Local 741, Plumbers

1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 741 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Stearns-Roger Corporation) and Dan- ny L. Harville. Case 28-CB-632 August 24, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 19, 1972, Trial Examiner Martin S. Bennett issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief; the Respondent filed limited exceptions and a supporting brief. The Respondent also submitted an answering 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 authority 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 briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Trial Examiner: This matter was heard at Tucson, Arizona, on January 11, 12, 13, 18, 19, and 20, 1972. The complaint, issued October 26, and based upon charges filed September 15 and October 15, 1971, by Danny L. Harville, an individual, alleges that Respondent Union, Local 741 of the United Association of Journey- men and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act.' Briefs have been submitted by the General Counsel and Respondent Union. A motion by the General Counsel to change "1971" to 1970" on page 214 of the record is granted. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent Union, Local 741 of the United Association of Journeymen and Apprentices, of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, is signatory to contracts with the following employers: (1) Stearns-Roger Corporation, a Colorado corporation and a general contractor, which annually receives in Arizona materials valued in excess of $50,000 shipped to it directly from points outside that State; (2) H. N. Sundt Construction, an Arizona corporation and a general contractor, which annually receives in Arizona materials valued in excess of $50,000 shipped to it directly from points outside that State; (3) Fluor Utah Engineers and Civil Constructors, Inc., a California corporation engaged as a contractor in the building and construction industry, which annually performs services valued in excess of $50,000 for customers outside that State; and (4) C. F. Opel, Inc., a Texas corporation engaged in the installation of pipelines, which annually receives in Arizona materials valued in excess of $50,000 shipped to it directly from points outside that State. I find that the operations of the above-named employers affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent Union, Local 741 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; the Issues The complaint alleges that Respondent Union refused to dispatch Danny L. Harville to various employers who are obligated to utilize Respondent's hiring hall with the objective of giving preference to members of Respondent who enjoyed longer membership than Harville, that Respondent requested Harville to permit himself to be so bypassed, that Respondent told a job applicant that members of Respondent would be given preference over other job applicants, and that Respondent told its members who were supervisors to give preference on jobs to members. Basic to the case is an appreciation of the following: The contract between Respondent Union and its signatory employers provides for the requisition of workers from the union-operated hiring hall and gives preference to men on the A list over those on the C list.2 To qualify for the A list, one must have worked for signatory contractors for "at least eight hundred (800) hours in each of the last three (3) consecutive years preceding the date of their current registration ... . As will appear, Harville's problem with Respondent I Originally consolidated with this matter was Case 28-CB-633 against the same Respondent. That case was settled during the hearing and a motion to sever was granted 2 A so-called B list is not involved herein 198 NLRB No. 155 LOCAL 741, PLUMBERS 1057 Union stems from the fact that he had worked for 800 hours in each of the three 12-month periods prior to his last registration, but that he had not been a member for 3 full years; namely, 36 months. Directly involved herein in behalf of Respondent Union are Business Manager Richard Lower and W. A. Simmons, a business representative beneath Lower, who does approximately 95 percent of the dispatching; both are elected officials. As will appear, Lower attempted to bend over backwards toward Harville whose competency is not in question and Simmons, acting with the executive committee of Respondent Union, in effect reversed his superior because of what appears to be factionalism in Respondent Union. Ruling was reserved at the hearing on a motion by Respondent Union that the various affected employers be joined herein as parties. There is no evidence of the filing of charges or the issuance of complaints against the latter and the motion is hereby denied. It may also be noted that there is some irrelevant and nondispositive testimony which is not treated herein as it is deemed extraneous to a resolution of the basic issue. B. The Harville Case 1. Sequence of events Danny Harville, a member of a sister local of Respon- dent Union in Texas, came to Tucson in September 1968. He promptly made an appearance at the hiring hall of Respondent Union on September 8, had his book inspect- ed by Business Manager Lower, signed the out-of-work list, and was referred to a number of jobs. He was admitted to membership in Respondent Union on January 22, 1970. Shortly after June 17, 1970, Harville appeared at the hall and signed up on the out-of-work list. Lower summoned him to the office, stated that he believed all local men, as contrasted with traveling nonmembers, should be on the A list, and told him he was therefore placing Harville on the preferential A list. Lower further asked Harville not to mention this transfer to other members as it might cause Lower some difficulty and, if this did leak out, Lower would take the position that Harville was on the A list under protest. Lower asked Harville to abide by one restriction; namely, that he, in the interest of fairness, should allow local members with more seniority to be dispatched before him .3 Harville was thereafter dispatched from the A list without event. Lower contended that Harville asked for placement on the A list; this I deem unnecessary to resolve. Lower also contended that from an examination of Harville's record, he concluded that Harville was indeed eligible for placement on the A list. While Harville's record with Respondent Union readily discloses that he was not then eligible for the A list, the simple answer, in the posture most favorable to the General Counsel, is that Lower decided to give Harville a "break" and put him on the A list. And in any event, the crux of the General Counsel's case is that Harville was subsequently removed from the A list. - ' According to Harville, various local members reminded him from time to time that he was improperly placed on the A list. On March 16, 1971, Harville signed up on the out-of-work A list; he was hospitalized on March 17 and was absent from work about 8 weeks . It is to be noted that as of March 17, the hours worked by him totaled as follows. He had worked more than 800 hours from September 1968 to September 1969, the same as of September 1970, and at least the same number of hours between September 1970 and March 1971. This is not disputed by Respondent Union which contends rather that, under the contract, Harville was not eligible for placement on the A list until his third anniversary date in September 1971. Harville reported to the hiring hall on May 25, 1971, after his convalescence, and was high on the out-of-work A list. Lower called him to the office, acknowledged that Harville was indeed high on the A list and explained that some older members were causing him, Lower, trouble over the matter and putting pressure on him. He stated, according to Harville, that he had placed him on the A list prior to his being eligible therefor and was now asking Harville to step aside during the dispatch. Harville acknowledged that he owed Lower a favor and agreed to do so. The basic premise of the General Counsel's case is that on this occasion and on a number of occasions thereafter, as documented by exhibits, A list members lower on the out-of-work list than Harville, but with greater seniority, were dispatched ahead of him. More specifically, on June 4, Lower asked Harville to decline a particular call. Harville refused, but his name was not called as the names were read out by Dispatcher Simmons . On June 11, a particular job was offered to anyone on the A list and Harville volunteered. Dispatcher Simmons then an- nounced that he was no longer on the A list and that he was at the top of the C list. Harville was ultimately dispatched to this job from the C list. According to Harville, Lower told him during this period that the local members objected to his placement on the A list because this would qualify a number of travelers for the same treatment. Harville admitted that he was restored to the A list around the end of September or the first of October, approximately 3 years after he first registered with the Union. The problem herein involves solely the interim period after May 1971 when Lower brought up the topic of his passing on the A list call and his placement on the C list in June. 2. Analysis and conclusions It would seem that Business Agent and Dispatcher Simmons did not enjoy the same ideology as his superior, Lower, and the testimony of Simmons is revealing herein. Simmons testified that he disagreed with the action of Lower in placing Harville on the A list and that he, 3 This meant that when Harville's name was reached on the out-of-work A list, he was to initially decline the assignment and permit the older members to bid first for thejob 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Simmons, had been questioned by various members concerning this action.4 Simmons checked the records, admitted to Harville that he had the necessary hours, and pointed out that he was short some months sufficient to make the full 3 calendar years. As Simmons put it, he learned that Harville had appeared before the executive board of Respondent which agreed with Harville's position.5 Immediately upon learn- ing this, Simmons went to a vice president of Respondent Union and had him call a special meeting of the executive board. Simmons brought in the record, convinced the board that he, Simmons, was correct, and was instructed to remove Harville from the A list. This caused the physical transfer of Harville on June 11, 1971, to the C list; although placed at the top of the C list, he was duly dispatched that day to a less desirable nonovertime job. According to Simmons, this type of transfer has taken place in a number of instances not specified herein; namely, Respondent Union has conclud- ed that men should be on the C rather than A list because of their not meeting the requirement of the contract-the 36 months plus the hours-worked requirement-and has so transferred them. The General Counsel contends that Lower placed Harville on the A list at a time when he perforce knew that he was not eligible for such placement, that by so doing Respondent has waived any defense predicated upon the contract language, and that its arbitrary action in returning him to the C list was therefore improper. I see no waiver principle herein. The fact is that Respondent reclassified Harville and the sole question is whether it did so for reasons forbidden under the Act. This presents for consideration the claim of the General Counsel that Harville as of right was entitled to placement on the A list in March 1971, prior to his removal therefrom. This is predicated on the fact that Harville had 800 hours in each of the 3 years of his employment but had not completed 36 months at the time of the alleged discnmina- tion. Uhile the ostensible political infighting by Simmons perhaps does not commend itself, this does not dispose of the problem. A faction in the Union believed, albeit for selfish reasons, that the contract should be construed to mean that 3 years meant 36 months. And, there is the testimony of Simmons that men had been similarly transferred from the A to the C list and this is not challenged. Stated otherwise, there was an arguable and supportable claim for either side. This is not necessarily to be equated with an unlawful discriminatory motive. That Respondent Union opted for one route rather than the other does not, as the General Counsel urges, perforce supply an unlawful motive. That Business Manager Lower generously attempted to aid an ostensibly competent worker does not legally amount to an estoppel from later asserting its construction of the contract. Indeed, even Harville at one point recognized in an answer that Respondent Union, by Lower, interpreted the contract to require 800 hours for "1,095 days." To sum up, a reasonable claim could be made for either interpretation. Respondent Union, yielding to pressure by various members and Simmons, decided to follow one plausible route. I do not equate this with unlawful motivation and conduct as alleged by the General Counsel and I find that Respondent's refusal to retain Harville on the A list after March 1971 did not violate the hiring hall provisions of the contract. I shall therefore recommend that this allegation of the complaint be dismissed.6 C. Other Allegations The foregoing findings dispose of the allegation that Respondent Union violated Section 8(b)(1)(A) of the Act by requesting Harville, in May 1971, to stand beside and permit members with more seniority on the A list to be dispatched first. The briefs of both the General Counsel and Respondent are basically devoted to the case of Harville treated above. The General Counsel did present certain relatively vague testimony in two other areas which are not adverted to in either brief. Initially, after the close of a regular meeting on the night of September 15, 1971, a special meeting was held for regular members only. According to member Alexan- der Eggert, not an easy witness to follow, Lower told them that many A men needed work and that members of Respondent Union acting in a supervisory capacity should endeavor to get rid of the travelers and make room for the A members. Harville also recalled such a meeting on September 15. His version was that Lower told them, inter alia, that supervisors should make room for local men because travelers were being used rather than local men and were thus accumulating hours toward qualifying for the A list.7 Lower's version differed. Respondent presented in evidence a telegram dated September 15 which Lower read to the meeting. This was from a contractor, Southern Mechanical Contractors, directing the repair of faulty work on a housing project. A special meeting had been called in connection with a dues increase and Lower utilized the occasion to read the wire. According to Lower, he explained to the members the seriousness of the wire, complained that supervisors were not checking out the men adequately and told them that if unqualified men were present on the job to eliminate them. He deplored the situation because this involved gas leaks in family housing and denied making any reference to giving preference to local men. Lower received substantial corroboration from Walter Veltman, a member of Respondent Union who was then serving as general foreman on this construction project. Veltman testified that on or about September 1 he complained to Lower that the workmen were not perform- ing the work to standards and that management was most unhappy with the qualifications of some of the men on the 4 Simmons normally handles the dispatch approximately 95 percent of grievance was mislaid and not processed The record will not support a the time finding of unfair representation and I place no reliance on this 5 According to Harville, the executive board told him that this decision Indeed, as noted, Harville is now back on the A list was up to the business agent 7 On occasions, various members are dispatched to jobs as supervisors 6 There is evidence that Harville grieved under the contract, but that his LOCAL 741, PLUMBERS 1059 project. He asked Lower to get those men off the job so his employer would not sue Respondent Union. Veltman also attended the September 15 meeting at which the wire was read. This wire, from Southern Mechanical Contractors, states as follows: GENTLEMEN: YOU ARE HEREBY DIRECTED TO REPAIR OR REPLACE AT NO EXPENSE TO THE UNDERSIGNED FIRM, ALL INFERIOR WORK PERTAINING TO THE HIGH PRESSURE GAS MAIN AND LATERALS ON THE SUBJECT JOB. FAILURE TO PREVENT ACCEPTABLE PLAN OF ACTION WITHIN 48 HOURS MAY RESULT IN ACTION BY THE FEDERAL GOVERNMENT. WE ARE UNDER DIRECTIVE FROM THE ARMY TO TAKE IMMEDIATE ACTION. WE WILL EXPECT REIMBURSEMENT FOR ALL MONIES EXPENDED ON CORRECTIONS PERFORMED TO DATE AS WELL AS ALL COSTS TO REPAIR DAMAGED STREETS, LANDSCAPING, AND ETC. WHICH MAY BE INCURRED. YOU ARE FURTHER INFORMED THAT SEVERAL HIGH PRESSURE LEAKS ARE SOMEWHERE OF THE VICINITY OF OCCUPIED UNITS AND AN EXTREME DANGER TO LIFE AND PROPERTY EXISTS. [SIC I Lower then told the assemblage that it was up to the individual supervisors on these projects to get nd of those not qualified to perform the work. Veltman was asked if anything was said about giving preference to local personnel. He replied that Lower said that he wanted the more qualified men to remain, local members or not. He later testified that qualifications was the sole test men- tioned as to who would be retained. Harville also admitted that Lower read a wire protesting inferior work on a project and demanding reimbursement for its correction. As noted, the testimony of Eggert, as well as the mode of his testimony, leaves something to be desired. Moreover, he partially admitted at one point that Lower did make reference to this problem on the particular project. Lower impressed me as a man hard pressed both by internal strife, as set forth above, and by the exigencies of this crucial development on the construction project. He was substan- tially corroborated as to his remarks by Veltman, then serving as a representative of management. Although the matter is not free from doubt, I credit Lower and Veltman as to the remarks made on this occasion and, upon a preponderance of the evidence, recommend the dismissal of this allegation. William Phillips, a pipefitter on the C list and on a travel card, testified that on September 8, 1971, he went to the hall believing that he was entitled to placement on the A list. Soon thereafter, he was placed on the A list and told that local members on the A list would go out first and traveling members would go out second. He was given a form, not in evidence, to sign. According to Lower, who placed this around September 3, Respondent experienced a problem at this time with many travelers signing the out-of-work list but not being present when the dispatch was made; indeed, he would then discover that they were out of the State. He obtained some signatures to a form, the details of which are not before me and which, according to Phillips, allegedly set up two orders of preference on the A list. There were complaints, charges were filed with the Board and within a day or two, Respondent Union abandoned this effort in its entirety. There is no evidence that a Board complaint ever issued. On this entire posture, this is viewed as inadequate and too insubstantial to support a finding adverse to Respondent Union and I shall recommend its dismissal.8 CONCLUSIONS OF LAW 1. Stearns-Roger Corporation, H. N. Sundt Construc- tion, Fluor Utah Engineers and Civil Constructors, Inc., and C. F. Opel, Inc., are employers whose operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 741 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union, Local 741 of the United Associ- ation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, has not engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: The complaint is dismissed in its entirety. 8 1 deem this as a technical violation at best which does not warrant an Order