Local Union No. 72, Plumbers

212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 72, United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada (Charles E. Turner and Company, Inc.) and James D. Mull. Case 10-CB-1731 October 20, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On May 5, 1969, Trial Examiner Alba B Martin issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent 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, brief, 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, as modified below, and hereby orders that the Respondent, Local Union No. 72, United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 'Respondent has excepted to the Trial Examiner ' s Recommended Order and Notice insofar as the breadth of the proscription extends beyond the specific employer, employee, and type of violation here involved Respondent also has excepted to the requirement that it provide the Charging Party , Mull, with a written statement that it has no objection to the employment of Mull by any other employer As the record in this proceeding discloses only a single violation involving but one employee, and is without indication of any broader pattern of conduct involving discrimination against any other employee, we find merit , in part, in these exceptions , and shall issue a more limited order, as hereinafter set forth, confining the proscription to discrimination or attempted discrimination directed against Mull I Delete paragraphs 1(a) and 1(b) of the Trial Examiner's Recommended Order and substitute the following therefor "(a) Causing or attempting to cause Charles E. Turner and Company, Inc., its officers, agents, successors, or assigns, or any other employer, to refuse to hire James D. Mull, to discharge him, to limit his job opportunities, or otherwise to discriminate against him in violation of Section 8(a)(3) of the Act "(b) In any like or related manner restraining or coercing employees of Charles E. Turner in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement made in accordance with the provisions of Section 8(a)(3) of the Act requiring membership in the Union as a condition of employment " 2. Delete paragraph 2(a) of the Trial Examiner's Recommended Order and substitute therefor the following paragraph, and renumber the subsequent paragraphs: "(a) Make whole James D. Mull for any loss of earnings he may have suffered by reason of the Respondent's causing the discrimination against him by paying him: (1) an amount equal to the wages he would have earned, but for Respondent's unlawful conduct, from April 29 to July 23, 1968, inclusive, less Mull's earnings during that period, the amount of backpay due to be computed on a quarterly basis in the manner set forth by the Board in F W Woolworth Company. 90 NLRB 289, and (2) in addition, an amount equal to any and all expenses incurred by Mull in seeking new employment between April 29 and July 23, 1968 The amounts due Mull under the terms of these provisions shall bear interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716." 3. Delete the first and second indented paragraphs of the Appendix attached to the Trial Examiner's Decision and substitute the following: WE WILL NOT cause or attempt to cause Charles E. Turner and Company, Inc., its officers, agents, successors, or assigns, or any other employer, to refuse to hire James D. Mull, to discharge him, to limit his job opportunities, or otherwise to discriminate against him in violation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of Charles E. Turner in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement made in accordance with the provisions of Section 8(a)(3) of the Act requiring membership in the Union as a condition of employment. 4. Delete the fifth indented paragraph of the Appendix attached to the Trial Examiner's Decision. 179 NLRB No. 32 LOCAL UNION NO . 72, PLUMBERS 213 TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE ALBA B. MARTIN, Trial Examiner With all parties' represented by counsel, this proceeding was heard before me in Atlanta, Georgia, on January 15 and 16, 1969, on complaint of the General Counsel of the National Labor Relations Board and answer of Local Union No 72, United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, herein called Respondent and Respondent Union and the Union. The issue litigated was whether Respondent caused the employer of James D. Mull, the charging party, discriminatorily to discharge Mull in violation of Section 8(a)(3), Respondent thereby violating Section 8(b)(2) and 8(b)(I)(A) of the Act After the hearing the General Counsel and Respondent filed briefs, which have been carefully considered Upon the entire record and my observation of the witnesses, I hereby make the following FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER Charles E. Turner and Company, Inc , herein called the Turner Company, the Company, and the Employer, is a Georgia corporation with its office and place of business in Decatur, Georgia, where it is engaged as a mechanical contractor in the building and construction industry During the 12 months prior to the issuance of the complaint on December 5, 1968, a representative period, the Employer purchased and received materials valued in excess of $50,000 directly from suppliers located outside the State of Georgia Upon this evidence I find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act H. THE LABOR ORGANIZATION INVOLVED Local Union No 72, United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada is a labor organization within the meaning of Section 2(5) of the Act III. THE UNFAIR LABOR PRACTICES A. Causing the Turner Company to Discharge Mull James D. Mull, a journeyman plumber for 20 years, had worked exclusively for the Turner Company for over 1 1/2 years, when he was discharged as a result of a telephone call from Respondent Union's business agent, Marion Lee, to the Turner Company's president, Charles E Turner. Mull worked for this Employer from August 1966 until his discharge April 26, 1968. He was a satisfactory and valued employee, and a very honest and credible witness. Charles E Turner by his demeanor as a witness also impressed me as a credible witness He credibly testified that the single precipitating fact that caused him to discharge Mull was Lee's telephone call to him of April 26. In this call Lee informed Turner that Mull was not "in" the Local and that Mull was not eligible for employment until such time as he came on referral from Lee. Immediately thereafter Turner told Mull that Lee had said that Mull could not work for the Turner Company unless he came out there on a referral from Lee. As Turner and Mull continued talking the latter told Turner that he knew he couldn't work for him any longer because he had not been accepted into the Local, and that he didn't want to put Turner on the spot by forcing the issue Mull hasn't worked for the Turner Company since Turner knew about Mull's predicament with the Union before Lee's call, so that he was not taken by surprise. The evening before Mull had telephoned Turner and reported what had happened at the meeting of the Local's executive board that evening, before which Mull had appeared. At that meeting, after hearing some allegations against Mull and hearing Mull's denial, the executive board considered the matter in the absence of Mull and then, according to Mull's credited testimony, the chairman of the executive board instructed Mull to report to Business Agent Lee the following morning for reassignment to another job Another member of the Executive Board asked Mull, according to the latter's undenied testimony, why he did not take a transfer to some other job for 6 months and "work his way back to Turner if I wanted to be there " Mull told them that he would not accept the reassignment, that he would rather not be a member of the Union then be removed from his job with Turner Mull had served a 6-month probationary period as an applicant for memberhsip in the Union but had not yet been obligated as a member. He had been summoned to appear before the executive board because a fellow worker, one Joel Jones, had testified that Mull had told Jones he thought Lee and the Union's secretary-treasurer, Harper, were stealing money from the Local Both before the executive board and before me, Mull denied the allegation. Mull's lawyer subpenaed Jones to appear before me but Jones did not appear' No formal charges were filed against Mull before the Local or by the Local. Mull has not been admitted to membership in the Local and has not withdrawn his application for membership The Union's leverage has been applied to remove Mull from the Turner Company and from Charles E Turner In July 1967 Charles E. Turner had taken the initiative and signed an agreement with the Local which gave the Union exclusive referral (for 5 days) of new employees At the time he was negotiating this contract with Business Agent Lee, the latter and Turner agreed that Turner would keep one employee, Mull, and that he would obtain all his other employees from the Union At this time Turner discharged all his employees but Mull, and restaffed with referrals from the Union The record does not show how many employees were affected by this action When Lee told Turner that Mull was not "in" the Local, and was not eligible for employment by Turner until he came on referral from Lee, Turner knew that Lee and the Union had the muscle to enforce its decision to have Mull removed from Turner's employ. Only 7 months before that the Turner Company employees had struck on two jobs side by side in protest against nonunion contractors on the jobs. In a conversation on the jobsites Turner persuaded Lee to let Turner's employees on one 'The morning before the executive board meeting that night, Jones had told Turner he knew nothing of the details but knew the Union was calling Mull before the executive board At Turner's request Jones called the Union's financial secretary -treasurer and then reported to Turner that one Parker and another union member were going to testify against Mull Jones did not tell Turner that he, himself, would testify against Mull 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job return to work because the nonunion work the strike was protesting was not within Local 72's jurisdiction. Those employees returned to work. Turner was unsuccessful in persuading Lee to let the other job go forward, and as a result of the strike the Turner Company could not complete the job and it lost the contract So that when, some 7 months later, Lee told Turner that Mull was not "in" the Local and was not eligible for employment until he came on referral from Lee, Turner understood that if he continued to work Mull any longer, he would do so upon risk of a strike. Turner testified that he thought, after Lee's call, that he was compelled to discharge Mull or something would have happened. He said he would be in violation of his contract with Local 72' He testified also that "It 's common knowledge that you do not work union personnel and nonunion personnel on the same job"; that "Any time where you have a union job in progress that nonunion personnel will strike and put up a picket " Later Turner said, "When he said he couldn't work there, he couldn't have worked there as far as I was concerned I cannot run my Company with one man and I could not put myself in that position." " . there's several things that could have happened . They could have become conveniently ill, had a work stoppage - there's lots of things that can happen that can cost you untold dollars and not of a legal nature so to speak " "I can't say what they would or would not have done I did not test it and did not feel that I was in a position to test it " Turner testified that he terminated Mull on the knowledge and apprehension he had just described. Respondent contended Turner discharged Mull because Turner misinterpreted the contract with Local 72 I find upon the preponderance of the evidence that the Union caused Turner to discharge Mull to encourage Mull to put loyalty to the Union ahead of loyalty to Turner, and to teach Mull how to be a proper union member. The Union caused the discharge to encourage "membership" in the Union within the meaning of Section 8(a)(3) of the Act Thus Mull gave the executive board to understand that he put his loyalty to Turner ahead of any desire to belong to the Union; and the executive board and Lee were trying to get Mull willingly to accept " reassignment" to another job, which Mull refused, in order to break Mull's stronger loyalty towards Turner. Further, although the executive board never refused to accept Mull into membership, and in fact never officially charged him with anything because of his alleged accusations against Lee and Harper, it did penalize him for alleged accusations by causing Turner to discharge Mull. This was the Union's way of teaching Mull not to make accusations against union leaders and thus properly to prepare himself for union membership. Respondent Union contended that there was no violation of the Act because Mull was a supervisor and not an employee within the meaning of the Act. At the time of Mull's discharge the Turner Company was "between jobs" and had some four, five, or six employees. At the time of the hearing it had some 12 employees. Prior to the July '67 contract between the Company and the Union, Mull was the Company's foreman in charge of "outside," "field" employees. From the signing of the contract until late March 1968 Mull was an employee and not a foreman or supervisor. During 2 weeks of this period, in February, he worked alone on a 'Actually the contract called for a nondiscriminatory referral system This contract is in no way a defense to Respondent's actions herein job, which did not make him a supervisor within the Act For about 2 weeks ending about the first week in April, Mull was foreman over a job with three employees under him On this job he performed manual work with his hands and tools. Thereafter before his discharge Mull worked on another job for 2 weeks under Foreman Billy Pitts Mull was not a foreman on this job At the time of his discharge Mull was on leave of absence for a week because of illness in his family. During that week, however, he worked I day for the Company on a job alone After executing the July 1967 contract with the Union, the Turner Company made payments on behalf of employees, including Mull, for various fringe benefits, including hospitalization insurance, health and welfare benefits, and retirement program. According to Mull's uncontradicted and credited testimony, the Turner Company had a policy and practice of paying all journeymen plumbers in its employ 35 cents an hour above journeymen's pay, and this equalled foremen's pay. Mull received this amount all the time he worked for the Company. So did Joel Jones, a relatively new employee of the Company who was not a foreman. It appears also that journeymen plumbers are permitted to drive Turner Company trucks between the Turner shop and the jobsite Nonjourneymen are on their own in getting to and from the jobsites unless they drive to they shop, leave their car, and ride to and from the jobsite in a company truck. Joel Jones, who was not a foreman, drove a company truck after he had been with Turner a short time. As Mull was a foreman on only one job for only about 2 weeks between July 1967 and April 26, 1968;3 as he received the fringe benefits other employees received under the union contract, and as he worked as a journeyman plumber for all his employment after the union contract, with the privileges the Turner Company gave to journeymen plumbers; I find upon these facts and the entire record that Mull was an employee and not a supervisor at the time of his discharge by Turner It follows from all the above, and upon the entire record considered as a whole, that Respondent Union caused the Turner Company to discharge Mull discriminatorily in violation of Section 8(a)(3), Respondent Union thereby violating Section 8(b)(2) and (1)(A) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Union set forth in section III, above, occurring in connection with the operations of the Turner Company described in section 1, above, 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 Respondent Union has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain 'I find that the supervisory duties Mull performed on this one job were irregular and sporadic and did not effect his "employee" status Cf Central New Mexico Chapter, 152 NLRB 1604, fn 10 LOCAL UNION NO. 72, PLUMBERS affirmative action designed to effectuate the policies of the Act. Respondent Union having caused the discriminatory discharge of Mull, it is recommended that Respondent notify the Turner Company in writing that it has no objection to the employment of Mull by that Company as either a journeyman plumber or as a supervisor, without prejudice to his seniority or other rights and privileges. It is further recommended that Respondent make Mull whole for any lack of pay he may have suffered by reason of its causing the discrimination against him, by paying to him an amount equal to that which he would have earned, but for Respondent's unlawful conduct, from April 29, 1968, the day Mull would have returned to work from his week's leave of absence but for his discharge, until the date the Turner Company receives Respondent's letter that Respondent has no objection to that Company's employment of Mull, less Mull's net earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in the manner established by the Board in F W Woolworth Company, 90 NLRB 289. The backpay obligation of Respondent shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co , Inc., 138 NLRB 716. I recommend further that Respondent reimburse Mull for any and all expenses incurred by him in seeking new employment between his discharge and the Turner Company's receipt of the Union's letter. The record showed that Mull has had several disagreements and disputes with Business Agent Lee since the contract was signed in July 1967. In view of Mull's past difficulties with Respondent Union, including those set forth in this Decision, as Mull filed the charge herein, and as Mull has not been admitted to membership in the Union, Mull's future job opportunities in his chosen occupation and field of competence must be protected As a means of protection I recommend that the Union deliver to the Board's Regional Director, for transmittal to Mull, for showing to prospective employers, a signed statement addressed to Mull stating that the Union has no objection to Mull's employment as a journeyman plumber or as a foreman or other supervisor because he is not a member of the Union and does not have a referral from the Union, and stating that Respondent Union will not, by any means direct or indirect, cause or attempt to cause any employer to refuse to hire Mull, to discharge him, or otherwise to limit his job opportunities 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. Charles E. Turner and Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local Union No 72, United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, is a labor organization within the meaning of Section 2(5) of the Act 3 By causing the Turner Company to discriminate against James D. Mull in the hire and tenure of his 'As the record showed there was some disagreement between Lee and the executive board as to what to do about Mull, this statement should be signed by both the chairman of the executive board and by Business Agent Lee. 215 employment, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and Section 8(b)(1)(A) 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 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that Respondent, Local Union No. 72, United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, its officers, representatives, and agents, shall 1 Cease and desist from (a) Causing or attempting to cause Charles E. Turner and Company, Inc , its officers, agents, successors, or assigns, to discriminate against its employees in violation of Section 8(a)(3) of the Act; (b) In any other manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2 Take the following affirmative action, which I find will effectuate the policies of the Act (a) Immediately write Charles E. Turner and Company, Inc., 2740 East College Avenue, Decatur, Georgia 30030, stating that it withdraws all objections to the employment of and to the working of James D. Mull without a referral from the Union; (b) Make whole James D. Mull for any loss of earnings he may have suffered by reason of the Respondent's causing the discrimination against him in the manner set forth in the section herein entitled "The Remedy", (c) Deliver to the Board's Regional Director for the Tenth Region, for transmittal to James D. Mull, a written statement signed by the chairman of its executive board and by its business agent, Marion A. Lee, stating that the Union has no objection to the employment of Mull by any employer as a journeyman or as a foreman or supervisor on the grounds that he is not a member of the Union and does not have a referral from the Union; and stating that the Union will not by any means, direct or indirect, cause or attempt to cause any employer to refuse to hire Mull, to discharge him, or otherwise to limit his job opportunities (d) Post in conspicuous places in Respondent Union's office or union hall, where notices to members are customarily posted, copies of the notice attached hereto as Appendix.' Copies of said notice, on forms provided by the Regional Director for Region 10 (Atlanta, Georgia) shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members and those who receive referrals from it 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, (e) Reimburse James D. Mull for any and all expenses incurred by him in seeking new employment between 'In the event that these Recommendations are adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 26, 1968, and the date of the Turner Company's receipt of the Union's letter provided for in subsection (c) above; (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to an Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that WE WILL NOT cause or attempt to cause Charles E. Turner and Company, Inc., or any other employer within our territorial jurisdiction, to discriminate against employees or prospective employees in violation of Section 8(a)(3) of the Act. WE WILL NOT in any other manner restrain or coerce employees or prospective employees of Charles E Turner and Company, Inc., or any other employee within our territorial jurisdiction, in the exercise of the rights guaranteed in Section 7 of the Act WE WILL make whole James D. Mull for any loss of pay he may have suffered as a result of our causing his discriminatory discharge WE WILL notify, in writing, Charles E. Turner and Company, Inc., that we have no objection to the 'In the event that these Recommendations are 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 " employment of James D Mull by that Company, as either a journeyman plumber or as a foreman or supervisor WE WILL deliver to the Board's Regional Director for transmittal to James D. Mull, a written statement signed by the chairman of the executive board and also by our busienss agent, Marion A. Lee, stating that we have no objection to the employment of Mull by any employer as a journeyman or as a foreman or supervisor on the grounds that he is not a member of our Union and does not have a referral from us, and stating that we will not by any means, direct or indirect, cause or attempt to cause any employer to refuse to hire James D. Mull, to discharge him, or otherwise to limit his job opportunities Dated By LOCAL UNION No. 72, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING & PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA (Labor Organization) (Representative) (Title) 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 If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 526-5741, Area Code 404