Central Plumbing & Heating Co.

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H.D. McDaniel, Jr., and D .H. McDaniel, d/b/a Central Plumbing & Heating Company and Nolie J. Cochran. Case 26-CA-3292 October 29, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On July 10, 1969, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in certain 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 Decision and a supporting brief, and the Respondent filed a reply 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, the briefs, 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 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. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner. This case was tried at Magnolia, Arkansas, on May 15-16, 1969,' pursuant to a charge filed on February 25, and amended April 2, by an individual, Nolte J. Cochran, against H. D. McDaniel, Jr., and D. H. McDaniel, d/b/a Central Plumbing & Heating Company, herein called the Company, and pursuant to a complaint issued on April 18 and amended May 12. The sole issue is whether the Company discharged four employees on or about January 29 because they were not union members, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. 'All dates, unless otherwise indicated, are in 1969 Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE UNIONS INVOLVED The Company, a partnership with a place of business in Jonesboro , Arkansas , is engaged in the selling and installing of plumbing and heating equipment It receives annually goods and materials valued in excess of $50,000 from points outside the States in which its business and jobsites are located I find that the Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act, and that Locals 431 and 706, United Association of Journeymen & Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act II. THE ALLEGED UNFAIR LABOR PRACTICES A Discharge of Nonunion Employees In the fall of 1968, the Company began work on a housing project in Magnolia, Arkansas. Following its policy of not calling the union hall for qualified plumbers unless "we can't locate them otherwise," it employed a nonunion journeyman plumber, Henry Ford, as its superintendent over the plumbing work, and began paying $4.90 an hour (50 cents less than the $5 40 union scale in the area) for plumbers. Being unable to obtain nonunion plumbers who had State plumber's licenses, Ford hired unlicensed plumbers with limited experience and qualifications. The turnover was very high Among those hired were the four alleged discriminatees Clarence E. Morgan, hired early in November, worked both as a plumber and a pipefitter (installing gas lines). Although he had done plumbing work from time to time over the years, he had never served the 5-year apprenticeship, and was denied an examination for a journeyman plumber's license because of his inability to substantiate sufficient qualifying experience His son, Charles E Morgan, was hired January 11. He left his apprenticeship employment in Camden, Arkansas (where he was being paid $3 an hour as a third year apprentice), and went to work for the Company at the $4 90 journeyman rate without notifying the State Plumbing Division, with whom his apprenticeship agreement was registered. (Not being a master plumber, Ford was not qualified to sign an agreement for him to continue his apprenticeship training.) Robert A. Dixon, also hired January 11 at the full journeyman rate of $4.90 an hour, was 22 years of age and had done plumbing work only 4 months. He was not registered as an apprentice. The fourth alleged discriminatee was Nolie J. Cochran, an industrial worker who was on strike when hired on December 31 He had last worked as a plumber 3 1/2 years earlier, and had not kept up with the plumbing code requirements. His journeyman plumber's license had elapsed at the end of 1966 After working 3 weeks without a license, he was laid off (during the week of January 20) until his license was renewed. He obtained a temporary license on Wednesday, January 22, showed it to General Superintendent J. B. 179 NLRB No. 65 CENTRAL PLUMBING & HEATING CO. 423 Jones, and asked permission to return to work on Thursday Jones told him to wait until Monday, January 27, "because there was going to be some changes made in Central Plumbing and Heating " Meanwhile, inspectors on the housing project were complaining about the unsatisfactory workmanship being performed by Superintendent Ford and his crew. Finally, on January 21, the Housing Authority wrote the Company a letter, listing several deficiencies (unacceptable workmanship, inadequate supervision, delays, etc ) and advising: In consideration thereof, you are officially notified that effective 4:30 P M., C S.T , January 24, 1969, Henry Ford will not be permitted to perform any work on or supply any material to or perform any other service in connection with the construction of Project ARK 18-3 This letter is an official stop work order on all interior plumbing to become effective at 4 30 P.M , C S T , January 24, 1969, and will remain in full force and effect until such time as a qualified plumber acceptable to the Local Authority has been assigned to the project and reported for work On Friday afternoon January 24, Company Partner D H McDaniel went to the jobsite and notified Superintendent Ford that "the work was not acceptable to the owner and . . we were going to have to dismiss him and the entire crew " He asked Ford to make arrangements with General Superintendent Jones "to pay these people." Ford promised to do so, but did not (After Ford left, the petty cash fund of about $600 was missing ) Later that afternoon, some of the crew members talked to General Superintendent Jones about their jobs. He said he personally did not know, because it would be up to the new plumbing superintendent who was expected Monday He advised the employees to return then. When the employees reported on Monday and Tuesday mornings, Jones advised them that the plumbing superintendent had not arrived. On Wednesday morning, January 29, the new superintendent, Fred L. Mooney, discharged them The motivation for the discharge is in issue. B Stated Reason for Discharge Mooney, a master plumber, had worked as a plumbing superintendent for the Company for 7 years. He is a member of Local 431, the Plumbers Local in Jonesboro. Before leaving Jonesboro to take over the Magnolia plumbing job , Mooney selected four licensed plumbers, whom the Company had laid off about 3 weeks earlier, and one apprentice who was then working for the Company All five of them had worked for him before, and he considered them qualified to redo the work which would not meet inspection , and to perform the remaining plumbing work in a satisfactory manner. All five were members of Local 431. When Mooney arrived at the Magnolia project late Tuesday morning, January 28 , he inspected the plumbing for work which had to be redone. (Four members of his new crew, who arrived 2 days later, spent 3 weeks redoing the faulty plumbing work.) Mooney did not investigate to determine which, if any, of the nonunion employees on the job had performed satisfactory work. He had been told by Partner McDaniel to bring his own crew and that "there wouldn't be nobody here when I get here. They would all be laid off." However, he learned from General Superintendent Jones that the nonunion employees had come in earlier that Tuesday morning, wanting work. The next morning, January 29, Superintendent Mooney admittedly told members of the old crew that "the job had gone union" and, therefore, their services were no longer needed. (According to Clarence and Charles Morgan, Mooney asked if they were members of the union, and upon being told no, he responded, "Well, that is is," or "Well, that's it, boys ") When asked by company counsel why he told the employees the job had gone union, he answered, "To keep from telling them they were fired." In his pretrial affidavit (which was introduced into evidence by the General Counsel without objection), Mooney stated that the reason was "to get rid of the men because I didn't want to fire them," and that "I just wanted to get rid of them without hurting them and this is why I brought up the union bit " However, Mooney also stated in the affidavit, "I understand at that time that if the job was union, they would have to belong to the union to work on it, but I didn't tell them that." At the time of trial, there were three union plumbers and apprentices (two members of Local 431 and three members of the nearby Local 706 in El Dorado), and two nonunion laborers, on the fob C Contention of the Parties and Concluding Findings Relying primarily on the fact that Superintendent Mooney admittedly informed the nonunion employees that the job had gone union, and the fact that replacements selected by Mooney (a union member) were all union members, the General Counsel contends that the Company's "primary consideration in discharging the members of Ford's crew was the fact that they were not members of a labor organization " On the other hand, the Company contends that Partner McDaniel's decision to replace the crew "was motivated by legitimate economic considerations." Of course, if the members of the nonunion crew were denied continued employment by the new plumbing superintendent for the reason he stated, "the job had gone union," there would be a clear violation of Section 8(a)(3) and (1) of the Act But it was Partner McDaniel, not Superintendent Mooney, who had decided to replace the entire crew The attempt to operate the job nonunion had been a costly one, the housing authority had issued a stop-work order, and a bad situation had to be remedied. It seems evident that McDaniel was aware that Mooney would select members of his own union to do the work, but it is j ust as evident that McDaniel was seeking a new crew because of their ability to correct the botched job done by the nonunion crew and to please the project owner, rather than because of their union membership. When Superintendent Mooney arrived on the job, he had already hired a full crew, of present and laid-off company employees whom he knew to be qualified In hiring them , he was effectuating McDaniel 's instructions, and there is no showing that his selection was discriminatorily motivated. Then when he was confronted by members of the old crew (whom McDaniel had instructed Ford to discharge the week before), there was no showing that he had any need for additional plumbers - even if he had known which, if any, of them had not been responsible for the faulty work, or was qualified to do satisfactory work under proper supervision. (An investigation would have shown that the only one of the old crew - all paid as journeymen - who had a plumber's license was Cochran , who had been installing copper water tubing Ninety percent of the tubing was improperly installed , and had to be replaced.) 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under these circumstances, I find that the General Counsel has failed to prove that the discharge of the four members of the nonunion crew was discriminatorily motivated Inasmuch as Mooney's statement, that the job had gone union, was not alleged as a separate violation, and the General Counsel emphasized in his brief that the asserted discriminatory discharge of the four employees is the sole issue in the case, I do not rule on whether the statement - if properly alleged - would have been an 8(a)(I) violation requiring the issuance of a remedial order Accordingly, I shall recommend dismissal of the complaint in its entirety. CONCLUSIONS OF LAW The General Counsel has failed to prove that the Company violated Section 8(a)(3) and (1) by discharging the four nonunion employees Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I recommend pursuant to Section 10(c) of the Act, issuance of the following ORDER The complaint is hereby dismissed in its entirety