Huxtable-Hammond Co., Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1969

174 N.L.R.B. 197 (N.L.R.B. 1969)

HUXTABLE-HAMMOND CO., INC.
Huxtable-Hammond Co., Inc . and Local Union 562,
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada and Walter Marks, Jr.
Cases 17-CA-3430 and 17-CB-579
January 23, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On August 5, 1968, Trial Examiner John F.
Funke issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in the unfair labor practices alleged in the
complaint and recommending dismissal of the
complaint, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision together with a supporting 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 and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner except as modified below.'
ORDER
Pursuant to the provisions of 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.
'In those sections of the Trial Examiner 's Decision entitled
"Conclusions" and "Conclusions of Law," the Trial Examiner
inadvertently referred to Respondent Huxtable-Hammond Co., Inc., as
"Furnco " We hereby amend those madvertencies by substituting for
"Furnco" the name of Huxtable-Hammond Co, Inc.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE , Trial Examiner : Upon a charge filed
in Case 17-CA-3430 on December 6, 1967, by Walter R.
Marks , Jr., herein Marks, against Huxtable-Hammond
Co., Inc., herein Huxtable, and upon a charge filed in
Case 17-CA-579 on December 6, 1967, by Marks against
Local Union 562, International Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
herein Local 562, the General Counsel issued complaint in
both cases and on January 31, 1968, issued an order
197
consolidating said cases and a notice of hearing.
The complaint in Case 17-CA-3430 alleged that
Huxtable violated Section 8(a)(1) and (3) of the Act by
discharging Marks because of his lack of membership in
or approval by Local 562.
The complaint in Case 17-CB-579 alleged that Local
562 attempted to cause and did cause Huxtable to
discharge Marks because of his lack of membership in
and approval by Local 562.
The answers of Respondents denied the commission of
unfair labor practices.
This proceeding, with all parties represented, was heard
by me at Columbia, Missouri, on July 9. At the conclusion
of the hearing the parties indulged in brief oral argument.
No briefs were submitted
Upon the entire record in this case and from my
observation of the demeanor of the witnesses while
testifying, I make the following
FINDINGS 'AND CONCLUSIONS
L THE BUSINESS OF HUXTABLE
Huxtable is a Kansas corporation engaged in the
construction industry as a general contractor with its
principal place of business at Kansas City, Kansas. During
a'representative year it performs services valued in excess
of $50,000 outside the State of Kansas. At all times
material herein Huxtable was engaged in the construction
of a pipe line for Panhandle Eastern Pipe Line Co., at
Centralia, Missouri.
Huxtable is engaged in commerce within the meaning
of the Act.
II. LABOR ORGANIZATION INVOLVED
Local 562 is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Huxtable, according to the testimony of Joe Burns, its
construction superintendent, started work on a piping job
for a water cooling system for Panhandle Eastern Pipe
Line at Centralia, Missouri, in June 1967,' and finished it
in November. Before the work started there was the usual
prejob conference with representatives of the various crafts
involved including Local 562. Mr. Huxtable and Burns
represented Huxtable and Virgil Walsh, business
representative, represented Local 562.
Huxtable and the Pipefitters International had entered
into an agreement entitled "National Construction
Agreement for the United States of America" on April 1,
1966, effective until March 31, 1968.2 The terms of this
agreement governed working conditions at Centralia. With
respect to hiring the Agreement provided, article V, as
follows:
'Unless otherwise noted all dates refer to 1967
'G. C Exh. 2.
174 NLRB No. 35
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hiring of Men
In hiring men, the Employer shall be the sole judge
of the number of men required.
The Employer agrees to be bound by the hiring
practices in the local area not inconsistent with the
terms of this Agreement.
The Employer shall notify the Local Union to refer
competent and skilled journeymen and apprentices.
The selection of applicants for referral to jobs shall
be on a nondiscriminatory basis and in accordance with
the President's Executive Order 10925, as amended, and
Title VII of the Civil Rights Act of 1964, and shall not
be based on or in any way affected by union
membership, bylaws, rules, regulations, constitutional
provisions, or any other aspect or obligation of union
membership, policy or requirement.
The Employer shall retain the right to reject any
applicant referred by the Union.
Men referred to the job shall report to an
employment office established for the job site.
Selection and employment of the required number of
apprentices and the administration of the local
apprenticeship system shall be governed by the terms
and procedure provided in the local agreement of the
local union having jurisdiction where the job is located.
The designation and determination of the number of
foremen and other supervisory personnel is the sole
responsibility of the Employer
The Union agrees to furnish at all times to the
Employer duly qualified journeymen and apprentices in
a sufficient number as may be necessary to properly
execute the work contracted by the Employer in the
manner and under the terms specified in this
Agreement.
In the event the local union is unable to supply
sufficient qualified and competent journeymen, the
Employer may request the United Association to
furnish such additional employees as it requires and the
United Association agrees to notify its local unions of
the availability of work and request the local unions to
refer journeymen to the Employer.
If, upon request, the local union or the United
Association is unable within 72 hours to supply
journeymen, including journeymen with special skills,
the Employer may secure journeymen from out-of-town
labor market areas.
Journeymen with special skills shall perform any
work coming within the coverage of this Agreement.
In the event of any conflict between the standards
and provisions of the. local agreement and this
Agreement, the provisions and standards set forth in
this Agreement shall prevail, except that local hiring
practices, as described in paragraph 17 hereof, shall
have priority.
It is not alleged that either this agreement or the
practice under it was illegal.
2. The discharge of Marks
Marks testified that he was a pipefitter welder and had
been one since 1950-51. He was a member of Pipefitters
Local 58 1 , Hannibal, Missouri.
On the evening of June 26 , he received a telephone call
from Charles Benny, business manager of Local 379,
Jefferson City, inquiring if he wanted work and if he
could pass the Panhandle Eastern test for welders Marks
answered both questions in the affirmative . Later that
evening he received a call from a Bob Johnson who told
him he was general foreman and steward on the
Panhandle Eastern job, asked him if he wanted work, if
he could pass the welder's test and if he was in trouble
with Local 562. Again Marks answered the first two
questions affirmatively, and, as to the third, said he did
not think so. He went to_ the jobsite the next morning
where he met Johnson and was introduced to Burns. He
signed the W-4 Form and waited for the welding
inspector. When the inspector arrived the test was set up
and Johnson started on it. About 9:30 Johnson came to
him and told him he would have to lay him off. Johnson
took him to the trailer where he told Burns to write his
check. Johnson told Marks when asked who told him to
lay him off said, "Well, it lays between Mr. Benny and
Mr. Walsh." After a brief discussion regarding pay he
was given 2 hours double time and 6 hours straight. He
had a 20-minute discussion with Burns before leaving the
jobsite in which they agreed they did not like the way the
discharge had been handled.
Joe Burns testified that he was superintendent at the
Panhandle project at Centralia from June until November
1967. When Burns and Mr. Huxtable had their first
conversation with Walsh at the prejob conference they
requested a general foreman and Walsh sent them one
Robert Johnson, who reported about June 1.3 Sometime
after he reported Johnson told Burns, according to Burns,
that he was shop steward for Local 562 but Burns also
testified that no shop steward was ever appointed at the
Centralia job Burns could remember that Marks came to
the jobsite and was hired but could not remember if he
had a referral slip. Shortly after his hire Johnson came to
Burns and told him he would like to have Marks
discharged, that "they dust wanted him off the job." After
some prompting, Burns admitted that Johnson told him
Marks was in trouble with Local 562 This occurred after
Johnson had received or made a telephone call from or to
an unidentified person. Johnson then brought Marks to
the trailer and Burns, after calling his office at Kansas
City and securing approval for the discharge, wrote out
his check.
During the examination of Burns, James R. Willard,
counsel for Huxtable made the following statement:
Our position [is] there was a request that came in that
the man not be retained on the job, we were operating
under a hiring hall arrangement and a reasonable
request came through, we believe it came from the
Union and we don't know why, and we have no duty to
inquire why.
General Counsel then asked Burns if that was the
reason Marks was discharged and the answer was, "Yes."
On cross-examination Burns testified that Johnson did
not have supervisory authority as defined in the Act but
merely relayed orders to the men. Burns did regard
Johnson as his day-to-day contact with Local 562.
Virgil Walsh, called as a witness by Local 562, testified
that Johnson was not a member of Local 562, was not job
steward for Local 562 and was not authorized to speak for
Local 562. He did, however, send Johnson out when
Huxtable requested a foreman. On the day that Marks
reported for work as a welder Walsh received a call from
Johnson and he asked Johnson why he (Walsh) had not
had an opportunity to refer a man to the welder's job, an
opportunity Walsh stated was stipulated in the contract.
He denied telling Johnson that he thought Walsh should
'Johnson was not a member of Local 562
HUXTABLE-HAMMOND CO., INC.
be let go or that the termination of Walsh was discussed.
He did state that he would assume that following this
conversation Huxtable would let Marks go.
B. Conclusions
I think the issue as to whether the discharge of Marks
was lawful depends upon the construction of the
agreement between Huxtable and the International, supra.
The following clauses of said agreement clearly spell out
an "area preference" contract between the parties. These
read:
The Union agrees to furnish at all times to the
Employer duly qualified journeymen and apprentices in
a sufficient number as may be necessary to properly
execute the work contracted by the Employer in the
manner and under the terms specified in this agreement.
In the event that local union is unable to supply
sufficient qualified and competent journeymen, the
Employer may request the United Association to
furnish such additional employees as it requires and the
United Association agrees to notify its local unions of
the availability of work and request the local unions to
refer journeymen to the Employer.
If, upon request, the local union or the United or the
United Association is unable within 72 hours to supply
journeymen, including journeymen with special skills,
the Employer may secure journeymen from out-of-town
labor market areas.
While Local 562 was not a party to this agreement it is
clear from its terms that it covered local unions affiliated
with the International.
Without deciding peripheral issues, e.g., the agency
status of Johnson, I find that Local 562 protested the
employment of Marks because Furnco had not first
offered Local 562 the opportunity to refer a welder with
membership in Local 562. I find such a protest and the
consequent discharge of Marks by Furnco in response to
such protest lawful. In Local 542, International Union of
Operating Engineers, AFL-CIO (Ralph A. Marino,
General Contractor), 151 NLRB 497, 500, the Board
stated:
It appears to be a common practice (although not
necessarily a uniform one) for employers in the building
and construction industry to utilize the available local
supply for work to be performed in that area before
199
hiring help outside the area . Indeed construction unions
have been instrumental in establishing such a practice
and have themselves established certain areas of
jurisdiction among locals of the same International
Union and with other unions. We also note that Section
8(f)(4) of the Act gives recognition and approval to
such practice by providing that it is not an unfair labor
practice when an agreement between an employer and a
labor organization of which building and construction
employees are members, gives priority for employment
based upon length of service in the particular
geographical area. Thus, Congress has in effect given
its approval to a policy of giving priority to
employment to people already working in the area of
the work to be performed.
As we construe the hiring and referral clause to
require the Employer to utilize the union referral
system in securing employees for the work in that area,
the Union could, without violating the Act, properly
seek the discharge of the employees in question who
had bypassed the Union's referral system.
See also Building Material & Dump Truck Drivers
Local 420, 132 NLRB 1044; International Union of
Operating Engineers, Local 98 (Consolidated Gas &
Service Co.), 155 NLRB 850; Carpenters Local Union
No. 1849, 161 NLRB 424.
Contrary to the General Counsel I do not find that
Marks was discharged because of lack of membership in
Local 562 but because Local 562 was attempting to
protect the rights of its members in its jurisdictional
territory under the "Agreement" between Furnco and the
International.
Upon the basis of the foregoing findings and
conclusions, I make the following.
CONCLUSIONS OF LAW
1. Respondent Local 562 has not violated Section
8(b)(1)(A) and (2) of the Act.
2. Respondent Furnco has not violated Section 8(a)(1)
and (3) of the Act.
RECOMMENDATION
It is recommended that the complaint be dismissed in
its entirety.