable, and upon a charge filed in Case 17-CA-579 on December 6, 1967, by Marks against Local Union 562, International Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, herein Local 562, the General Counsel issued complaint in both cases and on January 31, 1968, issued an order 197 consolidating said cases and a notice of hearing. The complaint in Case 17-CA-3430 alleged that Huxtable violated Section 8(a)(1) and (3) of the Act by discharging Marks because of his lack of membership in or approval by Local 562. The complaint in Case 17-CB-579 alleged that Local 562 attempted to cause and did cause Huxtable to discharge Marks because of his lack of membership in and approval by Local 562. The answers of Respondents denied the commission of unfair labor practices. This proceeding, with all parties represented, was heard by me at Columbia, Missouri, on July 9. At the conclusion of the hearing the parties indulged in brief oral argument. No briefs were submitted Upon the entire record in this case and from my observation of the demeanor of the witnesses while testifying, I make the following FINDINGS 'AND CONCLUSIONS L THE BUSINESS OF HUXTABLE Huxtable is a Kansas corporation engaged in the construction industry as a general contractor with its principal place of business at Kansas City, Kansas. During a'representative year it performs services valued in excess of $50,000 outside the State of Kansas. At all times material herein Huxtable was engaged in the construction of a pipe line for Panhandle Eastern Pipe Line Co., at Centralia, Missouri. Huxtable is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED Local 562 is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts 1. Background Huxtable, according to the testimony of Joe Burns, its construction superintendent, started work on a piping job for a water cooling system for Panhandle Eastern Pipe Line at Centralia, Missouri, in June 1967,' and finished it in November. Before the work started there was the usual prejob conference with representatives of the various crafts involved including Local 562. Mr. Huxtable and Burns represented Huxtable and Virgil Walsh, business representative, represented Local 562. Huxtable and the Pipefitters International had entered into an agreement entitled "National Construction Agreement for the United States of America" on April 1, 1966, effective until March 31, 1968.2 The terms of this agreement governed working conditions at Centralia. With respect to hiring the Agreement provided, article V, as follows: 'Unless otherwise noted all dates refer to 1967 'G. C Exh. 2. 174 NLRB No. 35 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hiring of Men In hiring men, the Employer shall be the sole judge of the number of men required. The Employer agrees to be bound by the hiring practices in the local area not inconsistent with the terms of this Agreement. The Employer shall notify the Local Union to refer competent and skilled journeymen and apprentices. The selection of applicants for referral to jobs shall be on a nondiscriminatory basis and in accordance with the President's Executive Order 10925, as amended, and Title VII of the Civil Rights Act of 1964, and shall not be based on or in any way affected by union membership, bylaws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policy or requirement. The Employer shall retain the right to reject any applicant referred by the Union. Men referred to the job shall report to an employment office established for the job site. Selection and employment of the required number of apprentices and the administration of the local apprenticeship system shall be governed by the terms and procedure provided in the local agreement of the local union having jurisdiction where the job is located. The designation and determination of the number of foremen and other supervisory personnel is the sole responsibility of the Employer The Union agrees to furnish at all times to the Employer duly qualified journeymen and apprentices in a sufficient number as may be necessary to properly execute the work contracted by the Employer in the manner and under the terms specified in this Agreement. In the event the local union is unable to supply sufficient qualified and competent journeymen, the Employer may request the United Association to furnish such additional employees as it requires and the United Association agrees to notify its local unions of the availability of work and request the local unions to refer journeymen to the Employer. If, upon request, the local union or the United Association is unable within 72 hours to supply journeymen, including journeymen with special skills, the Employer may secure journeymen from out-of-town labor market areas. Journeymen with special skills shall perform any work coming within the coverage of this Agreement. In the event of any conflict between the standards and provisions of the. local agreement and this Agreement, the provisions and standards set forth in this Agreement shall prevail, except that local hiring practices, as described in paragraph 17 hereof, shall have priority. It is not alleged that either this agreement or the practice under it was illegal. 2. The discharge of Marks Marks testified that he was a pipefitter welder and had been one since 1950-51. He was a member of Pipefitters Local 58 1 , Hannibal, Missouri. On the evening of June 26 , he received a telephone call from Charles Benny, business manager of Local 379, Jefferson City, inquiring if he wanted work and if he could pass the Panhandle Eastern test for welders Marks answered both questions in the affirmative . Later that evening he received a call from a Bob Johnson who told him he was general foreman and steward on the Panhandle Eastern job, asked him if he wanted work, if he could pass the welder's test and if he was in trouble with Local 562. Again Marks answered the first two questions affirmatively, and, as to the third, said he did not think so. He went to_ the jobsite the next morning where he met Johnson and was introduced to Burns. He signed the W-4 Form and waited for the welding inspector. When the inspector arrived the test was set up and Johnson started on it. About 9:30 Johnson came to him and told him he would have to lay him off. Johnson took him to the trailer where he told Burns to write his check. Johnson told Marks when asked who told him to lay him off said, "Well, it lays between Mr. Benny and Mr. Walsh." After a brief discussion regarding pay he was given 2 hours double time and 6 hours straight. He had a 20-minute discussion with Burns before leaving the jobsite in which they agreed they did not like the way the discharge had been handled. Joe Burns testified that he was superintendent at the Panhandle project at Centralia from June until November 1967. When Burns and Mr. Huxtable had their first conversation with Walsh at the prejob conference they requested a general foreman and Walsh sent them one Robert Johnson, who reported about June 1.3 Sometime after he reported Johnson told Burns, according to Burns, that he was shop steward for Local 562 but Burns also testified that no shop steward was ever appointed at the Centralia job Burns could remember that Marks came to the jobsite and was hired but could not remember if he had a referral slip. Shortly after his hire Johnson came to Burns and told him he would like to have Marks discharged, that "they dust wanted him off the job." After some prompting, Burns admitted that Johnson told him Marks was in trouble with Local 562 This occurred after Johnson had received or made a telephone call from or to an unidentified person. Johnson then brought Marks to the trailer and Burns, after calling his office at Kansas City and securing approval for the discharge, wrote out his check. During the examination of Burns, James R. Willard, counsel for Huxtable made the following statement: Our position [is] there was a request that came in that the man not be retained on the job, we were operating under a hiring hall arrangement and a reasonable request came through, we believe it came from the Union and we don't know why, and we have no duty to inquire why. General Counsel then asked Burns if that was the reason Marks was discharged and the answer was, "Yes." On cross-examination Burns testified that Johnson did not have supervisory authority as defined in the Act but merely relayed orders to the men. Burns did regard Johnson as his day-to-day contact with Local 562. Virgil Walsh, called as a witness by Local 562, testified that Johnson was not a member of Local 562, was not job steward for Local 562 and was not authorized to speak for Local 562. He did, however, send Johnson out when Huxtable requested a foreman. On the day that Marks reported for work as a welder Walsh received a call from Johnson and he asked Johnson why he (Walsh) had not had an opportunity to refer a man to the welder's job, an opportunity Walsh stated was stipulated in the contract. He denied telling Johnson that he thought Walsh should 'Johnson was not a member of Local 562 HUXTABLE-HAMMOND CO., INC. be let go or that the termination of Walsh was discussed. He did state that he would assume that following this conversation Huxtable would let Marks go. B. Conclusions I think the issue as to whether the discharge of Marks was lawful depends upon the construction of the agreement between Huxtable and the International, supra. The following clauses of said agreement clearly spell out an "area preference" contract between the parties. These read: The Union agrees to furnish at all times to the Employer duly qualified journeymen and apprentices in a sufficient number as may be necessary to properly execute the work contracted by the Employer in the manner and under the terms specified in this agreement. In the event that local union is unable to supply sufficient qualified and competent journeymen, the Employer may request the United Association to furnish such additional employees as it requires and the United Association agrees to notify its local unions of the availability of work and request the local unions to refer journeymen to the Employer. If, upon request, the local union or the United or the United Association is unable within 72 hours to supply journeymen, including journeymen with special skills, the Employer may secure journeymen from out-of-town labor market areas. While Local 562 was not a party to this agreement it is clear from its terms that it covered local unions affiliated with the International. Without deciding peripheral issues, e.g., the agency status of Johnson, I find that Local 562 protested the employment of Marks because Furnco had not first offered Local 562 the opportunity to refer a welder with membership in Local 562. I find such a protest and the consequent discharge of Marks by Furnco in response to such protest lawful. In Local 542, International Union of Operating Engineers, AFL-CIO (Ralph A. Marino, General Contractor), 151 NLRB 497, 500, the Board stated: It appears to be a common practice (although not necessarily a uniform one) for employers in the building and construction industry to utilize the available local supply for work to be performed in that area before 199 hiring help outside the area. Indeed construction unions have been instrumental in establishing such a practice and have themselves established certain areas of jurisdiction among locals of the same International Union and with other unions. We also note that Section 8(f)(4) of the Act gives recognition and approval to such practice by providing that it is not an unfair labor practice when an agreement between an employer and a labor organization of which building and construction employees are members, gives priority for employment based upon length of service in the particular geographical area. Thus, Congress has in effect given its approval to a policy of giving priority to employment to people already working in the area of the work to be performed. As we construe the hiring and referral clause to require the Employer to utilize the union referral system in securing employees for the work in that area, the Union could, without violating the Act, properly seek the discharge of the employees in question who had bypassed the Union's referral system. See also Building Material & Dump Truck Drivers Local 420, 132 NLRB 1044; International Union of Operating Engineers, Local 98 (Consolidated Gas & Service Co.), 155 NLRB 850; Carpenters Local Union No. 1849, 161 NLRB 424. Contrary to the General Counsel I do not find that Marks was discharged because of lack of membership in Local 562 but because Local 562 was attempting to protect the rights of its members in its jurisdictional territory under the "Agreement" between Furnco and the International. Upon the basis of the foregoing findings and conclusions, I make the following. CONCLUSIONS OF LAW 1. Respondent Local 562 has not violated Section 8(b)(1)(A) and (2) of the Act. 2. Respondent Furnco has not violated Section 8(a)(1) and (3) of the Act. RECOMMENDATION It is recommended that the complaint be dismissed in its entirety.