Plumbing & Pipefitting, Local 389

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Local 389 (Morris Plumbing Company, Inc.) (Paul Scheurer Engineering Company, Inc.) and D. L. Eastridge. Cases 16-CB-406 and 16-CB-422 June 4, 1969 DECISION AND ORDER BY CHAIRMAN MCCULI.OCH AND MEMBERS BROWN 'AND ZAGORIA On April 3, 1969, Trial Examiner William F. Scharnikow issued his Decision in the above-entitled proceedings, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and 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.' 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. 1968, and in Case 16-CB-422 on September 10, 1968, the Regional Director for Region 16 issued an order consolidating the two cases and a consolidated complaint against the Respondent Union on October 31 , 1968. The consolidated complaint alleges , but the Respondent Union in its answer denies, that the Respondent Union committed unfair labor practices affecting commerce within the meaning of Section 8 (bx1XA) and (2) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act, by refusing to give Eastridge clearances for employment and thereby causing or attempting to cause employers Morris Plumbing Company, Inc. and Paul Scheurer Engineering Company, Inc. (herein called respectively the Morris Company and the Scheurer Company) to discriminate against Eastridge in violation of Section 8(a)(3) of the Act, that is ; ( 1) by causing Morris Company to refuse to hire Eastridge on or about June 12, 1968 (as charged in Case l6-CB-406); and (2) by thereafter causing Scheurer Company (in further violation of an intervening Settlement Agreement executed by the Respondent in the first case on July 22, 1968 ) to discharge Eastridge on or ,,bout September 9, 1968, and to refuse to rehire him (as ch ged in Case 16-CB-422). As amended on November 8, 1968, the consolidated complaint also alleges, but the Respondent Union in its answer to the amendment denies , that the Respondent Union refused Eastridge a clearance for employment by Scheurer Company on September 9, 1968 because he had filed the unfair labor practice charge in Case 16-CB-406, and for this reason its refusal of clearance constituted a restraint and coercion of the employees of the Scheurer Company in the exercise of rights guaranteed by Section 7 of the Act and an unfair labor practice within the meaning of Section 8(b)(l)(A) of the Act. Pursuant to notice , a hearing was held at Wichita Falls, Texas, on January 21 and 22, 1969 before me, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent Union appeared by counsel and were afforded full opportunity to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Since the close of the hearing, I have received and considered briefs from the General Counsel and counsel for the Respondent Union. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESSES OF THE EMPLOYERS 'In adopting the Trial Examiner's recommendation that the complaint be dismissed in its entirety , we have considered the presettlement conduct underlying the allegations in Case 16-CB-406. but, nevertheless, conclude that, even against this background , the record fails to establish that Respondent in Case 16-CB-422 was motivated by any considerations other than the enforcement of a lawful hiring arrangement. See, e.g.. Northern Calfornia Dbtrkt Council of Hod Carriers and Common Laborers of America, AFL-CIO (Joseph's Landscaping Servke), 154 NLRB 1384, fn. 1. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW, Trial Examiner: Upon charges filed by D.L. Eastridge, an individual, against the Respondent Union in Case No. 16-CB-406 on June 13, Morris Plumbing Company, Inc., herein referred to as the Morris Company, is a Texas corporation with its principal office and place of business in Wichita Falls, Texas, and is engaged in the sale and installation of plumbing fixtures . During the year preceding the issuance of the complaint, the Morris Company, in the conduct of its business operations, purchased goods of a value in excess of $50,000 from points outside the State of Texas and during the same period of time also sold and installed plumbing fixtures outside the State of Texas of a value also in excess of $50,000. Paul Scheurer Engineering Company, Inc., herein called the Scheurer Company, is also a Texas corporation with its principal office and place of business in Wichita Falls, Texas and is engaged in the manufacture and sale of custom sheet metal and air-conditioning equipment and 176 NLRB No. 50 PLUMBING & PIPEFITTING, LOCAL 389 related products. During the conduct of its business operations in the year preceding the issuance of the complaint, it purchased and received in Wichita Falls, Texas, goods of a value in excess of $50,000 directly from States of the United States other than the State of Texas. During the same year, it sold and delivered products of a value in excess of $50,000 and shipped them to points in the United States outside the State of Texas. I find that the Morris Company and Scheurer Company are employers engaged in businesses affecting commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to entertain jurisdiction in the present case. 11. THE RESPONDENT LABOR ORGANIZATION The Respondent, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Local 389 (hereinafter referred to as the Union), is a labor organization within the meaning of the Act). III. THE ALLEGED UNFAIR LABOR-PACTICES A. The Relevant Facts` At all material times, the Morris Company and the Scheurer Company have been parties to contracts with the Union' covering their plumbers, steamfitters, refrigeration fitters, and welders, and containing continuing identical provisions making the Union "the sole and exclusive source of referrals of applicants for employment." In accordance with the substance of these provisions so far as they are material in the present cases, the Union was to maintain a register or "out of work list" of available "applicants for employment," whether Union members or not, in the order of the applicants' registration of their availability; the Union, upon an employer's request, was to refer "applicants" to the employer in this order and without discrimination; and the employer was "free to secure applicants without using the referral procedure" only if the "registration list" was exhausted or the Union was unable to refer applicants within 48 hours after receiving the employer's request . There is no dispute in the present cases, and I accordingly find, that these contractual provisions were, and are, valid, nondiscriminatory exclusive hiring hall provisions binding upon the parties to the contracts. On June 13, 1968, D. L. Eastridge, a welder and not a member of the Union, filed a charge with the Board's Regional Director in Case l6-CB-406, alleging that the Union had committed an unfair labor practice within the meaning of Sections 8(b)(1a) and (2) of the Act in that "since on or about June 6, 1968 . . . [the Union] caused or attempted to cause Morris Plumbing, an employer, to refuse to hire D. L. Eastridge, an individual, in violation of Section 8(a)(3) of the Act and [has] refused and continues to refuse to place said individual on its hiring list." But the Regional Director did not thereupon issue a complaint. For the Union (on July 22, 1968) and Eastridge, the charging party (on July 24, 1968) executed a "Settlement Agreement," which the Regional Director 'The Morris Company, as a member of the Associated Plumbing Contractors of Wichita Falls, Texas, was bound by such contracts executed by its Association and the Union . The Scheurer Company, although not a member of the Association, had accepted and executed identical contracts with the Union 403 approved on July 25, 1968. Under the terms of this agreement the Union was to pay Eastridge the sum of $139.20, and to execute and thereafter to comply with the provisions of a "Notice" to be posted on the business premises of the Morris Company, in which the Union stated that it would not cause or attempt to cause the Morris Company to discriminate against employees in violation of Section 8(a)(3) of the Act, nor in any like or related manner restrain or coerce employees of the Morris Company or any other employer in the exercise of their Section 7 rights. Affirmatively, the Notice also stated that the Union would pay the agreed sum of money to Eastridge and would "notify Morris Plumbing Company that we have no objection to its employment of D. L. Eastridge in the operation of its business." Finally, the Settlement Agreement provided that "Contingent upon compliance with the terms and provisions hereof, no further action shall be taken in the above case." The Union took immediate steps to comply with the Settlement Agreement. It paid Eastridge the sum agreed upon and on July 22, 1968, the day it executed the Settlement Agreement, Joe L. Burton, its business agent, also signed the prescribed notice which was thereupon posted by the Morris Company. On July 12, 1968, and thus even before the execution of the Settlement Agreement, Eastridge had asked to sign and had signed, the Union's out-of-work list" for the first time= and Business Agent Burton had then given him a referral to the Morris Company which Eastridge had thereupon presented to that company. As a result, Eastridge had already begun working for the Morris Company on July 15, 1968. A period of calm followed these events. Eastridge worked as a welder for the Morris Company from July 15 until the end of August 1968. Then, J. Arlie Chadwick, Morris' general superintendent told Eastridge that with the Morris Company's current jobs nearing completion, "things were slow" and Eastridge was to be "lent" to the Scheurer Company. Such an arrangement was in fact made in conversations which President Frank Morris of the Morris Company had with both President Paul Scheurer and Vice president Louis Byrd of the Scheurer Company. According to Paul Scheurer, he simply hired Eastridge after his conversation with Morris. But, consistent with Morris' remark to Eastridge, Byrd testified (and I credit his testimony) that the Scheurer Company hired Eastridge on September 4, 1968, as a result of Frank Morris' telling Byrd that Eastridge was a good welder, that Morris would like to see Eastridge stay in the community, and that he would appreciate it if the Scheurer Company would employ Eastridge "on a temporary basis" when the Morris Company ran out of work. As a result, Eastridge was hired by the Scheurer Company and began work on a job for Scheurer at the Midwestern University on Thursday, September 5. The Scheurer Company had not made a request of the Union for a referral and Eastridge did not register on the Union's out-of-work list before taking the Scheurer Company job. Eastridge had, however, filled out and originally submitted to the Union on June 6, an application for Union membership upon which the Union's Executive Board had taken no final action pending an investigation by Business Agent Burton of the 'Eastridge had previously filled out and originally submitted to the Union on June 6, only an application for Union membership. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements made in the application.' Eastridge worked without incident for the Scheurer Company on the Midwestern University job on Thursday and Friday, September 5 and 6. On Saturday, September 7, Jack Whitt, a member of the Union and plumber foreman for Palco, another contractor on the University job, telephoned Business Agent Burton and asked whether the Union had referred Eastridge to Scheurer. Burton said that there had been no referral . On the same day, D. H. Muterspaugh, a union member employed by the Scheurer Company on the University job, also telephoned Burton about another matter . In their conversation, Burton asked Muterspaugh about Eastridge, the new welder on the job. Muterspaugh testified , as a witness for the General Counsel, that he told Burton he thought Eastridge was "Okay"; that Burton then said "the man might be okay in some respects but that he wasn't okay in all respects"; that Muterspaugh asked Burton what Burton meant; and that to the extent ' Muterspaugh recalled Burton's answer, Burton replied that , "for some reason the man had brought suit against our Local."' But although Burton might thus have made somb 'reference to the earlier unfair labor practice charge which Eastridge had filed against the Union, I credit Burton's testimony and find that he also told Muterspaugh that "whoever it was on the jobsite was there wrongfully and that the referral system had been violated and we would have to seek an adjustment." At about 8 o'clock on Monday morning, September 9, Business Agent Burton went to the Midwestern University jobsite. His appearance and his conversations at that time with Eastridge, President Paul Scheurer and Vice president Byrd of the Scheurer Company in the presence of the few Union-member employees of the Scheurer Company and Palco who were about to go to work, resulted in Scheurer's discharge of Eastridge and constitute the basis of Eastridge ' s second unfair labor practice charges against the Union which were filed a few days later in Case l6-CB-422. Upon considering and collecting the details of the testimony given by the various witnesses (Eastridge, Burton, Scheurer, and Foreman Ingram ), there appears to be actually no dispute as to the material substance of these conversations at the University jobsite on September 9 and Scheurer's immediate discharge of Eastridge.' Eastridge and several of Scheurer' s and Palco's men, all of whom were Union members, were standing around on the jobsite when Burton got there . Paul Scheurer and Byrd, having been called by their foreman , arrived shortly thereafter. Scheurer asked Burton what the problem was and Burton replied that Scheurer had broken their contract by hiring Eastridge without a Union referral under the hiring hall provision . Scheurer said they had borrowed Eastridge from the Morris Company and urton testified, but Eastridge denied , that on June 12, Eastridge informed him that he was withdrawing his membership application. In the circumstances shown by the evidence , this conflict in their testimony as to whether Eastridge's membership application was still pending, is immaterial and the conflict is therefore , not resolved. For, under the valid hiring ball provisions of the contract, neither Eastridge's application for Union membership nor even his acquisition of membership would have entitled him to a "referral," and, as I have found, when he did sign the "out-of-work" list as required by the hiring hall provisions , the Union, both in compliance with its contract obligations and in anticipation of its undertaking in the Settlement Agreement , had immediately issued him a referral to the Morris Company and he had gone to work for that company without Union interference 'With respect to this portion of Burton 's reply, Muterspaugh testified that, "this is the only thing that stays with me " Burton pointed out that Eastridge had been referred to the Morris Company and not to Scheurer, and could not be simply "transferred" to Scheurer. To Scheurer's question whether the Union would nevertheless "permit" Eastridge to work for Scheurer, Burton answered that Scheurer could ask for a referral and Eastridge could make an "application," but that Burton could not immediately refer Eastridge without first checking his "out-of-work" list. Scheurer then asked how long it would take for Eastridge to get either a referral or a membership "card," apparently assuming incorrectly that membership would satisfy the hiring hall referral requirement . Eastridge interrupted with the statement that he had already applied for a "bard." Whereupon one of the Union employees in the group asked, "What would you do on an application if someone had filed a suit against you?" Answering Scheurer's question concerning an application for Union membership, but without withdrawing his insistence that the "referral" provisions of the contract be complied with, Burton said it would take several weeks to process Eastridge's application for membership and that the Union's Executive Board would have to pass upon the application. Scheurer asked Burton what it would take to get the men bapk, to work, and Burton replied that he didn't think the,pen would work with Eastridge. Finally, Scheurer turned to Eastridge and told him "it looked like he was going to be discharged [and that he should] come in and get his pay check." Shortly after Scheurer discharged Eastridge - perhaps later in the day - the Union's attorney telephoned to Paul Scheurer. According to Scheurer, the attorney told him "that he was employed by the Union and ... it looks like we've got troubles down here, we have and you have . He asked me as to whether or not we could hire [Eastridge] back and I told him no, that I couldn't afford him. I couldn't stand any more trouble on the job ...." On the same day, Business Agent Burton also called Scheurer and told Scheurer "that upon the advice of [his] attorney [Burton] was willing to refer Mr. Eastridge to the Paul Scheurer Engineering Company" but Scheurer said, "that he didn't want him." On September 11, 1968, 2 days after his discharge by the Scheurer Company, Eastridge went to the Union hall and signed the "out-of-work list." Since then, the Union has given Eastridge several job referrals - the first of which was mailed to him and received by him on September 14, 1968. B. Conclusions In the present proceeding, the Union is accused of withholding clearances or referrals for Eastridge's employment first by the Morris Company on and after June 6, 1968 (as charged in Case 16-CB-406) and then by the Scheurer Company on September 9, 1968 (as charged in Case 16-CB-422). As a result, according to the consolidated complaint, the Union thereby caused the Morris Company to refuse to hire Eastridge, and the Scheurer Company to discharge him, and in both ' At the beginning of his testimony concerning the September 9th conversations, Eastridge stressed remarks which he said were made by Burton as to the men's unwillingness to work with him, and, by this stress, seemingly implied that it was solely because of this unexplained pressure that Paul Scheurer then discharged him But he then added that there was also a discussion of Burton's objection to his lack of a "referral" to the Scheurer Company, which as the other witnesses more fully and consistently testified (and I therefore find in the text), actually resulted in Scheurer's decision to discharge Eastridge. PLUMBING & PIPEFITTING, LOCAL 389 405 instances committed unfair labor practices within the meaning of Sections 8(b)(I)(A) and (2) of the Act. But there are two factors which in combination eliminate the possibility of reaching any such unfair labor practice conclusions in the present cases. The first is the evidence which appears to justify the Union's failure or refusal to give Eastridge a job referral under the valid hiring and referral provisions of its contracts with the two employers. The second factor is the settlement by the parties of the original unfair labor practices charges with the Regional Director's approval on July 25, 1968, in Case 16-CB-406 which, under the decisions, bars both the revival of these charges and the consideration of any evidence that might have supported them as material background to the charges in Case 16-CB-422, unless it has also been shown that the Union has not complied with the terms of the settlement agreement or has committed similar postsettlement unfair labor practices as are charged in Case 16-CB-422.1 Upon this analysis, therefore, the first question to be decided is whether, as alleged in the charges in Case 16-CB-422, the Union committed, an unfair labor practice within the meaning of Section 8(b)(1)(A) or (2) of the Act by causing the Scheurer Company to discharge Eastridge on September 9, 1968. For, only if these later charges were, ktistained by the evidence, would the Board be justified ih ;considering the evidence and possibly making a finding of unfair labor practice in Case 16-CB-406. With respect to Scheurer's discharge of Eastridge, it is clear from my foregoing findings upon the evidence, that the Union acting through Business Agent Burton on September 9, 1968, did no more than object to Scheurer's hire and continuing employment of Eastridge without first having complied with the requirements of the valid, nondiscriminatory, hiring and referral provisions of Scheurer's contract with the Union. For, as Burton pointed out to Paul Scheurer, the Scheurer Company had not requested referral of a job applicant from the Union nor had Eastridge signed the Union's "out-of-work list." Nor did it even appear that if Eastridge were then to be regarded as making an application for referral, he would be first on the "list" and entitled to the referral. Accordingly, Burton was fully justified in insisting upon Scheurer's compliance with the valid terms of its contract with the Union and he did not thereby cause or attempt to cause Scheurer to discriminate against Eastridge in violation of Section 8(a) (3) of the Act, as alleged in the complaint. Furthermore, despite the bystanding Union employee's expression of antagonism to Eastridge as an applicant for Union membership because of his earlier unfair labor practice charges against the Union, it does not appear that this influenced Burton in his taking the position, as he did, that Eastridge had been hired and was being employed by Scheurer in breach of the referral 'Wallace Corporation v. N.L.R.B., 323 U.S. 248, 253-255; N L.R.B. v. Superior Tool ilk Die Co., 309 F. 2d 692 (C.A. 6); Lincoln Bearing Co. v. N.L R.B., 311 F.2d 48 (C.A. 6); N.L.R.B. v. Garment Workers, I L G. W. U. (Susan Evans , Inc.), 342 F.2d 988 (C.A. 2). provisions of the contract. For these reasons, I conclude, contrary to the allegations of the consolidated complaint based upon the charges in Case 16-CB-422, that the Union did not cause or attempt to cause the Scheurer Company to discharge and refuse to rehire Eastridge either in violation of Section 8(a)(3) of the Act or because of Eastridge's earlier unfair labor practice charges against the Union, and I further conclude therefore that with respect to Eastridge's employment by Scheurer, the Union did not commit unfair labor practices within the meaning of Section 8(b)(1)(A) or (2) of the Act. In view of this recommendation of a dismissal of the allegations of the consolidated complaint in Case 16-CB-422, I find no basis for holding that the Union committed any such unfair labor practices as would warrant the revival of the previously settled charges in Case 16-CB-406 relating to Eastridge's employment by the Morris Company. I will therefore recommend that the remaining allegations of the consolidated complaint based upon the charges in Case 16-CB-406 should also be dismissed and that the settlement agreement approved by the Regional Director in that case on July 25, 1968, should be reinstated. Furthermore, upon consideration of the evidence produced by the General Counsel in the present proceedings to support the unfair labor practice charge in Case 16-CB-406, I find nothing in the way of material background which would affect my basic findings and conclusions that the charges and complaint in Case 16-CB-422 should be dismissed. For, without setting it forth at length, it appears from this evidence that Eastridge, even when seeking a job with the Morris Company in June 1968 did not sign the Union's "out-of-work list" and thus comply with the contractual provisions entitling him to a referral to the Morris Company, but that he merely filled out an application for Union membership apparently in the mistaken belief that this would be sufficient. In summary, I have concluded upon the foregoing findings and considerations, that. (1) The settlement agreement in Case 16-CB-406 bars any finding in the present proceedings that, as alleged in the consolidated complaint, the Union refused Eastridge a referral for employment by the Morris Company and thereby committed an unfair labor practice within the meaning of Section 8(b)(1)(A) or (2) of the Act; and (2) That the evidence does not support a finding in Case 16-CB-422, as also alleged in the consolidated complaint, that the Union refused Eastridge a referral for employment by the Scheurer Company and caused Eastridge's discharge in violation of Section 8(b)(1)(A) or (2) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, the entire record in the cases, and the conclusions and reasons set forth in this Decision , it is recommended that the Board: (1) Dismiss the consolidated complaint in its entirety; and (2) Reinstate the Settlement Agreement executed by D. L. Eastridge and the Union, and approved by the Regional Director on July 25, 1968, in Case 16-CB-406.