Local 157, Plumbers

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 157, United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and L & K Contracting Company, Inc. and Local 204, La- borers International Union of North America, AFL- CIO. Case 25-CD-86 May 13, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to a proceeding under Section 10(k) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board on December 4, 1970, issued a Decision and Determination of Dispute' in which it awarded the work giving rise to the present controversy to employees represented by Local 204, Laborers International Union of North America, AFL-CIO, herein the Laborers, rather than to em- ployees represented by Local 157, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein the Respondent. The Board also de- termined that the Respondent was not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require L & K Contracting Company, Inc., herein the Employer, to assign the work in dispute to plumbers it represents, and ordered that the Respond- ent notify the Regional Director for Region 25, in writ- ing, whether or not it would refrain from such activity. On or about December 12, 1970, the Respondent notified the Regional Director that it would not refrain from engaging in such conduct.Thereafter, on Decem- ber 17, 1970, the Regional Director issued the com- plaint herein, alleging that the Respondent had en- gaged in, and was engaging in, unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(D) and Section 2(6) and (7) of the Act. Under the provisions of Section 102.50 of the Board's Rules and Regulations, Series 8, as amended, the Respondent, the Employer, the Laborers, and the General Counsel filed a joint motion to transfer pro- ceeding to the Board on February 1, 1971. The motion contains a stipulation that the charge, the complaint and notice of hearing, the Respondent's answer, the order indefinitely postponing hearing, the Board's Decision and Determination of Dispute, supra, the en- tire record made at the 10(k) proceeding, and our at- tached stipulation of facts constitute the entire record in this case, and that no further oral testimony is either necessary or desired. The parties also waived any fur- ' 186 NLRB No. 152. ther hearings before a Trial Examiner, the making of findings of facts and conclusions of law by a Trial Ex- aminer, and the issuance of a Trial Examiner's Deci- sion, and submitted the case directly to the Board for findings of fact, conclusions of law, and an order. On February 4, 1971, the Board granted the joint motion, and this proceeding was duly transferred to the Board. Thereafter, the General Counsel and the Respondent filed briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. Upon the basis of the aforesaid stipulation, the briefs, and the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER L & K Contracting Company, Inc., is an Indiana corporation engaged in the construction of heavy utility facilities- including water mains, gas mains, sew- ers, and underground power ducts, and is also engaged in railroad construction and maintenance. Its gross volume of business in 1969 was approximately $400,- 000. During that year it purchased goods and materials in excess of $50,000 from sources outside the State of Indiana. The parties stipulated, and we find, that L & K Contracting Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We further find that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Re- spondent Plumbers and the Laborers are labor organi- zations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES As noted above, the Board held in its Decision and Determination of Dispute, supra, that the Respondent was not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign to employees it represents the installation of mains and pipes, and other related work at the Em- ployer's jobsite in Greencastle, Indiana, and directed the Respondent to notify the Regional Director, in writing, with respect to its intention to comply with the Board's determination. Instead of complying with the determination, the Respondent on or about December 12, 1970, advised the Regional Director that it would not refrain from engaging in the proscribed activity. As the Respondent has not complied with the 10(k) deter- mination, we now turn to the merits of the complaint which, as we have indicated, is concerned with whether 190 NLRB No. 74. LOCAL 157, PLUMBERS 347 the Respondent has engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(D) of the Act. The evidence clearly establishes that the Respondent has engaged in unlawful inducement and threats with an objective of forcing the Employer to assign the dis- puted work to employees it represents, rather than to the Employer's own employees who are represented by the Laborers. Thus, as noted in the underlying 10(k) proceeding, Austin, the Respondent's agent, threat- ened to picket the jobsite on December 17, 1969, after he had learned that the employer had awarded the work in dispute to employees represented by the Labor- ers. Thereafter, the Respondent picketed the Em- ployer's jobsite from December 22, 1969, to January 13, 1970, and subsequently reinstated the picket line on April 16, 1970. Certain employees walked off the job on both occasions when the pickets appeared. In addition to picketing the jobsite, the Respondent by letter dated January 2, 1970, informed another employer, Terre Haute Water Works Corporation, inter alia, that "[W]e will continue to picket L & K Company on all jobs unless they recognize our rightful jurisdiction." By the foregoing conduct, it is evident that the Respondent induced employees to engage in a cessation of work, and that it threatened the Employer with a cessation of work, with an object of forcing the Employer to assign the disputed work to employees represented by the Respondent, rather than to those employees repre- sented by the Laborers. The Respondent's defense in the present proceeding is the assertion, originally presented in the 10(k) pro- ceeding, that the Board should defer to the award ren- dered in its favor by the National Joint Board for the Settlement of Jurisdictional Disputes. The Respondent argues that it and the Laborers have agreed to submit jurisdictional disputes of the kind herein to the Na- tional Joint Board for disposition, and that, therefore, the Employer is not presented with conflicting rival union claims. In support of this contention, Respond- ent relies on Plasterers Local 79 [Southwestern Con- struction Co.] v. N. L.R.B.z where the Court of Appeals for the District of Columbia Circuit held that the Board did not have the power to determine a jurisdictional dispute where the competing unions had agreed upon a voluntary method of adjustment, even if the employer involved had not consented to be bound by that proce- dure. Assuming arguendo that the Laborers did agree to submit the kind of dispute herein to the National Joint Board (a point not altogether clear on the record before us), we adhere to the view expressed in the underlying 10(k) proceeding that it is not controlling that the Re- spondent had, without consent of the Employer, sub- mitted the dispute to the National Joint Board, and ' 440 F.2d 174. that the National Joint Board thereafter issued an award favorable to the Respondent. We are mindful, of course, of the contrary view expressed on this issue by the court of appeals. However, with all due deference to the court, we do not believe that Congress intended for the Board to abdicate its responsibilities under Sec- tions 8(b)(4)(D) and 10(k) of the Act where, as here, the Employer has not agreed to be bound by the Na- tional Joint Board.' Accordingly, as we find no merit in the contention that the Board should defer to the award rendered by the Joint Board, we adhere to. our determination made in the 10(k) proceeding, and we conclude that the Respondent, by the conduct set forth above, has engaged in violations of Section 8(b)(4)(i) and (ii)(D) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of the Em- ployer, L & K Contracting Co., Inc., have a close, intimate, and substantial relation to 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 the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. By engaging in, and inducing or encouraging em- ployees of L & K Contracting Company, Inc., or of other persons 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 services; and by threatening, coercing, or restraining L & K Contracting Company, Inc., or other persons en- gaged in commerce or in an industry affecting com- merce where, in either case, an object thereof is forcing or requiring L & K Contracting Company, Inc., to assign the installation and laying of mains and pipes, and the performance of other related work at the jobsite ' See N.L.R.B. v. Local 825, International Union of Operating Engineers [Nichols Electric Co.], 326 F.2d 213, 216 (C.A. 3); Local 450, International Union of Operating Engineers v. Elliot, 256 F.2d 630, 635-636 (C.A. 5); and New Orleans Typographical Union No. 17 v. N.L.R.B., 368 F.2d 755, 763 (C.A. 5). 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Greencastle, Indiana, to employees represented by the Respondent, rather than to employees of the Em- ployer represented by the Laborers, where the L & K Contracting Company, Inc., is not failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, and upon the entire record in this case, the National Labor Relations Board hereby orders that the Respondent , Local 157, United As- sociation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, and its officers, agents, and representatives, shall: 1. Cease and desist from engaging in, or inducing or encouraging individuals employed by L & K Contract- ing Company , Inc., or by other persons engaged in commerce or in an industry affecting commerce to en- gage 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 L & K Con- tracting Company, Inc., 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 L & K Contracting Company, Inc., to assign the installation and laying of mains and pipes, and the performance of other related work at the jobsite in Greencastle, Indiana, to employees represented by the Respondent, rather than to employees of L & K Con- tracting Company, Inc., represented by Local 204, La- borers International Union of North America, AFL- CIO, unless L & K Contracting Company, Inc., is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work. 2. Take the following affirmative action , which the Board finds will effectuate the policies of the Act: (a) Post at the Respondent's business offices and meeting halls copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided In the event that this Order is enforced by a Judgment 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 JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE by the Regional Director for Region 25, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to members 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) Sign and mail sufficient copies of said notice to the Regional Director for Region 25 for posting by L & K Contracting Company, Inc., if it is willing, at all locations upon its premises where notices to its em- ployees are customarily posted. (c) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. NATIONAL LABOR RELATIONS BOARD." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in, or induce or encour- age individuals employed by L & K Contracting Company, Inc., or by other persons 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, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or threaten , coerce, or re- strain L & K Contracting Company , Inc., or any other persons engaged in commerce or in an indus- try affecting commerce, with an object of forcing or requiring L & K Contracting Company, Inc., to assign to employees represented by Local 157, United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, the work of installing and laying mains, pipes, and other related work at the jobsite in Greencastle, Indiana. LOCAL 157, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 157, PLUMBERS 349 AFL-CIO This notice must remain posted for 60 consecutive (Labor Organization) days from the date of posting and must not be altered, defaced, or covered by any other material. Dated By Any questions concerning this notice or compliance (Representative) (Title) with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, In- This is an official notice and must not be defaced by dianapolis, Indiana 46204, Telephone 317-633-8921. anyone.