Central Plumbing & Heating Co.

National Labor Relations Board - Board Decisions

Oct 29, 1969

179 N.L.R.B. 422 (N.L.R.B. 1969)

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