Plumbers Local 190 (United Engineers)

PLUMBERS LOCAL 190 (UNITED ENGINEERS) 147 Local 190, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting In dustry of the United States and Canada, AFL- CIO/CLC (United Engineers and Constructors Catalytic, Inc) and Stanley B Williams Cases 7-CB-7156(3) and 7-CB-7240 March 10, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On September 20, 1988, Administrative Law Judge John H West issued the attached decision The Charging Party filed exceptions and a support- ing brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed ' The Charging Party has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra live law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings Richard F Czubaj Esq for the General Counsel Victor L Graf Jr Esq (Hurbis & Graf), of Ann Arbor, Michigan for the Respondent John T Burhans Esq of St Joseph, Michigan, for the Charging Party the briefs filed by the General Counsel and the Respond ent, I make the following FINDINGS OF FACT I JURISDICTION The complaint alleges, the Respondent admits, and I find that at all times material Respondent and its in volved sister local, Local 513, have been labor organiza tions within the meaning of Section 2(5) of the Act Catalytic Industrial Maintenance Co, Inc (CIMCO), a Michigan corporation, and its parent, United Engineers and Constructors Catalytic, Inc (UNEC), which is a Pennsylvania corporation, have a maintenance contract with the Indiana and Michigan Electric Company for the Cook plant As pointed out by the General Counsel, the Board has exercised jurisdiction over the Indiana and Michigan Electric Company United Engineers and Con structors Catalytic, Inc is an employer engaged in com merce with the meaning of Section 2(2), (6), and (7) of the Act II THE ALLEGED UNFAIR LABOR PRACTICE A The Facts Carl Bowen, the site manager at Cook plant at Bridg man, Michigan, for UNEC, testified that under its main tenance contract at Cook with the Indiana and Michigan Electric Company, UNEC supplies the supervision, ad ministration, engineering, planning and labor to run the facility, that the contract has been in effect since 1985 and the present contract will be in effect until 1990 that in maintaining the equipment at Cook, UNEC uses pipe fitters and specialized welders which it obtains from the business agent (B/A) at Local 190, that when he requests referrals, occasionally he requests individuals by name that if the person referred has not worked at Cook in the recent past, there must be, inter alia, training, a physical and psychological test, a urine test, and a 5 year back ground investigation whereas if the person had worked at Cook in the last 6 months his records merely have to be updated, that he tries to send a letter to the B/A con firming that he has asked by telephone for a person by name ' that there may have been occasions when he did DECISION STATEMENT OF THE CASE JOHN H WEST Administrative Law Judge This case was tried at Benton Harbor Michigan on March 15 and 16 1988 The charges were filed by the Charging Party in the above described cases on April 13 and July 7, 1987, respectively A consolidated complaint was issued on August 24, 1987 The issue is did the Respondent vary from its well established hiring hall procedure in making job referrals to the Donald C Cook Nuclear Power Plant (Cook) in Berrien County, Michigan in vio lation of Section 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act (the Act) On the entire record, including my observation of the demeanor of the witnesses and after due consideration of ' GC Exhs 2(a) through (c) are three form letters dated November 14 1986 March 11 and April 27 1987 respectively As here pertinent the body of the letters reads Per our telephone conversation I am requesting (a specified number) Pipefitters by name As you understand Article II of the General Presidents Project Maintenance Agreement gives the Corn pany (Catalytic) the right to hire employees by name who have pre vious maintenance experience at Cook I am requesting these employees as follows By signing a letter from a National Labor Relations Board (the Board) agent dated May 19 1987 G C Exh 4 Bowen agreed with the observa Lion made therein by the Board agent namely I told you that I had found nine names of pipefitters/welders on your computer printout [G C Exh 3] who I did not recognize as being specifically requested by name in any call from you to Local 190 since September 1986 To check on this I read you the follow ing names D Alexander E Bondy R Daughtery T Desfosses H Fordham R Kline V Miller D Premo and D Thompson Mr Houck said that Daughtery and Kline had been requested by name Continued 293 NLRB No 14 148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not send a confirmation letter, that if Local 190 is unable to fill a request within 48 hours he can seek employees from other sources, that when a welder is referred out to Cook he must take a qualifying welding test to show that he can weld at the nuclear power plants, that if a man is referred out by Local 190 and fails the welding test, he is not then used as a fitter but rather he is just not hired that whereas, in the past, the welders would not be tested until they went to school for 5 days early in 1987 it was decided that in view of the number of people fail ing the welding test (breaking out) that the welders would take the test first and if they passed it they were sent to school, that if someone fails the test normally UNEC does not try to get him back at Cook for at least 6 months that he was aware that the charging party, Stanley Williams, failed a welding test at Cook but he did not know when 2 that he does not know what local the workers belong to but, rather he only knows that he gets them through Local 190, and that he had no idea what percentage of the men working for him at the time of the hearing were from Local 190 or Local 513 or some other local Claude Swigart, the business manager of Local 513 of the Plumbers and Pipefitters United Association testified that in 1972 jurisdiction of the Cook plant was trans ferred from Local 513 to Local 190,3 that there was a The two of you told me that neither of you could recall asking the Union to send you any of the other seven individuals by name The parties stipulated that E Bondy was referred by Local 513 after Local 190 could not find anyone And Bowen testified that Conger Houck s replacement also called Local 190 between April and August 1987 and asked for people by name and that the Board agent did not ask Conger if he had called Local 190 and asked for any of the above named individuals 2 Bowen sponsored a letter dated April 14 1987 (G C Exh 5) from CIMCO to the Board which states as pertinent Mr Stanley B Williams was employed as a pipefitter /welder from 6/25/85 to 6/27/85 Mr Williams did not pass the required welding examination for working with CIMCO at D C Cook Mr Stanley B Williams was laid off for failure to meet these requirements a Swigart sponsored a letter dated October 5 1972 (G C Exh 6) which is from the general president of the United Association of Plumb ers and Pipefitters to Local 513 which states Two years ago the United Association assumed jurisdiction over Donald Cook Nuclear Power Plant at Bridgman Michigan M J McCarthy was appointed as the United Association steward on the job In assuming jurisdiction over this project General Preseident Peter T Schoemann directed That Local Union 513 Benton Harbor Michigan be allowed to man the job and collect all travel card monies as long as they are guided by the appointed steward and are able to control the job to the extent that there will not be jurisdictional walk offs wobbles strikes or slow downs as per the terms of the National Construction Agreement On receiving a report that the United Association pipefitters had walked off this project on September 19 representatives of Local 513 representatives of Livsey & Co Inc the mechanical contractor on the job and M J McCarthy the United Associations steward on the job were requested to meet with Assistant General President Bradshaw in the general office Monday October 2 That meeting was held Based on what was developed at this meeting it is clear that 50 to 60 percent of the pipefitters employed on the job did walk off the job on September 19 that these wildcat pipefitters included members of Local 513 and al though told by the United Association steward to return to work they refused that the United Association steward was beaten up over a year ago and in recent weeks had received repeated threats on his life from anonymous telephone callers that these threats have come to the atten tion of officials of Livsey & Co Inc and they view them with alarm and that there have been several instances of tire slashings of United As sociation members on the job The evidence is that the walkoff on Sep project addendum agreement (G C Exh 7) which speaks to various aspects of the transition of jurisdiction from Local 513 to Local 190, that by letter dated March 31 1975 (G C Exh 8), he asked the general president of the United Association to return the jurisdiction of Cook to Local 513, that by letter dated May 1, 1975 (G C Exh 9), his request was denied, that by letter dated No vember 3, 1980 (G C Exh 10), he again asked the getter al president of the United Association to return jurisdic tion to Local 513, indicating, in part I am sure that when you changed jurisdiction on this job you did not intend that people across the state and out of state would man a job while area men were unemployed , that by letter dated March 22, 1983 (G C Exh 11) he asked the new general president of the United Association to return the jurisdiction of Cook to Local 513, that in all of his correspondence with the United Association he was never notified in writing, or even verbally that the geographic preference for Local 513 members referred to in the above described October 5, 1972 letter (see fn 3, supra), was either no longer in effect, or had expired on completion of the construction phase of the job, that he was never informed in his capacity as business manag er, either by the United Association or by Local 190, that any members of Local 513 who sought employment by contractors at Cook had to physically register at Local 190 s hall in Ypsilanti Michigan that from No vember 30, 1986 to when he testified on March 15 1988, he could recall only twice that the business agent from Local 190 called him about a referral to Cook that of the two calls, on the first, Local 190 called him to find out what his manpower situation was and on the second, Local 190 asked for a welder and he referred Eric Bondy, that with respect to his availability to receive calls for job referrals he has an answering machine that is on for 24 hours a day and if he is gone for an extended period of time he has a secretary answer the phone that the secretary has a phone number and referral lists, and tember 19 was in part a protest against the United Associations assump tion of jurisdiction over the job Local 513 s manning of this job was conditioned on its being guided by the United Associations appointed steward on the job and its ability to control the job and prevent walkoffs and strikes I find that Local 513 is not meeting these conditions and accordingly effective Tuesday October 3 1972 I am ordering and directing that the responsibility for manning this job be taken from Local 513 and assigned to Local 190 of Ann Arbor Michigan As the United Association s agent for manning the job Local 190 shall be entitled to collect and receive travel card dues due after this date No travel card dues however will be required to be paid to Local 190 by members of Local 513 In authorizing Local 190 to act as the United Associations agent on this job under which the United Association has assumed jurisdiction Local 190 s authorization is conditioned on the following I Local 190 shall in manning the job take whatever steps are nec essary to insure that United Association journeymen and apprentices who are bona fide permanent residents within the territorial junsdic Lion of Local 513 shall be provided preference in employment on this job 2 Local 190 s authorization to act as agent shall continue only so long as Local 190 is guided by the United Associations steward on the job and is able to control the job to the extent that there shall be no jurisdictional walkoffs wobbles strikes or slow downs as per the terms of the National Construction Agreement You are further advised until otherwise notified the wages terms and condtitions of employment presently in effect on the job will continue PLUMBERS LOCAL 190 (UNITED ENGINEERS) if she cannot contact him, she can refer people that he has never received a call from Local 190 for a referral to Cook when either refused or could not fill the request during the period involved here, that about 30 percent of Local 513 s 112 members are welders and the remainder are pipefitters that he received a copy of the following letter dated July 15, 1987 (R Exh 1), from the United Association to Local 190 4 The United Association recently received a report from International Representative Jack Wheatley concerning several disputes over referral practices at the DONALD C COOK NUCLEAR POWERHOUSE Specifically the question has been raised whether members of LU 513 should have preference over members of LU 109 for referal to the Cook Nuclear Powerhouse On 8/17/70 the United Association assumed ju risdiction of the Cook Nuclear Powerhouse pursu ant to the 8/4/70 recommendation of General Orga nizer Wendell J Straight Initially a United Asso ciation steward was assigned to represent the UA on a day to day basis at the powerhouse On 10/5/72, LU 190 (Ann Arbor, MI) assigned the re sponsibility for manning the work performed at the powerhouse At that time, LU 190 was instructed to give preference to those UA members permanently residing within the territorial jurisdiction of UA LU 513 The preference was based on bona fide perma nent residence and not membership in a particular local union This preference for local residents was for the initial construction phase of the powerhouse Recently there has been work performed under the General Presidents Project Maintenance Agree ment on the powerhouse and a question has arisen whether the residence preference is still in effect This is to advise that the preference on UA mem bers residing within the territorial jurisdiction of Local 513 was for the initial construction phase of this project only Therefore, LU 190 should refer em ployees for all UA work in accordance with the normal referral procedures within the collective bargaining agreement of LU 190 Swigart further testified that the initial construction phase terminated sometime in the mid 1970s, that this was the very first time that he had ever heard that the preferential hiring clause in the 1972 letter ended at the end of the initial construction, that he assumed that the preference went beyond the initial construction phase, that the hiring procedures set forth in the applicable Na tional Construction Agreement which was in effect at the time were modified by the above described October 5, 1972 letter, that when construction ceased the Nation al Construction Agreement (Jt Exh 2) also ceased and it was superceded by a new agreement, which was the General Presidents Maintenance Agreement (Jt Exh 1), that there is no hiring preference for Local 513 stated in the maintenance agreement that between March 1987 * As pointed out by the General Counsel this letter is dated after the original complaint in Case 7-CB-7156(3) was issued on May 29 1987 al leging that Respondent had changed its referral procedures 149 and March 1988 he usually carried about 10 welders on his out of work list (in other words the approximate 17 people on the list times the approximate 62 5 percent figure supplied by the witness), that he has one telephone and two telephone lines into his office, that there is no one in his office on a regular basis other than himself, that he has used a telephone answering machine for about 5 years, that he may occasionally not have turned on his telephone answering machine when he went to lunch and possibly at other times, that there have been occasions when people in the two other craft offices in his building have answered his phone and have taken messages, that during the last year several people have told him that they called his office and the phone just rings and no one picks it up that this occurs because a] though he has call waiting (the second line), when he is on long distance he will not answer the second line even though he hears the clicking and the person calling just hears the phone ring,5 that he does not keep a log of incoming and outgoing telephone calls, that there have been times when Local 190 called for help filling jobs at Cook and there probably have been times when he has had to tell Local 190 that he could not give them all the people they needed, that he did not keep a log of refer rals until January 1986 and the log or referral book does not cover referrals to Cook that while the maintenance agreement speaks to hiring procedures, it does not speak to the Local 513/Local 190 question that there is no ad dendum to the maintenance agreement which speaks to hiring halls or preference, that he has never sent Local 513 members to sign Local 190 s out of work list since he had no reason to do this, and he believes that for someone to get on Local 190's book, they have to show up physically at that local and that he could have called Local 190 and have had his out of work members put on its book to be sent out, and he could have sent his mem bers out with a travel card, that he believes that the proper procedure is that people in Local 190 who live in Local 513 s jurisdiction should be referred first then Local 513 members, and then Local 190 can go wherev er it wants to obtain the people needed, that he has never asked Local 190 what procedure it utilizes that his conclusions regarding what procedure Local 190 utilizes are based on conversations with people who are working on the job that it is possible that Local 190 has called him at home because they could not reach him at the office and that no one at the United Association told him that Local 513 s preference would be in effect until he was told otherwise The parties stipulated regarding Local 190 s telephone bills that there is nothing on the telephone bill relating to a call to Local 513 s office on March 30, 1987 or the im mediately preceding business day, March 27, 1987 that there is a call to Local 513 s office on April 24, 1987 5 Why he does not simply ask the person with whom he is talking long distance to hold for a second because he has someone else on the other line then depress the receiver tell the other caller he has a long distance call on the other line and he will return the call within minutes then de press the receiver again and resume his long distance conversation what has to be a reasonable approach under these circumstances was not ex planed on the record Perhaps he is not aware that with call waiting the first caller can be put on hold 150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and that there is nothing on the telephone bill relating to a call to Local 513 s office on May 4, 1987, or the imme diately preceding business day, May 1, 1987 Thomas Goettler , who is an executive board member of Local 513 , testified that in the summer or fall of 1987 he spoke with Jack Wheatley, who is a United Associa tion area organizer, that when he asked Wheatley about Local 513 members getting jobs at Cook, Wheatley asked him what he was talking about , that he told Wheatley that he had to go all over the country for work while people from all over the State and from out side the State were working at Cook , that Wheatley said that if he had his way people from Berrien County, where Local 513 is located , would be hired first, that Wheatley never said that the preference was lost when the construction was completed , and that as a member of Local 513 he was never told that in order to get work at Cook he would have to physically go to Local 190 s hall and register to work Bruce Towler, who is the business manager of Local 190, testified that his understanding of the October 5, 1972 letter, set forth above, is that during the construc tion of that job we would help put 513 members to work on the project", that despite his understanding that the preference expired at the end of the construction phase, he continues to follow the spirit of the letter up to the present that consequently the above described July 15, 1987 letter, indicating that the preference had expired with the construction phase , had no impact on his refer ral procedure , that under his referral procedure he goes to his out of work list and checks for people that live in Berrien County or in the jurisdiction of Local 513, that if he could not get ahold of the business manager of Local 513 , then he would go back to his out of work list and call members to see if they wanted to go to work at Cook, that if he could not fill the call off his out of work list then he would call the sister locals around Local 513 s jurisdiction for people that the reason he still fol lows the preference although not required to is because the people who live in Berrien County should have pref erence on the work at Cook, that he sent Williams to work at Cook three times and Williams worked for months the first two times before he was laid off and the third time he failed the welding test that it has been Local 190's policy that any member of the United Asso ciation, from any local can put his name on Local 190 s referral book that Williams could have done this and he would have been referred when his turn came that Wil liams could have shown up at Local 190 s office present ed his credentials and asked to have his name placed in the referral book, or he could, as others have done tele phoned Local 190 and had his name placed in the refer ral book that he referred Thompson to Cook on March 30, Alexander on April 27 Defosses on April 28, and Miller and Premo both on May 4, 1987 that these five individuals are all members of Local 190 who do not live in Bernen County on or in the territorial jurisdiction of Local 513 , that when he referred these people out to Cook he followed his normal referral procedure, which is described above, that his secretary was unable to get ahold of" Swigart when these referrals were made that while his staff people have told him that they could not "get ahold of Swigart, they have never indicated that they got an answering machine , that on more than one occasion he has tried to contact Swigart at his residence after business hours to get the names of people to be re ferred to Cook, that secretary Mary Beth Kantzler places about 99 percent of the outgoing business calls, that for April 24, 1987 , there is a line item entry on the telephone bill indicating that a call was made from Local 190 to Local 513, and that in his affidavit to the Board, dated April 23, 1987 , he indicated "I comply with the letter of 1972 ' Jack Wheatley, who is an International representative of the United Association, testified that before becoming an International representative he was the business man ager of Local 190, that he held that position during a part of the construction phase of Cook , leaving the post Lion in January 1975, that dunng the course of construc tion, jurisdiction for Cook was originally vested in Local 513, that the United Association took over jurisdiction about 1970, that the above described October 5, 1972 letter created the hiring preference for people who live in the terntonal jurisdiction of Local 513 , that the Octo ber 5, 1972 letter does not pertain to the General Presi dent s Project Maintenance Agreement (Jt Exh 1), and that under the General Presidents Agreement the con tractor can even refer by name members of the United Association at large Williams testified that he had been referred out to Cook three times by Swigart, that he is aware that Local 190 has jurisdiction over Cook , that he had no idea how Local 190's referral procedure works regarding Cook that he was not told and he never tried to sign Local 190's hiring hall book and be sent out to work and that it was his understanding that to get work at Cook he would register at his home local, Local 513 Kantzler testified that she places about 99 percent of outgoing calls at Local 190 that outgoing calls are not recorded anywhere except on the telephone bills, that in the year before the hearing , she attempted to contact Local 513 for Towler numerous times that two or three times a woman took a message for Swigart , that lots of times nobody answered the phone when she called Local 513 , that she never had an answering machine answer the phone when he called Local 513 that there is no notation on the phone bill when a long distance call is made and there is no answer on the other end of the line that she could place about 25 calls a day but she is not sure of the number, that she did not know how many calls she made to the Battle Creek, Michigan Local during the last year, and that because of the relationship between Local 413 and Local 190 regarding the Cook referrals she calls Local 513 considerably more than the other locals B Contentions On brief, the General Counsel contends that Respond ent varied its hiring hall procedures with respect to the DC Cook Nuclear facility during the period in ques tion namely, September 30, 1986, to May 8 1987 in that during this period, Respondent referred six individuals to the Cook facility who were not residents of the Berrien PLUMBERS LOCAL 190 (UNITED ENGINEERS) County area without first giving Local 513 an opportune ty to provide applicants for the jobs, qualified both by experience and residence, that the documentary evidence and the testimony of Local 513's business manager, Claude Swigart, clearly established the Respondent has, during the period in question, bypassed the established referral system for job vacancies at the Cook facility by ignoring qualified applicants who registered on Local 513's out of work list and instead referred its own mem bers out of turn, that Swigart is more credible than Kantzler because he readily admitted that on those occa sions when he was on a long distance call he would con sciously let a second incoming call go unanswered, how ever, that did not happen often, and if he did not answer calls as frequently as Respondent asserts, or did not turn on his answering machine as often as Kantzler testified, the members would have long ago removed him from office for malfeasance because their referrals rest solely on Swigart's availability and ability to receive incoming phone calls or messages, that judging by the thickness of the monthly phone bills presented to Kantzler during her cross examination, the number of calls she makes on a daily basis is considerable and she could not possibly re member how many or how often she was asked to con tact Swigart at Local 513 s offices, and that, on the other hand, Swigart easily testified that the number of times he was called by Towler with a referral to Cook was limit ed, in recent times, to the one time Swigart was able to refer Bondy in April 1987 Respondent, on beef, contends that there is no eve dence that the referral procedures have ever changed and neither is there any evidence that Local 190 has ever refused to refer any job applicant because of place of res idence or local union affiliation Assertedly there is no evidence from which an inference could be drawn that Respondent, Local 190 has committed any unfair labor practices in the operation of its hiring hall, and therefore these charges should be dismissed C Analysis The General Counsel concedes, on brief, that in order to find that Respondent bypassed the established referral system the testimony of Swigart must be credited over the testimony of Kantzler Actually it would be a matter of crediting his testimony over her testimony and that of 151 Towler as well Kantzler was merely carrying out the dictates of Towler If he told her to call Local 513, and placing telephone calls was one of her job functions, there is no reason given on this record why she would not attempt to comply with Towler s directive Both Towler and Kantzler testified that this is, in fact what occurred, she unsuccessfully attempted to contact Swi gart before the referrals in question were made On the other hand, there is the testimony of Swigart, that some times when he left the office he did not turn his answer ing machine on, that people have told him that when they call his office his phone j ust rings and no one picks it up, that when he is engaged in a long distance conver sation on his phone he will not answer his other line but rather he just lets it ring, and that sometimes people in other crafts in his building answer his phone when he is not in the office The General Counsel's position is that because the calls were not received, they were not made In view of the above described shortcomings in the ap proach taken by Swigart regarding incoming telephone calls to his office, there is no basis for reaching such a conclusion CONCLUSIONS OF LAW 1 Respondent and Local 513 are labor organizations within the meaning of Section 2(5) of the Act 2 United Engineers and Constructors Catalytic, Inc, and Catalytic Industrial Maintenance Co, Inc are an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 3 Respondent did not violate the Act as alleged in the above described consolidated complaint issued on August 24, 1987 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed6 ORDER It is recommended that the complaint be dismissed 8If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses