Local 476, United Association of Journeymen, Etc.

National Labor Relations Board - Board Decisions

Aug 18, 1959

124 N.L.R.B. 538 (N.L.R.B. 1959)

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 476, United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO , and its business agent, William O'Brien
[E. Turgeon Construction Co., Inc. ] and Rhode Island Chapter,
Associated General Contractors of America , Inc. Case No.
1-CC-P24. August 18, 1959
DECISION AND ORDER
On May 8, 1959, Trial Examiner Sidney Lindner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report, and a supporting brief.
The Board i has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
As found by the Trial Examiner, it is clear that the Respondent
Union and its agent, O'Brien, instructed its members, employees of
subcontractor Cuddigan, not to report to work on the Rhode Island
School of Design construction project after October 27, and thus to
engage in a strike. As further found by the Trial Examiner, the evi-
dence clearly establishes that the work stoppage was for the purpose
of compelling Cuddigan to cease doing business with Turgeon, the
general contractor on the project, because of Turgeon's refusal to hire
steamfitters to maintain temporary heat on the project. Accordingly,
we find, as the Trial Examiner did, that the Respondents violated
Section 8(b) (4) (A) of the Act by inducing and encouraging Cuddi-
gan's employees to engage in a concerted refusal to work on the Rhode
Island School of Design project with an object of compelling Cuddi-
gan to cease doing business with Turgeon.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Local 476, United Association of
'Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [ Members Rodgers, Jenkins,
and Fanning].
124 NLRB No. 75.
LOCAL 476, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 539
Journeymen and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO, and its business
agent, William O'Brien, their officers, agents, successors, and assigns,
shall :
1. Cease and desist from engaging in, or inducing or encouraging
the employees of Joseph P. Cuddigan, Inc., or of any other employer
to engage in, a strike or a concerted refusal in the course of their em-
ployment to use, manufacture, process, transport, or otherwise handle
or work on any goods, articles, materials, or commodities, or to per-
form any services, where an object thereof is to force or require
Joseph P. Cuddigan, Inc., or any other employer or person to cease
doing business with E. Turgeon Construction Co., Inc., or any other
company or person.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices and meeting halls copies of the notice attached
to the Intermediate Report marked "Appendix." 2 Copies of said
notice to be furnished by the Regional Director for the First Region,
shall, after being duly signed by the Respondents' representatives, be
posted by them immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter in conspicuous places in-
cluding all places where notices to members of Local 476 are cus-
tomarily posted. Reasonable steps shall be taken by the Respondents
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Furnish to the Regional Director for the First Region signed
copies of the notice attached hereto marked "Appendix" for posting
by Joseph P. Cuddigan, Inc., it being willing, at places where it
customarily posts notices to its employees.
(c) Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps each of the said
Respondents has taken to comply herewith.
2 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States 'Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon the duly issued complaint of the General Counsel and the answer of the
Respondents (Local 476, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, and
its business agent, William O 'Brien , herein called Local 476 and the Union and
O'Brien respectively), a hearing in this matter was conducted by the duly designated
Trial Examiner in Providence , Rhode Island, on February 17 and 18, 1959. The
complaint as amended at the hearing alleges in substance and the answer denies;
that since on or about and after October 28, 1958, the Respondents violated
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(b) (4) (A) of the Act by ordering, instructing, directing, and appealing to
employees of Joseph P. Cuddigan, Inc. (herein called Cuddigan), to refuse to work
or perform services on, or in connection with, the construction of the Rhode Island
School of Design (herein called School), the general contractor of which project
was E. Turgeon Construction Co., Inc. (herein called Turgeon), with the object of
forcing or requiring Cuddigan to cease doing business with Turgeon. All parties
were represented by counsel, were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue
orally upon the record, and to file briefs and proposed findings of fact and con-
clusions of law. Upon counsel's request an extension of time to March 30, 1959,
was granted, to file briefs. No briefs were received.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF TURGEON
E. Turgeon Construction Co., Inc., a Rhode Island corporation and a member of
the Rhode Island Chapter, Associated General Contractors of America, Inc., main-
tains a place of business and offices in Providence, Rhode Island, where it is engaged
in business as a general contractor in the construction industry. During the past year
Turgeon purchased materials and supplies valued at more than $4,000,000 of which
materials and supplies valued in excess of $850,000 were shipped directly to Turgeon
in Rhode Island from points outside the State of Rhode Island. During the same
period Turgeon performed work at places outside Rhode Island valued at above
$500,000. There is no dispute, and I find, that Turgeon is engaged in commerce
within the meaning of the Act.
H. THE RESPONDENTS
Local 476, United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, AFL-CIO, is a labor
organization within the meaning of the Act admitting to membership employees of
Joseph P. Cuddigan, Inc., a subcontractor of Turgeon.
Respondents' joint answer admits and I find that William O'Brien is business agent
of Local 476 and its agent within the meaning of Sections 2(13) and 8(b)(4) (A)
of the Act.
III. THE UNFAIR LABOR PRACTICES
In the fall of 1957, Turgeon, as the general contractor, began construction of
three dormitory buildings and a dining hall building for the Rhode Island School of
Design in Providence, Rhode Island. Cuddigan was the subcontractor on the School
project to install the heating equipment and apparatus.
The original specifications as drafted by the project architect and made a part of
the contract between the Rhode Island School of Design as owner and Turgeon as
general contractor contained the following clause with respect to "Temporary
Heat": I
The general contractor shall at his own expense provide temporary heat as
required for the proper protection and drying out of the work. The architect
shall be the sole judge as to the amount of beat necessary at all times. Tempo-
rary heat shall be provided when necessary to protect the work and when
directed by the architect.
By agreement between the parties an addendum to the original specifications
omitted the entire paragraph on temporary heat above quoted and replaced it with
the clause "temporary heat shall be provided by the owner."
The source of heat and hot water for all school buildings was the central power-
plant, about a block away from the new buildings. Underground lines from the
central powerplant were connected with other lines installed by Cuddigan, which
in turn ran into the buildings under construction. By turning a valve (one for heat,
the other for hot water situated 3 to 4 feet apart) in the building, and adjusting it
so that the correct amount of pressure was carried through the lines, heat came in
from the central powerplant.
1 Temporary heat is turned on to a building or to sections of a building before the heat-
ing system has been completed. Its purpose is to dry out the building and to provide a
degree of warmth so that the other craftsmen such as plasterers and carpenters can con-
tinue their work.
LOCAL 476, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 541
The collective-bargaining agreement between the Union and the Heating and
Piping Contractors Association of the State of Rhode Island, Inc .,2 in existence at
all times material hereto, relating to temporary heat contained the following clauses:
Article 10: Temporary Heat.
Section 1-Where the employer is to furnish temporary heat, it is under-
stood that the operation of the boiler and or the maintenance of such
system shall be the work of the steamfitter.
Section 2-The rate of pay for steamfitters employed on such work
shall be the prevailing journeymen 's rate.
Section 3-All steamfitters employed on temporary heat shall be paid at
this rate on a straight time basis.
William O'Brien, business agent of the Union testified that at about 10:30 a.m. on
October 24 , 1958, he visited the new dining hall building at the School project to
see if the buildings under construction were ready for temporary heat and to ascer-
tain what provisions had been made for maintaining the temporary heat in relation
to the above noted collective -bargaining agreement clauses regarding temporary heat.
O'Brien found William Skinner , foreman for Cuddigan , and a member of the
Union,3 and asked if any plans had been made for putting attendants on the job to
maintain the temporary heat. Skinner replied that so far as he knew it was not in
Cuddigan's contract and he did not know if it was in Turgeon 's contract.
O'Brien then talked with Jacob Nigohosian , job superintendent for Turgeon at the
School project, in the presence of Skinner , and inquired if Turgeon was going to hire
a steamfitter to maintain the temporary heat. Nigohosian jokingly said , "don't tell
me we have to put one on," to which O'Brien replied "yes." Nigohosian spoke with
Turgeon's main office and was told the matter would be handled there. O'Brien was
also informed that George Alfred Turgeon , also referred to as Fred Turgeon, presi-
dent and supervisor of all outside construction work for Turgeon would handle the
matter.
Fred Turgeon testified that between 2 and 3 p.m . that day, O 'Brien spoke to him
on the telephone at his office . Turgeon stated that O'Brien told him that mainte-
nance of temporary heat at the School project was "our work," and inquired if
Turgeon was going to hire a steamfitter for this job. Turgeon said "no " and told
O'Brien that this issue had been settled several years ago .4 O'Brien then told
Turgeon that he would have to remove the steamfitters from the School project, but
that he did not want to argue the point and would "let the body decide what their
course is going to be at a meeting the next Tuesday."
O'Brien 's testimony regarding the above -noted conversation accords with Fred
Turgeon 's in most respects . At one point O'Brien was unable to recall that he asked
Fred Turgeon to hire a steamfitter to take care of the temporary heat. At another
he denied that in the course of the telephone conversation , he made any demands on
Fred Turgeon . On cross-examination however, O'Brien admitted that the purpose of
his call to the School project was to see to it that steamfitters were hired to maintain
the temporary heat. Indeed, he also admitted that if steamfitters were hired to
attend the system while it was being used for temporary heat, the Union would not
have had a gripe, there would have been no reason to remove the men from the job,
and no dispute would have resulted.
At the Union 's executive board meeting on October 25, O'Brien explained in detail
the situation he encountered at the School project. After discussion a decision was
reached and entry of the same made in its minute book as follows:
The Executive Board met with Business Agent William O'Brien , Saturday,
October 25 , 1958, to discuss the situation that had arisen at the Rhode Island
School of Design job about maintaining the heating system with common steam-
fitters for temporary heat. After a careful and lengthy study was made of the
facts of this case , the Executive Board, along with Business Agent O ' Brien,
have decided that in order to protect the jurisdiction of this Local , we have one
alternative, to have the steamfitters working on Rhode Island School of Design
2 Cuddigan is a member of the Association.
The Union did not have a steward on the School project . In the absence of a union
steward the foreman, who as noted is a union member , transmits instructions from the
business agent to the union members on the job.
4 Turgeon had in mind an informal settlement agreement entered into between the
Union herein and its business agent , William O 'Brien, and the Rhode Island Chapter,
Associated General Contractors of America, Inc., and approved on August 10, 1956, by
Bernard L . Alpert, Regional Director of the Board in the First Region in Case No. 1-CC-137.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
project for the firm of J. P. Cuddigan Heating Contractor report for work at
the shop of J. P. Cuddigan instead of School of Design job until this can be
cleared up. This decision was made in view of the decision made by persons
unknown which deprives the members of Local 476 of the jurisdiction the Local
has had for many years.
It is significant that O'Brien never inquired of Turgeon (a party to the contract),
who ordered the change in the original specifications regarding temporary heat. This,
in spite of the fact that O'Brien admitted he "could have known" from his past
experience, that Fred Turgeon was the person who would have had a hand in
changing the original specifications.
At about 10:30 a.m. on October 27 O'Brien talked with Skinner, in the presence
,of Douglas Brunt, another Cuddigan employee on the School project and a union
member. O'Brien told the men that on the orders of the union executive board,
they were to make sure that everything was locked up and secured at 4:30 p.m. the
end of the workday; that they were then to leave the School job and not come back
until they heard from him. O'Brien told Skinner to make certain the two other
Cuddigan employees on the job received his instructions.
Skinner testified that O'Brien told him and Brunt that if Cuddigan did not have
any work for the men he would find work for them.
O'Brien subsequently met Cuddigan and told him what had transpired and the
action taken by the Union's executive board.
Skinner called Cuddigan's office near quitting time and was told to lock up the
toolboxes and to report to the shop the next morning, that Cuddigan had consider-
able other work to be done.
When Skinner left the job that day he met Fred Turgeon, who asked if the steam-
fitters were walking off the job. Skinner replied that he guessed they were. Turgeon
asked if it was because of the temporary heat. Skinner replied "I suppose so."
Skinner added that it was not his idea to take the men off, he was merely following
instructions.
The Cuddigan employees did not work on the School project for 5 or 6 weeks
after October 27 .5
Conclusions
Under Section 8(b) (4) (A) of the Act, it is unlawful for a labor organization or
its agents "to induce or encourage the employees of any employer to engage in a
strike" for the purpose of compelling any employer "to cease doing business with
any other person."
That Respondent Union and its agent, O'Brien, instructed its members, employees
of Cuddigan, not to report to work on the School project after the finish of business
on October 27, thus engaging in a strike is clear and requires no further discussion.
The Respondent Union contends as O'Brien testified, that the purpose of the
latter's visit to the School project and his telephone call to Fred Turgeon was "to
find out who made the ruling that we [Union] would not have the work that right-
fully belonged to us." However, his admission that he went to the School project to
see to it that steamfitters were hired to maintain temporary heat and his further
admission that if steamfitters had been hired to attend the system while it was being
used for temporary heat, the Union would not have had a gripe and "there would
be no reason to take any men off; there would be no dispute," are evidence which
clearly establishes that the work stoppage at the School project was designed for no
purpose other than to compel Cuddigan to cease doing business with Turgeon.
I so find.
It is unnecessary to resolve whatever conflict there is between the testimony of
Turgeon and O'Brien in order to determine if the Union had a dispute with Turgeon.
In N.L.R.B. v. Washington-Oregon Shingle Weavers' District Council (Sound Shingle
Co.), 211 F. 2d 149 (C.A. 9), the court found without merit the Union's argument
that there was no evidence of a dispute between it and the Canadian plants which
provided the "unfair" shingles, which the Union would not allow Sound Shingle
employees ( union members) to work on. It held "if that were true it would not
make the Union's conduct any more excusable." Further, the court in its opinion
setting forth the prohibited object of the boycott as it is stated in the statute, said
"That is a prohibited object whether the Union has or has not had a dispute with
c By stipulation between the parties approved by 'United States District Judge Edward
W. Day for the District of Rhode Island on November 24, 1958, the strike or cessation of
work by Cuddigan employees on the School project was called off pending final adjudica-
tion by the Board of the matters before it in the instant proceeding.
LOCAL 476, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 543
such `other producer, processor, or manufacturer.' In fact if the object is sought,
not because of any dispute, but merely because the Union dislikes the other pro-
ducer for any reason, or for no reason, the conduct would appear even more
reprehensible."
In N.L.R.B. v. Local 11, United Brotherhood of Carpenters & Joiners of America,
et al. (General Millwork Corp.), 242 F. 2d 932 (C.A. 6), the court held "the fact
that there was not an active labor dispute between the Respondents and the pro-
ducers of the doors would not serve to immunize the Respondents from the terms of
the Act, which neither literally nor implicitly requires the existence of such a dispute
as a condition of its operation."
The fact that the strike of Cuddigan's employees did not interfere with the progress
of construction at the School project is of no consequences The Board and the
courts have consistently held unlawful inducement and encouragement violates the
Act whether or not it is effective. See Eau Claire and Vicinity Building and Con-
struction Trades Council, 122 NLRB 1341; Del Mar Cabinet Company, Inc., 121
NLRB 1117; N.L.R.B. v. Associated Musicians Local 802, A.F.L., 226 F. 2d 900
(C.A. 2). Accordingly, in view of the foregoing, and upon the record as a whole,
I find that the Union and its agent, O'Brien, violated Section 8(b) (4) (A) of the
Act by inducing and encouraging Cuddigan's employees to engage in a concerted
refusal to work on the School project with an object of compelling Cuddigan to
cease doing business with Turgeon.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. E. Turgeon Construction Co., Inc., and Joseph P. Cuddigan, Inc., are and have
been at all times material to this proceeding, employers within the meaning of
the Act.
2. Local 476, United Association of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States and Canada, AFL-CIO, has been
at all times material to this proceeding, a labor organization within the meaning
of the Act.
3. William O'Brien is and has been at all times material to this proceeding the
business agent of Local 476 and its agent within the meaning of Sections 2(13) and
8(b) (4) (A) of the Act.
4. Local 476 and its agent, O'Brien, have induced or encouraged employees of
Cuddigan to engage in a strike or concerted refusal in the course of their employ-
ment to perform services with the object of forcing or requiring Cuddigan to cease
doing business with Turgeon and have thereby engaged in unfair labor practices
within the meaning of Section 8(b)(4)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, it shall
be recommended that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
[Recommendations omitted from publication.]
In the cross-examination of Nigohosian, it was brought out that Turgeon completed
the construction of the buildings within the time called for in its contract, in spite of
the strike.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 476, UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL-CIO
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , we hereby notify our members that:
WE WILL NOT engage in , or induce or encourage the employees of Joseph P.
Cuddigan , Inc., or of any other employer , to engage in a strike or concerted
refusal in the course of their employment to perform services , where an object
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof is to force or require Joseph P . Cuddigan , Inc., or any other employer
or person to cease doing business with E. Turgeon Construction Co., Inc., or
any other company or person.
LOCAL 476, UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND PIPE-
FITTING INDUSTRY OF THE UNITED STATES AND
CANADA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
Dated------------------- By-------------------------------------------
(WILLIAM O ' BRIEN , Business Agent)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
The H. K. Ferguson Company and Herbert F. Roberts and United
Brotherhood of Carpenters and Joiners of America , AFL-CIO,
The Tuscaloosa and Vicinity District Council of Tuscaloosa
and Selma, Alabama, and Carpenters and Millwrights Local
Union No. 1337, Parties to the Contract
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, The Tuscaloosa and Vicinity District Council of
Tuscaloosa and Selma , Alabama , and Carpenters and Mill-
wrights Local Union No. 1337 and Herbert F . Roberts and
The H . K. Ferguson Company, Party to the Contract. Cases
Nos. 15-CA-1025 and 15-CB-195. August 18, 1959
DECISION AND ORDER
On April 30, 1959, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report. A brief in support
of its exceptions was also filed by the Respondent Company.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
124 NLRB No. 70.