Local 157, Plumbers

National Labor Relations Board - Board Decisions

Jul 28, 1966

160 N.L.R.B. 261 (N.L.R.B. 1966)

LOCAL 157, PLUMBERS 261
IT IS FURTHER ORDERED that, upon conclusion of such supplemental hearing, the
Trial Examiner shall prepare and serve upon the parties a Supplemental Decision
containing findings of facts upon the evidence received pursuant to the provisions
of this Order, conclusions of law, and recommendations, and that following the
service of such Supplemental Decision upon the parties, the provisions of Section
102.46 of the National Labor Relations Board's Rules and Regulations, Series 8,
as amended, shall be applicable.
Dated, Washington, D.C., Apiil 6, 1965.
By direction of the Board JOHN C. TRUESDALE,
Associate Executive Secretary
Local 157, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO and Midwest Homes, Inc., Charging Party,
and Modern House Facilities, Inc., Party in Interest . Case 25-
CD-53. Jv1,q 28, 7966
DECISION AND ORDER
On May 24, 1966, Trial Examiner George L. Powell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the Respondent and the General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
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 [Clialrmall McCulloch and Members Jenkins and Zagoria].
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 briefs, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
I The Tr al Examiner's Conclusion of Law No 2 does not specify that the Respondent
threatened, restrained, and coerced Midwest and the secondaiy employers in attempting
to accomplish its purpose It also faila to specify the employers whose employees were in-
duced and encouraged to engage in a strike or concerted refusal in the course of their em-
ployment to perform any services We thcief9re modify the Tinal Examiner s Conclusion
of Law No 2 to read as lolbme
"2 By engaging In a stake, and by inducing and encouraging employees of Alsi,,an and
Smith, Usrei and Sims. Roach and Roach and ]'rose Electric to engage in a sluice or
refusal to perform any se,iices in the course of their employment and bi threatening,
coercing and restraining Midwest Modern, Roach and Roach, Usrey and Sinis, and Alsman
and Smith with an object in each case of forcing or requiring Midwest to assign the
plumbing work done on its prebuilt units at its plant in Carlisle. Indiana, to members of
Its Union rather than members of Local 3010, United Rrotheihood of Carpenters and
Joineis Of America, AFL-CIO the Respondent has engaged in irnlair labor practices within
the meaning of Section 8(b) (4) (i) and (11) (D) of the Act "
we shall also revise the order and notice in ace i iance iiith this modified conclusion
of law
160 NLRB No 27.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Paragraph 1 should be deleted and the following paragraph
substituted :
["1. Cease and desist from engaging in or inducing and encour-
aging any individual employed by Alsman and Smith, Ussey and
Sims, Roach and Roach, Prose Electric, or by any other person
engaged in commerce or in an industry affecting commerce, to engage
in a strike or refusal in the course of his employment to perform any
services, or from threatening, coercing, or restraining Midwest, Mod-
ern, Roach and Roach, Usrey and Sims, Alsman and Smith, or any-
other person engaged in commerce or in an industry affecting com-
merce where an object thereof in either case is to force or require Mid-
west to assign the plumbing work done in its prebuilt housing units at
its plant in Carlisle, Indiana, members of the Respondent rather than
to employees of Midwest, who are not members of that labor organi-
zation, unless and until the Respondent is certified as the bargaining
representative of the employees performing such work."
[2. Substitute in the Trial Examiner's notice the following :
[WE WILL NOT strike or encourage the employees of Alsman
and Smith, Usrey and Sims, Roach Plumbing and Heating,
Prose Electric, or ally other employer engaged in the assembly
of prebuilt housing units manufactured by Midwest Homes,
Inc., to engage in a strike or a concerted refusal in the course
of their employment to perform services where an object thereof
is to force or require Midwest to assign the plumbing work per-
formed in its prebuilt housing units at Carlisle, Indiana, to our
members rather than to employees of Midwest Homes, Inc., who
were not members of our labor organization unless Midwest
Homes, Inc., fails to conform to an order certifying us as the
bargaining representative of the employees performing such
work.
[WE WILL NOT threaten, coerce, or restrain Midwest Homes, Inc.,
Modern Housing Facilities, Inc., Roach Plumbing and Heating,
Usrey and Sims, or Alsman and Smith, or any other employer,
with an object as set forth above.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding heard before Trial Examiner George L. Powell at Sullivan, Indi-
ana, on December 9, 1965,1 pursuant to a charge filed March 18, 1965, and a com-
plaint issued November 22, 1965, presents the sole question of whether a work
stoppage was a jurisdictional dispute and hence violative of Section 8(b) (4) (i) and
i All dates herein referred to the year 1965, unless otherwise indicated
LOCAL 157, PLUMBERS 263
(ii) (D) of the Act. Respondent 's Business Manager Osborn at the trial contended
that its primary purpose in striking was to compel a subcontractor to live up to its
contract and only secondarily did it want to represent the two plumber employees
of Midwest Homes, Inc., herein called Midwest.
Briefs were filed by the General Counsel and Respondent on January 13, 1966,
and January 7, 1966 , respectively . Respondent takes the position in its brief: (1)
that it had no picket against or dispute with Midwest Homes, Inc., but rather the
picket was against a subcontractor Roach Plumbing and Heating for violating an
agreement with Respondent; and (2 ) the question is now moot.
Upon the entire record in the case, including my observation of the demeanor of
the witnesses and after due consideration of the briefs filed by the parties, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
Through the credited testimony of President McKinley of Midwest, I find it to be
an Indiana corporation with its principle place of business at Carlisle, Indiana,
engaged in the manufacture and sale of prebuilt building units for residential, com-
mercial, and institutional use. During 1964 Midwest manufactured , sold, and shipped
from its Carlisle plant, finished products valued in excess of $50 ,000 to points out-
side the State of Indiana . During the same period, Midwest purchased , transferred,
and delivered to its Carlisle plant , goods and materials valued in excess of $50,000
which goods and materials were transported to said plant directly from States of
the United States other than Indiana.
I further find that Modern Housing Facilities , Inc. (herein called Modern), from
the credited testimony of McKinley, a member of its board of directors, is now
and has been at all times material herein an Indiana corporation with its principle
offices in Carlisle, Indiana. At that location, Modem is engaged in the sale , erection,
and completion on the jobsite of commercial buildings purchased from Midwest.
Since it commenced operations in August 1964, Modern has had gross income of
more than $750,000 of which more than $50,000 was derived from operations in
States other than Indiana. I also find that at all times material herein Modern,
through contractors and subcontractors, has engaged in the construction and the
erection of a nursing home in Sullivan, Indiana, herein called the nursing home job.
Midwest sold Modern between $130 ,000 and $140,000 worth of prebuilt building
units for this nursing home job.
I further find that Durel Roach and Murel Roach, a partnership doing business
as Roach Plumbing and Heating (herein called Roach), is engaged , and at all times
material herein has been , engaged as plumbing contractor in the construction of the
nursing home job for Modern in Sullivan, Indiana. The value of the contract
between Roach and Modern was approximately $5,000 . This finding is based on
the stipulation of the parties. Further the parties stipulated that the firm of Usrey
and Sims ( herein called Usrey and Sims ) did foundation and masonary work in the
construction of the nursing home job for Modern for a value of about $12,500.
Likewise, Raymond Prose, an individual doing business as Prose Electric , is engaged
as an electrical contractor in the construction of the nursing home job, the value
of this service being about $5,500. I find from the above that Midwest, Modern,
Roach, Prose Electric, and Usrey and Sims are now and have been at all times
material herein , each individually, employers engaged in commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
The pleadings further establish and I find that the Respondent is and has been at
all material times herein , a labor organization within the meaning of Section 2(5)
of the Act. t
II. THE UNFAIR LABOR PRACTICES
Pursuant to Section 10(k) of the Act, the Board issued a Decision and Determi-
nation of Dispute on July 1, 1965.2 It found that plumbers employed by Midwest
who are represented by Local 3010, United Brotherhood of Carpenters and Joiners
of America , AFL-CIO are entitled to perform all plumbing work on prebuilt build-
ing units made by Midwest in its plant at Carlisle, Indiana It further found that
Respondent is not entitled to force or require Midwest to assign any of this work
2 Local 157 , United Association of Journeymen and Apps entices of the Plumbing and
Pipe Fitting Industry of the United States and Canada. AFL -CIO (Midwest Homes, Inc.),
153 NLRB 1184.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees represented by Respondent. It gave Respondent 10 days within which
to notify the Regional Director for Region 25 whether it would or would not
refrain from forcing Midwest by means proscribed by Section 8(b) (4) (D) of the
Act to assign the above-described work to Midwest's employees represented by
Respondent.
By letter dated July 7, 1965, Respondent, over the signature of its Business Man-
ager Grover C. Osborn, wrote the Regional Director claiming that it "did not and
will not force" Midwest to assign plumbing work done by its employees to members
of Respondent. But, it also stated in the letter that it had a standard agreement with
local contractors which it "shall continue to enforce."
The compliance office of Region 25 notified Respondent by letter dated Novem-
ber 5, 1965, that its letter of July 7, above, "does not constitute compliance with the
Board's Decision and Determination of Dispute . . . as it is not a clear, unequivocal
statement of intent to abide by the Decision." The reason why it was unacceptable
was because the Board had decided in another case involving the same parties 3
that Respondent's attempt to enforce article XV of the contract referred to was
an unfair labor practice in violation of Section 8(b)(4)(i)(B) of the Act. Respond-
ent was notified in the same letter that a complaint would issue unless a proper
statement was submitted.
Respondent did not change its position and the instant complaint was then issued
on November 22, 1965.
Before setting out the facts of this case and deciding whether Respondent has
complied with the Board's Decision and Determination of Dispute, it is well in this
case, particularly because of the earnestness with which Respondent maintains its
position, to state again what is involved in a Section 8(b)(4)(i) and (ii)(D) com-
plaint case.
The substantive matter presented by this complaint proceeding is whether the
Respondent engaged in unfair labor practices within the meaning of Section
8(b) (4) (i) and (ii ) (D) by certain conduct occurring before the filing of the charge
on which the complaint is based. Section 8(b)(4)(i) and (ii) (D) alone defines the
unfair labor practice and it makes no reference to compliance. Such reference is
to be found in Section 10(k) which states, in relevant part, that "upon compliance
by the [Respondent] . with the [10(k)] decision of the Board . . . [the 8(b)
(4)(i) and (ii)(D)] charge shall be dismissed." Section 10(k) must be viewed as
a part of the whole procedural machinery prescribed in Section 10 for the preven-
tion of all unfair labor practices. The heart of this machinery is Section 10(b)
which provides for investigation of a charge and issuance of a complaintrbased
thereon by the General Counsel. For a charge alleging an unfair labor practice other
than one involving 8(b)(4)(i) and (ii)(D), if investigation discloses reason to
believe that it is true, formal proceedings are initiated by an unfair labor practice
complaint. For an 8(b) (4) (i) and (ii) (D) charge, Section 10(k) interposes an
intermediate formal step between the completion of investigation of the charge and
the issuance of a complaint based thereon. It provides for a hearing and a declara-
tory ruling by the Board on the question of legal entitlement to force or require
the work assignments involved in the underlying dispute, which is designed to facil-
itate settlement of the dispute and to obviate the need for further proceedings. If
the 10(k) procedure has failed to produce a settlement of acceptance by the parties
of the Board's determination of the underlying dispute, then the further proceed-
ings-the issuance of a complaint based on the charge followed by the traditional
procedure for determination and redress of all unfair labor practices-are spelled
out in,Section 10(b), not 10(k). Once the procedural conditions precedent to the
invocation of Section 10(b) have been met and a complaint has been properly
issued, the only substantive matter then to be decided in an 8(b)(4)(i) and (ii)(D)
proceeding is whether an unfair,labor practice was committed within the meaning
of that section as of the time alleged and, if so, what the appropriate remedy
should be.
As previously indicated, Section 10(k) requires that if the respondents have
complied with the Board's determination, the charge must be dismissed. Unlike other
complaint cases where the Board's decision is implemented by a remedial order
3Local 157, United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada, AFL-CIO (Midwest Hoines, Inc.),
155 NLRB 16 Board Decision Issued October 1, 19G5, adopting Trial Examiner Sidney
Sherman's Decision of July 22, 1965
LOCAL 157, PLUMBERS 265
which is subject to judicial review or enforcement, this is the only sanction support-
ing the Board's interim declaration of the rights of the parties. It is clear, therefore,
that, before any consideration can be given to the merits of the alleged 8(b)(4)(i)
and (ii) (D) violation here, I must first decide whether the Respondent has com-
plied with the Board's 10(k) determination.
The Board has held that:
the minimal requirement for a finding of compliance with a 10(k) determi-
nation ought to be a manifested good-faith intent by the particular respondents
to accept and abide by the Board's determination and to refrain then and in
the future from doing that which the determination has stated may not right-
fully be done. It should include performance by the respondents of substantially
the same kind of acts as would be required for a showing that they were intend-
ing to abide by a remedial order of the Board, such as indicating a willingness
to confer with the Regional Director regarding implementation of their avowed
intent to accept the Board's determination, furnishing appropriate notices to
employees and/or the particular employer, if considered advisable by the
Regional Director, and giving such additional assurances as the Regional
Director might require to insure adherence to the determination. We believe
that a refusal or unwillingness so to abide by and accept the Board's determi-
nation constitutes evidence of noncompliance warranting issuance of a com-
plaint. (Local 595, Iron Workers (Bechtel Corporation), 112 NLRB 812, 815.)
The Facts
As indicated above, this is the third time the facts in this controversy have been
heard at a hearing before the Board. As noted earlier, in Midwest Homes, Inc.,
153 NLRB 1184, a proceeding under Section 10(k) of the Act involving the same
parties took place and the Board made findings as to the object of Respondent's
picketing. In view of the difference of the nature of the two proceedings, I have not
treated the Board's findings in that case as res ludicata here, but I .base my findings
on an independent review of the record before me. See Worcester Telegram Pub-
lishing Company, 125 NLRB 759. Also in Midwest Homes, Inc., 155 NLRB 16 the
Board in, adopting the decision of Trial Examiner Sidney Sherman found the
Respondent involved herein to be in violation of Section 8(b)(4)(i)(B) of the Act
under the same factual situation as involved in the, instant proceeding. Additionally,
the parties in the instant case stipulated that the transcript ,in the case' reported at
155 NLRB 16 be received in evidence in the present case.
The facts based upon my independent review of the record before me plus a
review of the record before Trial Examiner Sherman,in 155 NLRB 16'are hereby
set out in summary form. ' I. -
Midwest prebuilds component parts of homes or buildings which are delivered
to jobsites for erection into a final structure. The size of the building is determined
on how many of these prebuilt component parts are put together.' These parts
are made on a production line basis with approximately 115 employees. As the unit
is completely, finished at the plant, all of The electrical work or plumbing work nec-
essary for the finished structure which has to be placed in the sidewalls of the struc-
ture, are built in the walls before the unit leaves the plant. Two of Midwest's
employees on the production'line do the plumbing necessary-referred to as rough-
in plumbing, which takes "probably from 2 to 3 hours a day" of the employees'
regular work. These two employees are represented by the International Carpenters
and Joiners Local 3010 which represents all of the production employees. A
collective-bargaining agreement between Local 3010 and Midwest has been in effect
since on or about February 13, 1964, covering all production employees.
Midwest sells its prebuilt units to different building contractors and dealers who
tie the units together into a finished product at a jobsite. The plumbing, electrical
work, carpentry, and masonry work necessary to be done at the jobsite is done by
the purchaser of the unit or by his subcontractors. Midwest insists that union labor
be used at the jobsite if the builders wish to buy its products.
Early in 1965, Midwest entered into a contract with Modern to supply prebuilt
units for the nursing home to be erected by Modern at Sullivan, Indiana. Modern
in turn engaged various subcontractors to perform work at that site, including
Roach who was to make the plumbing connections.
Some of these subcontractors including Roach were performing work at the job-
site during the first days of March 1965. On Friday, March 5, Gayso, Respondent's
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job steward and an employee of Roach, told Modern's superintendent at the job-
site, Davidson , that Respondent would post a picket line at the site. On the same
day Gayso told representatives of two of the subcontractors on the job, Alsman and
Usrey as well ,as at least one of the employees that a picket line would be estab-
lished the next day. Picketing actually began on Monday , March 8, when Gayso
patrolled along the front of the jobsite with a sign bearing the legend "Unfair to
Local 157, Plumbers and Steamfitters ." Such picketing continued until on or about
April 21, when the sign was changed by inserting the words "Roach Plumbing and
Heating" above the existing language. Picketing continued thereafter until April 28,
when it was enjoined by a court order. During the period of picketing , Roach per.
formed no work at the jobsite . Operations of other subcontractors including Prose
as well as Alsman and Usrey were unaffected by the picketing except for a stop-
page by their employees on the first day of the picketing.
At the time in question Roach was bound by an agreement with Respondent in
which it was agreed in article XV that "the fabrication of all pipe stanchions,
knee braces , hangers, and /or pipe supports of any description shall be fabricated
on the job site or in the jurisdiction of the Local Union . Journeymen and Appren-
tice Pipe Fitters or Plumbers shall fabricate in the jurisdiction of the Local Union,
all pipe to be erected under the terms of this Agreement."
According to the credited testimony of Respondent 's President McKinley, Grover
Osborn, business manager of Respondent from time to time over the "past 5 years
or so" had had conversations with McKinley seeking to represent the two plumbers
at Midwest plant. As the production employees were represented by the Carpenters,
McKinley would tell him that he had to live by his contract with the Carpenters but
that he would be willing to meet with Respondent 's agents and the Carpenters "if
something could be ironed out." 4 McKinley further testified that "we were refused
plumbers on [other projects going on at the same time as the Modem project]
because-our builders were refused plumbers on those because of the pre -installed
Tough-in plumbing." McKinley further testified that at the time of the hearing "we
have a job going right now in Terre Haute , the same vicinity , and our builder up
there has been refused plumbers on the job. It's going on right now." Credited tes-
timony as set out by the record on this point is as follows:
Q. In any of these discussions with Mr. Osborn before March 5, 1965, state
whether or not Mr. Osborn requested representation for Local 157 Plumbers'
Union for plumbers in Midwest factory?
A. Yes. Mr. Osborn made that request to me.
Q. On more than one occasion?
A. More than one occasion , this is right.
Q. And can you tell the Trial Examiner about when such occasions took
place and what date, year?
A. Almost every instance this is our main topic . This has been our main
discussion with Mr . Osborn, has been just this, that Midwest Homes, as far
as our plant is concerned , is in his jurisdiction and that he 's entitled to have
his Local represent the plumbers in our plant , and we went through the same
discussion over and over again that we didn 't have any work for a full-time
plumber. Mr. Osborn's bone of contention has always been that his main con-
cern is that we don 't pay the rate that his plumbers are entitled to but we've
always went back to our conversations that we work 12 months out of the
year and we 'have a lot of benefits that his people do not have , and whether
we pay high enough wages or not is not his concern as far as I'm concerned,
and Mr. Osborn has told me that we were not going to get any help. He's
refused our builders help as far as Union plumbers is concerned on projects
for the same reason.
Q. Has he done this before March 5, 1965?
A. Yes, and after, and up as late as last week Wednesday. [Dec. 1, 1965.]
Q. What happened last week Wednesday?
A. Well, our builder up in Terre Haute was building some apartment units
up there, called up for some plumbers and he was told by Mr. Osborn that
there would be no plumbers out of his Local, they were not available for our
project.
4 General Representative Williams of the Carpenters credibly testified that Osborn told
him he wanted "what plumbing work there was in the plant "
LOCAL 15 7, PLUMBERS 267
Q. Was that a site that was supplied units from Midwest Homes?
A. We sold the units, that's right. So the builder comes back to us, as Mr.
Allison did, in this particular case and says, "Our job is in problems because
of this. Now, what do we do about it?" This is how Midwest Homes then
backs up and gets involved in it. Because our buyer comes back to us and says,
"Well, we can't get any plumbers on our job because you install plumbing at
your plant but its not permissible." It's not a question of whether we-That's
the only way we get involved with it as far as Midwest Homes is concerned,
the unit is sold when it leaves out the gate, but like any other company it is
our job to satisfy our customer.
On March 5, Richard Allison, president of Modern, telephoned McKinley when
Roger Mansard, Respondent's business agent, came to see Allison. McKinley went
to Allison's office where he and Allison were told by Mansard that the Sullivan
Nursing Home project of Modern would be picketed on the following Monday.
The parties stipulated: (1) that on March 5, John Gayso (Respondent's steward
and an employee of Roach) told a group of people including Paul Sims, Wilfred
Usrey, Russel Smith, Robert Alsman, and one of Sims' laborers that there would
be a picket in the morning on the Nursing Home job and the picket would be
for 7 days a week until the job was cleared of the trouble they were having and
for them to get their tools so they would not have to come back on the job; (2) that
Alsman and Smith employees did not work on March 6 although work had been
planned and Gayso was sitting in his car across from the jobsite; (3) that on
March 8 most of the subcontractors were at the jobsite but none wanted to go on
the job as they had been informed there was to be a picket; (4) that Prose took
material and men on the job whereupon Gayso picketed telling Prose he could not
go on the job; (5) that McKinley and five committee members came to the jobsite
where Gayso told McKinley "you are unfair," also that "I told Roach there was
no violations here on the job"; (6) that on March 8 the following subcontractors
and employees were scheduled to work and were at the jobsite but they did not
work that day; Sims and Usrey plus their employee Trueblood; the Roach brothers
plus employees Gayso and William Roach; and Alsman and Smith plus a hod
carrying employee and a blocklayer; and finally (7) that Howard McKinley, Dale
Sheffler, Lee Davidson, Raymond Prose, Burel Roach, Robert Alsman, John Gayso,
Roger Mansard, and Grover C. Osborn if called to testify would give the same
testimony as they gave in the hearing before Trial Examiner Sherman.5
Conclusions as to the Picketing
In view of the foregoing facts, I find consistent with Trial Examiner Sherman,
supra, that respondent picketed at the Nursing Home site in Sullivan , Indiana, not
because of any alleged contract violation by Roach, but solely because of Midwest's
steadfast refusal to recognize Respondent as the representative of Midwest's plumb-
ers, and the fact that Midwest's products were to be used at the Nursing Home
project.
Trial Examiner Sherman had this to say on this point (155 NLRB 16, 19) :
Respondent defends on the ground that the picketing was aimed at Roach
as the primary employer, and not, as the General Counsel contends, at Mid-
west. Even if, contrary to the conclusion reached below, it were found that
Roach was the primary employer here, that circumstance would not excuse
Respondent's warning on March 5 to Bennett, an employee of a concededly
neutral employer (Alsman), that a picket line would be established the next
day and to remove his tools. As such warning was manifestly intended to deter
Bennett from reporting for work, Respondent thereby violated Section 8(b)
(4)(i) and (ii)(B) of the Act. Moreover, as to the picketing, itself, even if
Roach were deemed to be the primary employer, the displaying of a picket
sign at the common situs for a period of about 6 weeks, which failed to dis-
close that Respondent's dispute was with Roach, suffices, to establish the ille-
gality of the picketing during that period.
In any event, the record shows, and it is found that the foregoing oral
inducement and the picketing from March 8 to April 28 [additional case
e The parties understood that I would follow the credibility resolutions of Trial Exam-
iner Sherman.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and argument set out] stemmed solely from Respondent 's dispute with Mid-
west over the representation of Midwest's plumbing employees , and that Mid-
west was therefore the primary employer here and Roach merely a secondary
or neutral employer.
With respect to the contract defense of Respondent, Trial Examiner Sherman
wrote in his decision:
In view of Respondent's apparently sincere conviction that article XV
affords an absolute defense to the instant charges, it may not be amiss to
comment on that provision, even though I do not deem it essential to the
disposition of this case.
At the threshold, there is a serious question whether article XV is applica-
ble at all to a situation where, as here, the work in dispute (the prefabricated
plumbing) was never subject to assignment by the signatory employer (Roach)
to his employees. Article III of the Respondent's contract with Roach specifies:
All wages and working conditions hereunder shall be effective on all plumb-
ing and pipefitting work performed by the Employer within the jurisdiction
of the Local Union where plumbing and pipefitting work is being performed
or is to be performed by the Employer. (Emphasis supplied.)
Obviously, the assembling and installation of the pipe in Midwest's pre-
fabricated units was not work that was being performed or that was to be per-
formed by Roach. And, the language of article XV, even if considered alone,
lends itself more readily to a construction that it was intended to apply to
work actually allotted to the signatory employer, than to a construction that
would reach work allotted to other employers. Indeed, the reading of article
XV which most readily suggests itself is that it merely required that any fab-
rication work for which he had contracted be performed by Roach either on
the jobsite or in a shop within the territorial jurisdiction of Respondent, and
that all such fabrication work be done by journeymen and apprentice pipefit-
ters or plumbers
However, it was. Osborn's contention at the hearing that, as applied' to the
facts of this case, article XV required Roach to fabricate all pipe installed in
the nursing home,. which necessarily precluded him from carrying out his sub-'
contract with Modern to hook up the pipe fabricated by Midwest. Even if this
were so, it is not clear how it would help Respondent; for, under Osborn's con-
tention, article XV would be a hot cargo clause, as it would have required
Roach not to handle Midwest's products. Enforcement of such a clause by
economic action is proscribed by Section 8(b) (4) (i) and (ii) (B), unless it
falls within the Board's definition of a "work-preservation" clause. So far the
Board has recognized as a valid work preservation 'clause only one which
unconditionally bars an employer. from diverting to others (e.g. by a subcon-
tract) work' which would otherwise have been assigned by him to his own
employees. . .. However, here Respondent clearly was not seeking to invoke
article XV.to prevent a diversion by Roach of work which would otherwise
have been assigned by him to his own employees, since the disputed work was
• never subject to assignment by Roach. . . . Moreover, even if one accepts the
construction placed on article XV by Respondent, one is at a loss to find therein
any unconditional requirement that all pipe erected at a particular project be
fabricated by Roach. Thus, Osborn testified initially that Roach had breached
his agreement , because it required that "all pipe to be installed will be fabri-
cated in the jurisdiction of the Local Union by members of the Local Union or
by employees represented by the Local Union." Later, Osborn related that he
told McKinley on March 8 that Roach's agreement with Respondent required
"job-site fabrication, required the prevailing rates to be paid for pipe that's
fabricated and installed within the jurisdiction." And, still later, when asked
what was meant by the phrase "in the jurisdiction of the Local Union," in
article XV, Osborn explained that this denoted the "trade," as well as the
geographical, jurisdiction of Respondent, adding that "trade jurisdiction" meant
"within the jurisdiction of the agreement, with the prevailing rate being paid
for that work."
While it is clear from Osborn's testimony that he would have considered
Roach to be in compliance with the contract if he had fabricated on the jobsite
all the pipe erected there, it may also be gleaned from his testimony, as quoted
above, that he viewed Roach's contract as permitting him to connect at the
LOCAL 157, PLUMBERS 269
jobsite plumbing which had been fabricated elsewhere, provided only that such
fabrication was done by employees affiliated with, or represented by, Respond-
ent or by employees who were paid the wages prevailing under Respondent's
collective-bargaining contracts.
In view of this, and as Mansard conceded, in effect, as already noted, that
Respondent's objectives in the instant dispute would have been achieved if
Midwest had entered into a contract with Respondent for its plumbers, I find
that, even under the construction propounded by Respondent, article XV did
not qualify as a work preservation clause, such as Respondent would be free to
enforce by economic action.
Accordingly, even if one were to disregard all the evidence of Respondent's
picketing objective, . . . and give full credit to Respondent's contention that it
was merely seeking to enforce article XV of its contract with Roach, and that
such clause was applicable here, it would be necessary to conclude that such
article was a hot-cargo clause, unlawful under Section 8 (e), and that Respond-
ent's attempt to enforce such clause violated Section 8(b) (4) (i) and (ii) (B)
of the Act
Discussion With Respect to the Contentions of Respondent
Respondent contends that it complied with the Board's "Decision and Determi-
nation of Dispute" issued July 1, 1965, reported in 153 NLRB 1184; and that the
case is moot.
Alleged Compliance
Dealing with the contention that Respondent has complied with the Board's
Decision and Determination of Dispute, the Respondent stated to the Region's com-
pliance officer its intention to continue to enforce its standard agreement. This
agreement is the one that Trial Examiner Shefman found contained an illegal hot-
cargo clause in the case reported at 155 NLRB 16, and noted above, which Respond-
ent has insisted all along justified its conduct in this case. This is not compliance.
Local 1291, ILA (Northern Metal Company), 142 NLRB 1228.
Further Respondent was clearly asked before issuance of complaint in this case
to supply an unqualified and unequivocal statement of the nature required by the
Board's Decision and Determination of Dispute (153 NLRB 1184). Respondent's
refusal to do so as well as the fact that just prior to the hearing in this case
Respondent was engaging in activities similar to those in this case established its
intention of not complying with the Board's Decision and Determination of Dispute.
The minimal requirements for a showing of compliance are (1) a good-faith
intent to accept and abide by the Board's Determination; and (2) performance of
substantially the same kind of acts as would be required for a showing that
Respondent intended to abide by a remedial order of the Board, such as indicating
its willingness to give such assurance as the Regional Director might require to
insure adherence to the determination. Respondent's adamant refusal to supply an
unequivocal statement of its intention to comply shows its lack of good faith intent
to accept and abide by the Board's determination. Local 595, Iron Workers (Bechtel
Corp.), 112 NLRB 812.
Alleged Mootness
Respondent's second contention that the case is moot likewise lacks merit for the
reasons that: (1) there is no evidence that the Union had abandoned its claim to
the work, or there is no evidence that it will not in the future take similar action to
force the employer to assign the work to its members and the employer's business
depends in part on the final resolution of the dispute, Engineers & Technicians
(Teleprompter Corp.), 95 NLRB 1470, 1479; (2) there is a fundamental unresolved
disagreement extending beyond the particular job involved, Local Union No. 48,
Sheet Metal Workers (Acousti Engineering of Alabama, Inc.), 119 NLRB 157, 161;
(3) there is a possibility that similar disputes may occur in the future as a result of
the continuing claim to the disputed work, Local 3, Electrical Workers, IBEW
(Western Electric Co.), 144 NLRB 1318, 1319 at footnote 1; (4) the dispute is of
long standing , McLeod v. Local 3, Electrical Workers, IBEW, 45 LRRM 2872,
2873 (D.C.S.N.Y.); and (5) the Respondent has not conceded that its strike activi-
ties constituted unfair labor practices. Longshoremen and Warehousemen , Local 16
(Juneau Spruce Corp .), 90 NLRB 1753, footnote 1.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion
In conclusion therefore, I find that Respondent has not complied with the
Decision and Determination of Dispute and that the controversy is not moot, and
that on the basis of the facts found by Trial Examiner Sherman above, as well as
on the evidence adduced at the instant hearings, Respondent violated Section
8(b)(4)(i) and (ii)(D) of the Act.
Concluding Findings of Fact
1. I find from the above facts that on or about March 5, 1965, Respondent by
his Agent Roger Mansard:
(a) Threatened, restrained, and coerced Midwest and Modern by telling McKin-
ley and Allison that the Nursing Home job would be shut down unless the plumb-
ing work done at Midwest's Carlisle plant was given to plumbers who were mem-
bers of Respondent; and
(b) Threatened, coerced, and restrained Roach by telling Roach that Respond-
ent was going to put a picket line on the Nursing Home job in Sullivan, Indiana.
2. I find that on or about March 5, 1965, Respondent by its Agent John Gayso:
(a) Threatened, restrained, and coerced Usrey and Sims, and Alsman and Smith
by telling said persons that a picket line would be established at the Nursing Home
job in Sullivan , Indiana; and
(b) Instructed, requested, and appealed to employees of Usery and Sims, Als-
man and Smith, and other persons to strike, and cease working for their employ-
ers, and refused to use, process, or otherwise handle or work on goods, articles,
materials, or commodities produced by Midwest by telling said employees that
Respondent would establish a picket line at the Nursing Home job in Sullivan,
Indiana.
3. I find that on or about March 8, 1965, and since that date the Respondent
did authorize, establish, and maintain a picket at the Nursing Home job in Sul-
livan, Indiana.
4. I find that pursuant to the conduct of Respondent described above, on or
about March 8, 1965, employees of Roach, Prose Electric, Usery and Sims, and Als-
man and Smith did engage in a strike and the refusal in the course of their employ-
ment to perform any work for their employers or to use, process , or otherwise han-
dle or work on goods, articles, materials, and commodities produced by Midwest,
and the employees of Roach have continued to engage in such conduct until the
date of the hearing.
5. I find that on or about March 8, 1965, Respondent by its Agent Grover
Osborn, threatened, coerced, and restrained Roach by telling Roach that it could
not work on the Nursing Home job in Sullivan, Indiana, because there was a picket
on that job and the picket would remain on the job until Respondent straightened it
out.
6. I find that an object of the acts and conducts engaged in by Respondent as
described immediately above is and has been to force or require Midwest to assign
the plumbing work on prebuilt building units manufactured in its plant at Carlisle,
Indiana, to employees who are members of, or represented by, Respondent rather
than to employees who are members of, or represented by, the Carpenters.
As noted above, on July 1, 1965, the Board acting pursuant to Section 10(k) of
the Act, issued a Decision and Determination of Dispute, wherein it determined
that Respondent was not entitled to force or require Midwest , by means proscribed
by Section 8(b)(4)(D) of the Act, to assign the plumbing work on prebuilt build-
ing units manufactured by Midwest in its plant at Carlisle, Indiana, to employees
represented by Respondent.
In conclusion I find that all times since July 1, 1965, Respondent has failed and
refused to comply with said Decision and Determination of Dispute issued by the
Board.
Accordingly I find that the Respondent violated the provisions of Sections 8(b)
(4)(i) and (ii)(D) and 2(6) and (7) of the Act by engaging in a strike and pick-
eting, the object of which was to force Midwest to assign the plumbing work of his
prebuilt units to employee members of Respondent rather than to employees who
were members of the Carpenters, when Respondent had no claim to this work based
upon a previous Board certification, or Board Order or a contract between it and
Midwest.
LOCAL 157, PLUMBERS 271
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the operations of employer set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead and have lead to labor disputes threatening commerce and
the free flow of commerce.
IV. THE REMEDY
It having been found that the Respondent violated Section 8 (b) (4) (i) and
(ii) (D) of the Act, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
2. By engaging in a strike and picketing with an object of forcing or requiring
Midwest to assign the plumbing work done on its prebuilt units at its plant in Car-
lisle, Indiana, to members of its Union rather than members of the Carpenters, the
Respondent has engaged in unfair labor practices within the meaning of Section
8(b) (4) (i) and (ii) (D) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I recommend that Local 157, United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, its representatives, agents, successors, and
assigns, shall:
1. Cease and desist from engaging in a strike and encouraging the employees of
Modern Housing Facilities, Inc., Roach Plumbing and Heating, Usrey and Sims, and
Prose Electric, and any other employer within the jurisdiction of Respondent, to
engage in a strike or a concerted refusal in the course of their employment to per-
form services, when an object thereof is to force or require Midwest to assign the
plumbing work done in its prebuilt housing units at its plant in Carlisle, Indiana,
to members of the Respondent rather than to employees of Midwest who are not
members of that labor organization, unless and until the Respondent is certified
by the Board as the bargaining representative of the employees performing such
work.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post in conspicuous places at its respective business offices copies of the
attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the
Regional Director for Region 25, after being duly signed by the official representa-
tive, shall be posted by the Respondent immediately upon receipt thereof, and
maintained for 60 consecutive days thereafter. Reasonable steps shall be taken by
the said Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the said Regional Director, in writing, within 20 days from the
receipt of this Decision, what steps it has taken to comply herewith?
IT IS FURTHER RECOMMENDED that unless the Respondent shall within 20 days
from the date of the receipt of this Decision notify the said Regional Director in
8 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words, "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
7 In the event that this Recommended Order is adopted by the Board, this provision shall
be modified to read : "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
writing that it will comply with the foregoing Recommendations, the National Labor
Relations Board shall issue an Order requiring the Respondent to take the action
aforesaid.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 157, UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT strike or encourage the employees of Modern Housing Facili-
ties Inc., Roach Plumbing and Heating, Usery and Sims, Prose Electric, or any
other employer engaged in the final assembly of prebuilt housing units manu-
factured by Midwest Homes, Inc., to engage in a strike or a concerted refusal
in the course of their employment to perform services when an object thereof
is to force or require Midwest Homes, Inc., to assign the plumbing work per-
formed in its prebuilt housing units at Carlisle, Indiana, to our members
rather than to employees of Midwest Homes, Inc., who were not members of
our labor organization unless Midwest Homes, Inc., fails to conform to an
order certifying us as the bargaining representative of the employees perform-
ing such work.
LOCAL 157, UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUS-
TRY OF THE UNITED STATES AND CANADA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its pro,
visions, they may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 633-8921.
Western Gear Corporation , Heavy Machine Division and Local
No. 8, Office and Professional Employees International Union,
AFL-CIO, Petitioner. Case 19-RC-3870. July 28,1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held at Seattle,
Washington, on March 9 and 22 and April 5 and 6, 1966, before
Hearing Officer John D. Nelson. Thereafter, the Petitioner and
Employer filed briefs. The Hearing Officer's rulings made at the
bearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Jenkins and Zagoria].
160 NLRB No. 25.