Local 373, United Assn. of Journeymen, Etc.

National Labor Relations Board - Board Decisions

Jun 15, 1962

137 N.L.R.B. 628 (N.L.R.B. 1962)

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for reinstatement of Broadway to his former or substantially equivalent position
(The Chase National Bank of the City of New York, San Juan , Puerto Rico, Branch,
65 NLRB 827 , 829), without prejudice to seniority and other rights and privileges,
and for making him whole for any pay losses by reason of the discrimination , within
the principles enunciated in F. W . Woolworth Company, 90 NLRB 289, and N.L.R.B.
v. Seven-Up Bottling Company of Miami, Inc., 344 U .S. 3,44.
Upon the findings above and the entire record , the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. By discharging Broadway because of his membership and activity in the Union,
Respondent discouraged membership therein by discriminating in respect to the hire
and tenure of employees , thereby engaging in an unfair labor practice within the
meaning of Section 8(a) (3) of the Act.
2. By ,the above, and by the conduct of Alva Ray, a supervisor , in interrogating
an employee concerning his affiliation and sympathy with the Union, in the manner,
circumstances , and context in which the same occurred , Respondent interfered with,
restrained , and coerced employees in the exercise of their rights as guaranteed by
Section 7 thereby engaging in unfair labor practices within the meaning of Section
8(a)(1) of ,theAct.
3. The foregoing unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
4. By the conversation of the general superintendent with Matthew Maxie as
heretofore found, Respondent did not engage in an unfair labor practice within the
meaning of Section 8 ( a) (1) of the Act.
[Recommendations omitted from publication.]
Local 373, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States
and Canada and Carleton Brothers Company. Case No. 2-CD-
219. June 15, 1962
DECISION AND ORDER QUASHING NOTICE
OF HEARING
STATEMENT OF TIIE CASE
This is a. proceeding under Section 10(k) of the Act following a
charge filed by Carleton Brothers Company, herein called Carleton,
against Local 373, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States and
Canada, herein called Plumbers or the Respondent, alleging that
the Plumbers unlawfully coerced Carleton and certain other em-
ployers with the object of forcing Carleton to change work assign-
ments from the employees of Orange and Rockland Utilities, Inc.,
herein called Orange and Rockland, to employees of Thomas J. Kemp-
ton, Jr., herein called Kempton. A duly scheduled hearing was held
before James J. Graham, hearing officer, on January 23, 24, and 31,
1962, at New City, New York. All parties appeared at the hearing
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing on the issues. The
rulings of the hearing officer made at the hearing are free from prej-
137 NLRB No. 80.
LOCAL 373, UNITED ASSN. OF JOURNEYMEN, ETC. 629
udicial error and are hereby affirmed. A brief filed by the Respond-
ent has been considered.
Upon the entire record, the Board makes the following :
FINDINGS OF FACT
1. Carleton Brothers Company, is a general contractor, and Thomas
J. Kempton, Jr., is a plumbing contractor. Both Carleton and
Kempton are engaged in the construction industry in the State of
New York and each of them annually receives supplies valued in
excess of $50,000 directly from out-of-state sources. We find that
Carleton and Kempton are engaged in commerce within the meaning
of the Act.
2. Plumbers and Locals 1566 and 1567 of the International Brother-
hood of Electrical Workers, AFL-CIO, herein called IBEW, are
labor organizations within the meaning of the Act.
3. The dispute.
The Work in Dispute
The dispute, which gave rise to this proceeding, arose at the site of
a new high school being constructed in the town of Orangetown, New
York. The building was being erected under authority of the Union
Free School District No. 8, Pearl River, town of Orangetown, Rock-
land County, herein called the School District. A number of con-
struction contractors were engaged by the School District, among
them Carleton, which performed certain general contracting work,
and Kempton, who contracted to perform certain plumbing work.
Included in Kempton's contract was plumbing and piping work from
within the building leading to certain meters. For work beyond the
meter locations, the following specifications issued by the School Dis-
trict applied to Kempton's contract :
a. This contractor shall (unless shown otherwise) terminate
the low pressure house gas piping at the meter location, make
meter loop and concrete support pad (not less than 6" above
finish grade).
b. This contractor shall make arrangements for the local gas
company to extend medium pressure gas service to meter location
and pay all necessary costs in connection therewith.
While his work was in progress, and shortly before July 17, 1961,
Kempton, pursuant to subparagraph (b) of the specifications, advised
Strobaeus, an official of the School District, to make application to
Orange and Rockland, the public utility local gas company, for in-
stallation and service of the necessary gas main. The utility company
was then to extend the necessary gas piping from its mains to the
building meters. On July 17, a foreman and a crew of four were
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sent by Orange and Rockland to the jobsite to do the required piping
installation.
It is this work-"the installation of piping and other necessary
work to connect curb boxes of the utility distribution mains to the
meters and regulators in building under construction"-that was in
dispute here.
The Claim Advanced by the Respondent and the Picketing
Kempton's employees are represented by the Respondent Local
373. He is a member of the Master Plumbers Association of Rock-
land County and Vicinity, and on March 15, 1955, the Respondent
was certified by the Board as collective-bargaining representative of
the following unit: "All journeymen and apprentice plumbers and
steamfitters employed by employer members of the Master Plumber
Association of Rockland County and Vicinity." At all pertinent times
there was a contract in effect, binding upon Kempton also, covering
these employees. The particular language upon which the Respond-
ent rests to support the claim which we are here examining reads :
... in order to avoid jurisdictional controversies with other
trades . . . [the Plumbers] will insist that the . . . [employers]
procure and embrace in their job contracts and specifications all
of the piping fixtures, appurtenances and appliances that are
necessary to make a complete plumbing and/or pipefitting in-
stallation and is hereby embraced in the following United Asso-
ciation jurisdiction of work.
. . . 24. All piping for artificial gases, natural gases, and
holders and equipment for same, chemicals, minerals and by-
products and refining of same for any and all purposes.
The employees of Orange and Rockland, to whom the disputed work
was assigned by that utility company, are represented by IBEW Lo-
cals 1566 and 1567 pursuant to a Board certification issued directly for
that unit on July 15,1953.
When the utility company workmen arrived at the jobsite on July
17 to install the pipeline from the mains to the meters, Palmer, busi-
ness agent of the Respondent, told Kempton that if Orange and Rock-
land installed the gas service, his, Kempton's, men would have to leave
the job. Palmer insisted that all the plumbing work on the site
belonged to his union and that Kempton should assign it to the Re-
spondent's members. Kempton did nothing to satisfy Palmer.
Kempton's employees, about five in all, thereupon left their jobs
about noon and did not return until July 19. In the afternoon of July
17, about two to four pickets, one of them Respondent's shop steward
(a Kempton employee), appeared with printed signs reflecting in the
caption : "This is no strike. UNFAIR to union labor. Help us win."
LOCAL 373, UNITED ASSN. OF JOURNEYMEN, ETC. 631
One entrance to the site was picketed on July 17 and both entrances
the next day. The pickets caused three trucks loaded with supplies
for Carleton to delay entering the site for several hours. On July 18,
all of the employees of the various contractors at the site, except the
Orange and Rockland crew, refused to cross the picket line. The
picketing ended on July 19 and the work was completed by the
Orange and Rockland employees without further incident.
The Contentions of the Parties
The Respondent argues that no jurisdictional dispute within the
meaning of Sections 8(b) (4) (D) and 10(k) of the Act is presented in
this record and that therefore the notice of hearing must be quashed.
More precisely, it contends that at no time did it seek to force Carleton,
which filed the charge, to change assignments from one class of em-
ployees to another. Instead, according to the Respondent, the dispute
here turns upon the propriety or impropriety of the contractual ar-
rangements entered into by Kempton and the School District with re-
spect to the plumbing work. To prove that this is all that the dispute
involves, the Respondent points to its contract with Kempton, set out in
pertinent part above, which provides that it could "insist that the
[employers, including Kempton] . . . procure and embrace in their
contracts . . . all of the piping fixtures, appurtenances and appliances
that are necessary to make a complete plumbing . . . installation."
Respondent asserts that this contract created an obligation-whether
or not enforceable under other provisions of law-upon Kempton not
to accept the type of construction contract he accepted in this instance.
Respondent argues that it was this contractual restriction upon Kemp-
ton's business operations which Respondent sought to enforce by its
demand upon Kempton and its subsequent strike action. It is for
this reason, the Respondent asserts, that it approached only Kempton
on the jobsite and not any other party.
Orange and Rockland and the IBEW, which represent its em-
ployees, contend that there is a jurisdictional dispute within the mean-
ing of the Act, but they do not explicate any exact theory of induce-
ment or coercion by the Respondent aimed at forcing any particular
employer to change work assignments. They also request that in any
event the Board rule that the Respondent is not entitled to the work.
Carleton, which initiated the proceeding and is the sole employer
whose work assignments Respondent is charged with having attempted
to change, expressed no clear position on the record. Likewise, Kemp-
ton, upon whom a demand was made, advanced no definite contentions.
Applicability of the Statute
According to the allegation set out in the charge the Respondent is
accused of causing a strike which had an object of forcing Carleton,
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of the contractors on the jobsite, to change the assignment of the
disputed work from Orange and Rockland to Kempton. The record
does not support the charge.
While the record does show a disagreement between Respondent and
Kempton regarding Kempton's alleged breach of their collective-
bargaining agreement, this is a matter outside the scope of the present
proceeding. The only jurisdictional dispute, if any, which is sug-
gested by this record relates to the assignment of the work in question
to employees of Orange and Rockland represented by the IBEW
rather than to plumbers represented by the Respondent. However, this
last question was not the issue framed by the charge, it was not liti-
gated at the hearing, and it therefore cannot constitute the essential
element of the case against the Respondent.'
Accordingly, as the record does not show a dispute within the mean-
ing of Section 10(k) of the Act between Respondent and Carleton,
the only issue which the formal documents called upon the Respondent
to litigate, we shall grant its motion to quash the notice of hearing.
[The Board quashed the notice of hearing.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Order Quashing Notice of Hearing.
'Local 4 50, International Union of Operating Engineers , AFL-CIO ( The Austin Com-
pany), 119 NLRB 1424.
Airesearch Manufacturing Company of Arizona , a Division of
the Garrett Corporation ' and International Union of Electri-
cal, Radio and Machine Workers , AFL-CIO, Petitioner. Case
No. 98-RC-957. June 15, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before J. W. Cherry, Jr., hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
I The name of the Employer appears as corrected at the hearing
137 NLRB No. 84.