Pipeliners Local 798

PIPELINERS LOCAL 798 523 Pipeliners Local Union No. 798, affiliated with United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO' (Henkels & McCoy, Inc.) and Billy Lambeth. Case 23-CB-1 195 February 22, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On November 22, 1971, Trial Examiner Joseph I. Nachman issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions, as modified herein,' and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint herein be, and it hereby is, dismissed. The caption of the Trial Examiner's Decision inadvertently referred to Respondent as "Pipefitters Local Union No 798" and set forth the case number as "23-CA-1195 " We hereby correct these errors As Union Business Agent Holloway, by withdrawing the demand for Supervisor Lambeth's discharge and assuring Project Superintendent Bir- mingham that Lambeth could remain on the lob, timely and effectively repudiated his allegedly unlawful acts, we find that the Respondent did not violate Section 8(b)(1)(B) of the Act. For this reason, we adopt the Trial Examiner's recommendation that this aspect of the complaint be dismissed See Columbia Typographical Union No. 101, International Typographical Union of North America, AFL-CIO (The Evening Star Newspaper Co.), 193 NLRB No 167 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner : This case tried before me at Houston , Texas, on October 14,' with all parties present in person or represented by counsel , involves a com- plaint2 pursuant to Section 10(b) of the National Labor Rela- tions Act, as amended (herein the Act), alleging that on or about June 10, Pipefitters Local Union No. 798, affiliated with United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (herein Respondent or Local 798), restrained and coerced Hinkels & McCoy, Inc. (herein the Company), in the selection of its representative for the pur- pose of collective bargaining and adjustment of grievances, by threatening the Company with trouble on its job unless it terminated the employment of Billy Lambeth, its Pipe Bend- ing Foreman, in violation of Section 8(b)(1)(B) of the Act. For reasons hereafter stated, I find and conclude that the complaint herein should be dismissed in its entirety. At the trial all parties were afforded full opportunity to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally on the record, and to submit briefs. Briefs submitted by the General Counsel and Respondent, respectively, have been duly considered. Upon the pleading, stipulations of counsel, the evidence, including my observa- tion of the demeanor of the witnesses while testifying, and the entire record in the case, I make the following: FINDINGS OF FACT' The Unfair Labor Practices Alleged Shortly before April 26, the Company contracted to con- struct a 12-inch pipeline for Mobile Pipeline Company, run- ning from Livingston to Hull, Texas, a distance of about 75 miles. C. C. Birmingham was the highest company official regularly stationed at the worksite. Birmingham hired Lambeth, who was not a member of any labor organization, as Pipe Bending Engineer, and the latter hired his crew of eight men who were sent to him from the hiring hall of Operating Engineers and Laborers. In addition to Lambeth's crew, a crew of welders, who were members of Respondent, were also on the job, but not under Lambeth's supervision. Gerald Upton was a welder and Respondent's steward on the job. During the evening of June 9, Union Business Agent Hol- loway telephoned Company Superintendent Birmingham and admittedly told the latter that he had information that Pipe Bending Engineer Lambeth had at one time crossed a picket line established by Respondent, and that unless the Company removed Lambeth from the job there would be trouble. The following morning Birmingham telephoned his superior, Ar- thur Faust, at the Company's main office in Blue Bell, Penn- sylvania, and reported his conversation with Holloway. Faust told Birmingham to await further word from him before he took any action in the matter. After calling Faust, Birming- ham told Lambeth about the call from Holloway and ascer- tained from Lambeth that he had had some trouble about crossing a picket line on a fob in Dennison, Texas. Birming- ham assured Lambeth that he would take no action before hearing from Faust. During the day on June 10, Faust telephoned Charles Balch, an organizer with the International Union, and com- plained about Holloway's aforementioned action. Balch told Faust that the matter would be taken care of and that he should forget about it. Faust then telephoned Birmingham and instructed the latter not to take any action regarding the possible termination of Lambeth. During the evening of June 10, Holloway telephoned Birmingham again and told the latter that he had ascertained that the Lambeth employed by the Company was not the man he had in mind when he called the preceding day; apologized for the error; and stated that so far as Respondent was concerned it had no objection to Lambeth's continued employment on the job. Birmingham then telephoned Lambeth and told him that the problem had been taken care of and that he would continue on the job. At This and all dates referred to are 1971, unless otherwise stated 2 Issued September 17, on a charge filed June 22 and served June 23 ' No issue of commerce or labor organization is presented The complaint alleges and the answer admits facts which establish the allegations of the complaint in that regard I find those facts to be as pleaded 195 NLRB No. 100 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this point about two-thirds of the pipeline job had been com- pleted. The following day (June 11) both the pipe bending and welding crews reported for and worked the entire day. At the beginning of that day Birmingham directed his assistant, Ar- nold Sasser, to keep a close watch on the operations of both crews and to keep him (Birmingham) closely advised of any unusual event . Toward the end of the day Sasser reported to Birmingham that Welder's Steward Upton was insisting that "stabbing" and "carrying the line" were two separate jobs` and, while the Company was free to hire anyone it pleased to carry the line, it was contrary to the terms of the contract for the "stabber" to perform both jobs. This issue not having been resolved during the workday on June 11, Upton tele- phoned Union Business Agent Holloway that evening and told the latter that he had been permitting the Company to assign the "stabbing" and "carrying the line" to one em- ployee.' The evidence is uncontradicted that this was the first information Holloway had that the "stabber" was performing two jobs, and he directed Upton to see that the practice was immediately terminated. The following morning Upton again took up with Sasser the matter of the "stabber" performing two jobs, and stated that the practice would not be permitted to continue. Sasser then authorized Upton to call the union hall and obtain a journeyman who would perform the work of "carrying the line." While this was being arranged, Upton would not per- mit the bus which takes the men from the Company's ware- house to the worksite to leave, with the result that the men were approximately a half hour late in getting to work that morning. Later during the morning of June 12, Birmingham again telephoned Faust at the Company's office in Pennsylvania, telling the latter that he (Birmingham) was being generally harrassed by the Union, relating specifically the incidents about the bus being late leaving the warehouse; that he was forced to take on another journeyman to "carry the line"; and expressed his belief that unless some drastic action was taken regarding Lambeth the company would have trouble comp- leting the pipeline job. Faust told Birmingham that he wished to consider the matter and that no action should be taken until he called back. In a short while Faust telephoned Bir- mingham and directed the latter to remove Lambeth from the job.` Faust testified, and I have no reason to doubt his tes- timony in that regard, that he directed Lambeth's removal from the job because he was convinced that if he did not do so Holloway and Upton would cause trouble on the job. However, when Faust was asked if the problem about the The work of a "stabber" is to hold an end of a section of pipe while the welder welds it to the end of the proceeding section. "Carrying the line" means setting skids so that the pipe will fit the contour of ground and keep the pipe going in a straight line Upton's primary purpose in making this call to Holloway was to get the latter's assistance in settling a personal claim he had against the Company for damages to a truck Upton was renting to the Company, and in the conversation told Holloway that he had been permitting the "stabber" to also "carry the line " Holloway refused to become involved in Upton's personal claim, but directed the latter to see that the "stabber" did not also "carry the line " Faust also directed Birmingham to give Lambeth the choice of coming to Blue Bell, Pennsylvania, where the Company would give him work, at his same pay, that did not involve contact with Plumbers or staying home and having the Company continue his salary of $450 a week until the pipe bending portion of the job was completed. Lambeth elected to stay home and the Company paid his wages for 4 weeks The General Counsel con- tends that as part of the remedy here, Respondent should be required to make the Company whole for the $1,800 it paid Lambeth while not working on the job As I recommend dismissal of the complaint, I find it unnecessary to consider this contention "stabber," or the delay in the bus leaving the warehouse had any connection with Lambeth, he replied, "I can't say yes to that, because I don't know whether it did. I wish I did know." He also admitted that he simply assumed that the two matters might have some connection and, wishing to avoid possible trouble for his company, decided to let Lambeth go. Birming- ham testified that his reason for recommending to Faust that Lambeth be removed from the job was that he felt that Re- spondent would cause trouble which would impede or pre- vent its completion. He admitted, however, that no union official ever made a statement of that purport to him and that he assumed it from what he learned about Upton's conduct on June 11 and 12. Contentions and Conclusions There came to be no doubt Holloway's statement to Bir- mingham on June 9 that the Company would have trouble unless it removed Lambeth from the job would ordinarily be regarded as a violation of Section 8(b)(1)(B) of the Act, which makes it an unfair labor practice for a labor organization . to restrain or coerce ... an employer in selection of his representatives for the purpose of collective bargain- ing or the adjustment of grievances. That Holloway's statement to Birmingham, the Company's top official on the job, coerced or restrained the Company for a limited period of time, in the matter of the selection of its representative for the purpose of adjustment of grievances, is settled by Board decisions. Toledo Locals Nos. 15-P and 272 (The Toledo Blade Company, Inc.), 175 NLRB No. 173. However, before the employer took any action because of the Union's threat, Holloway on June 10 notified the Company that his objection to the employment of Lambeth voiced the preceding night was in error and completely withdrew that threat by telling Birmingham that Respondent had no objec- tion to Lambeth's continued employment by the Company as long as the latter so desired. Accordingly, on the authority of Columbia Typographical Union No. 101, 193 NLRB No. 167, to the extent that said decision related to The Washington Daily News case, I find and conclude that the complaint should be dismissed in its entirety. The General Counsel argues that Holloway's withdrawal of his objection to the Company's continued employment of Lambeth's was not in good faith and that Upton's insistence that the Company no longer require the "stabber" to "carry the line," and his conduct in delaying the departure of the bus on June 12 were simply other means by which the Union was pursuing its original objective of forcing the Company to remove Lambeth from the job. The short answer to this argu- ment by the General Counsel is that, if such was the Union's purpose, it was incumbent on him to come forward with evidence from which such an inference might legitimately be drawn. This, I find and conclude, the General Counsel failed to do. Birmingham admitted that the Union neither said nor did anything to indicate such a purpose, and Faust, when asked if the dispute about the "stabber" had any connection with the Union's withdrawn demand, answered that he did not know. Even assuming that both Faust and Birmingham entertained a good-faith belief that by Upton's conduct the Union was persuing its original objective of getting Lambeth off the job, such good-faith belief does not itself impose liabil- ity on the Union where such liability does not otherwise exist, nor is it a substitute for proof by a preponderance of the evidence, which I have found lacking here, that such was in fact the Union's purpose. Upon the foregoing findings of fact and the entire record, I make the following: PIPELINERS LOCAL 798 CONCLUSIONS OF LAW The General Counsel has failed to establish by a prepon- derance of the evidence that the Union engaged in the unfair labor practice alleged in the complaint, and said complaint should be dismissed. Upon the foregoing findings of fact, conclusions of law, and 525 the entire record in the case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I issue the following recommended: ORDER The complaint herein is dismissed in its entirety.