Local 741, Plumbers

National Labor Relations Board - Board Decisions

Aug 24, 1972

198 N.L.R.B. 1056 (N.L.R.B. 1972)

1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 741 of the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada,
AFL-CIO (Stearns-Roger Corporation) and Dan-
ny L. Harville. Case 28-CB-632
August 24, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On April 19, 1972, Trial Examiner Martin S.
Bennett issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief; the Respondent filed limited
exceptions and a supporting brief. The Respondent
also submitted an answering 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter was
heard at Tucson, Arizona, on January 11, 12, 13, 18, 19,
and 20, 1972. The complaint, issued October 26, and based
upon charges filed September 15 and October 15, 1971, by
Danny L. Harville, an individual, alleges that Respondent
Union, Local 741 of the United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO, has
engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) of the Act.' Briefs have been
submitted by the General Counsel and Respondent Union.
A motion by the General Counsel to change "1971" to
1970" on page 214 of the record is granted.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent Union, Local 741 of the United Association
of Journeymen and Apprentices, of the Plumbing and
Pipefitting Industry of the United States and Canada,
AFL-CIO, is signatory to contracts with the following
employers: (1) Stearns-Roger Corporation, a Colorado
corporation and a general contractor, which annually
receives in Arizona materials valued in excess of $50,000
shipped to it directly from points outside that State; (2) H.
N. Sundt Construction, an Arizona corporation and a
general contractor, which annually receives in Arizona
materials valued in excess of $50,000 shipped to it directly
from points outside that State; (3) Fluor Utah Engineers
and Civil Constructors, Inc., a California corporation
engaged as a contractor in the building and construction
industry, which annually performs services valued in excess
of $50,000 for customers outside that State; and (4) C. F.
Opel, Inc., a Texas corporation engaged in the installation
of pipelines, which annually receives in Arizona materials
valued in excess of $50,000 shipped to it directly from
points outside that State. I find that the operations of the
above-named employers affect commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union , Local 741 of the 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
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; the Issues
The complaint alleges that Respondent Union refused to
dispatch Danny L. Harville to various employers who are
obligated to utilize Respondent's hiring hall with the
objective of giving preference to members of Respondent
who enjoyed longer membership than Harville, that
Respondent requested Harville to permit himself to be so
bypassed, that Respondent told a job applicant that
members of Respondent would be given preference over
other job applicants, and that Respondent told its members
who were supervisors to give preference on jobs to
members.
Basic to the case is an appreciation of the following: The
contract between Respondent Union and its signatory
employers provides for the requisition of workers from the
union-operated hiring hall and gives preference to men on
the A list over those on the C list.2 To qualify for the A list,
one must have worked for signatory contractors for "at
least eight hundred (800) hours in each of the last three (3)
consecutive years preceding the date of their current
registration ... .
As will appear, Harville's problem with Respondent
I Originally consolidated with this matter was Case 28-CB-633 against
the same Respondent . That case was settled during the hearing and a
motion to sever was granted
2 A so-called B list is not involved herein
198 NLRB No. 155
LOCAL 741, PLUMBERS 1057
Union stems from the fact that he had worked for 800
hours in each of the three 12-month periods prior to his last
registration, but that he had not been a member for 3 full
years; namely, 36 months.
Directly involved herein in behalf of Respondent Union
are Business Manager Richard Lower and W. A. Simmons,
a business representative beneath Lower, who does
approximately 95 percent of the dispatching; both are
elected officials. As will appear, Lower attempted to bend
over backwards toward Harville whose competency is not
in question and Simmons, acting with the executive
committee of Respondent Union, in effect reversed his
superior because of what appears to be factionalism in
Respondent Union.
Ruling was reserved at the hearing on a motion by
Respondent Union that the various affected employers be
joined herein as parties. There is no evidence of the filing
of charges or the issuance of complaints against the latter
and the motion is hereby denied. It may also be noted that
there is some irrelevant and nondispositive testimony
which is not treated herein as it is deemed extraneous to a
resolution of the basic issue.
B. The Harville Case
1. Sequence of events
Danny Harville, a member of a sister local of Respon-
dent Union in Texas, came to Tucson in September 1968.
He promptly made an appearance at the hiring hall of
Respondent Union on September 8, had his book inspect-
ed by Business Manager Lower, signed the out-of-work list,
and was referred to a number of jobs. He was admitted to
membership in Respondent Union on January 22, 1970.
Shortly after June 17, 1970, Harville appeared at the hall
and signed up on the out-of-work list. Lower summoned
him to the office , stated that he believed all local men, as
contrasted with traveling nonmembers, should be on the A
list, and told him he was therefore placing Harville on the
preferential A list.
Lower further asked Harville not to mention this transfer
to other members as it might cause Lower some difficulty
and, if this did leak out, Lower would take the position that
Harville was on the A list under protest. Lower asked
Harville to abide by one restriction; namely, that he, in the
interest of fairness , should allow local members with more
seniority to be dispatched before him .3 Harville was
thereafter dispatched from the A list without event.
Lower contended that Harville asked for placement on
the A list; this I deem unnecessary to resolve. Lower also
contended that from an examination of Harville's record,
he concluded that Harville was indeed eligible for
placement on the A list. While Harville's record with
Respondent Union readily discloses that he was not then
eligible for the A list, the simple answer, in the posture
most favorable to the General Counsel, is that Lower
decided to give Harville a "break" and put him on the A
list. And in any event, the crux of the General Counsel's
case is that Harville was subsequently removed from the A
list. - '
According to Harville, various local members reminded
him from time to time that he was improperly placed on
the A list. On March 16, 1971, Harville signed up on the
out-of-work A list; he was hospitalized on March 17 and
was absent from work about 8 weeks . It is to be noted that
as of March 17, the hours worked by him totaled as
follows. He had worked more than 800 hours from
September 1968 to September 1969, the same as of
September 1970, and at least the same number of hours
between September 1970 and March 1971. This is not
disputed by Respondent Union which contends rather
that, under the contract, Harville was not eligible for
placement on the A list until his third anniversary date in
September 1971.
Harville reported to the hiring hall on May 25, 1971,
after his convalescence, and was high on the out-of-work A
list. Lower called him to the office, acknowledged that
Harville was indeed high on the A list and explained that
some older members were causing him, Lower, trouble
over the matter and putting pressure on him. He stated,
according to Harville, that he had placed him on the A list
prior to his being eligible therefor and was now asking
Harville to step aside during the dispatch. Harville
acknowledged that he owed Lower a favor and agreed to
do so.
The basic premise of the General Counsel's case is that
on this occasion and on a number of occasions thereafter,
as documented by exhibits, A list members lower on the
out-of-work list than Harville, but with greater seniority,
were dispatched ahead of him. More specifically, on June
4, Lower asked Harville to decline a particular call.
Harville refused, but his name was not called as the names
were read out by Dispatcher Simmons . On June 11, a
particular job was offered to anyone on the A list and
Harville volunteered. Dispatcher Simmons then an-
nounced that he was no longer on the A list and that he
was at the top of the C list. Harville was ultimately
dispatched to this job from the C list. According to
Harville, Lower told him during this period that the local
members objected to his placement on the A list because
this would qualify a number of travelers for the same
treatment.
Harville admitted that he was restored to the A list
around the end of September or the first of October,
approximately 3 years after he first registered with the
Union. The problem herein involves solely the interim
period after May 1971 when Lower brought up the topic of
his passing on the A list call and his placement on the C list
in June.
2. Analysis and conclusions
It would seem that Business Agent and Dispatcher
Simmons did not enjoy the same ideology as his superior,
Lower, and the testimony of Simmons is revealing herein.
Simmons testified that he disagreed with the action of
Lower in placing Harville on the A list and that he,
3 This meant that when Harville's name was reached on the out -of-work
A list, he was to initially decline the assignment and permit the older
members to bid first for thejob
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Simmons, had been questioned by various members
concerning this action.4 Simmons checked the records,
admitted to Harville that he had the necessary hours, and
pointed out that he was short some months sufficient to
make the full 3 calendar years.
As Simmons put it, he learned that Harville had
appeared before the executive board of Respondent which
agreed with Harville's position.5 Immediately upon learn-
ing this, Simmons went to a vice president of Respondent
Union and had him call a special meeting of the executive
board. Simmons brought in the record, convinced the
board that he, Simmons, was correct, and was instructed to
remove Harville from the A list.
This caused the physical transfer of Harville on June 11,
1971, to the C list; although placed at the top of the C list,
he was duly dispatched that day to a less desirable
nonovertime job. According to Simmons, this type of
transfer has taken place in a number of instances not
specified herein; namely, Respondent Union has conclud-
ed that men should be on the C rather than A list because
of their not meeting the requirement of the contract-the
36 months plus the hours-worked requirement-and has so
transferred them.
The General Counsel contends that Lower placed
Harville on the A list at a time when he perforce knew that
he was not eligible for such placement, that by so doing
Respondent has waived any defense predicated upon the
contract language, and that its arbitrary action in returning
him to the C list was therefore improper. I see no waiver
principle herein. The fact is that Respondent reclassified
Harville and the sole question is whether it did so for
reasons forbidden under the Act.
This presents for consideration the claim of the General
Counsel that Harville as of right was entitled to placement
on the A list in March 1971, prior to his removal therefrom.
This is predicated on the fact that Harville had 800 hours
in each of the 3 years of his employment but had not
completed 36 months at the time of the alleged discnmina-
tion.
Uhile the ostensible political infighting by Simmons
perhaps does not commend itself, this does not dispose of
the problem. A faction in the Union believed, albeit for
selfish reasons, that the contract should be construed to
mean that 3 years meant 36 months. And, there is the
testimony of Simmons that men had been similarly
transferred from the A to the C list and this is not
challenged. Stated otherwise, there was an arguable and
supportable claim for either side. This is not necessarily to
be equated with an unlawful discriminatory motive. That
Respondent Union opted for one route rather than the
other does not, as the General Counsel urges, perforce
supply an unlawful motive.
That Business Manager Lower generously attempted to
aid an ostensibly competent worker does not legally
amount to an estoppel from later asserting its construction
of the contract. Indeed, even Harville at one point
recognized in an answer that Respondent Union, by
Lower, interpreted the contract to require 800 hours for
"1,095 days." To sum up, a reasonable claim could be
made for either interpretation. Respondent Union, yielding
to pressure by various members and Simmons, decided to
follow one plausible route. I do not equate this with
unlawful motivation and conduct as alleged by the General
Counsel and I find that Respondent's refusal to retain
Harville on the A list after March 1971 did not violate the
hiring hall provisions of the contract. I shall therefore
recommend that this allegation of the complaint be
dismissed.6
C. Other Allegations
The foregoing findings dispose of the allegation that
Respondent Union violated Section 8(b)(1)(A) of the Act
by requesting Harville, in May 1971, to stand beside and
permit members with more seniority on the A list to be
dispatched first.
The briefs of both the General Counsel and Respondent
are basically devoted to the case of Harville treated above.
The General Counsel did present certain relatively vague
testimony in two other areas which are not adverted to in
either brief. Initially, after the close of a regular meeting on
the night of September 15, 1971, a special meeting was held
for regular members only. According to member Alexan-
der Eggert, not an easy witness to follow, Lower told them
that many A men needed work and that members of
Respondent Union acting in a supervisory capacity should
endeavor to get rid of the travelers and make room for the
A members. Harville also recalled such a meeting on
September 15. His version was that Lower told them, inter
alia, that supervisors should make room for local men
because travelers were being used rather than local men
and were thus accumulating hours toward qualifying for
the A list.7
Lower's version differed. Respondent presented in
evidence a telegram dated September 15 which Lower read
to the meeting. This was from a contractor, Southern
Mechanical Contractors, directing the repair of faulty work
on a housing project. A special meeting had been called in
connection with a dues increase and Lower utilized the
occasion to read the wire.
According to Lower, he explained to the members the
seriousness of the wire, complained that supervisors were
not checking out the men adequately and told them that if
unqualified men were present on the job to eliminate them.
He deplored the situation because this involved gas leaks in
family housing and denied making any reference to giving
preference to local men.
Lower received substantial corroboration from Walter
Veltman, a member of Respondent Union who was then
serving as general foreman on this construction project.
Veltman testified that on or about September 1 he
complained to Lower that the workmen were not perform-
ing the work to standards and that management was most
unhappy with the qualifications of some of the men on the
4 Simmons normally handles the dispatch approximately 95 percent of grievance was mislaid and not processed The record will not support a
the time finding of unfair representation and I place no reliance on this
5 According to Harville, the executive board told him that this decision Indeed, as noted, Harville is now back on the A list
was up to the business agent 7 On occasions, various members are dispatched to jobs as supervisors
6 There is evidence that Harville grieved under the contract, but that his
LOCAL 741, PLUMBERS 1059
project. He asked Lower to get those men off the job so his
employer would not sue Respondent Union. Veltman also
attended the September 15 meeting at which the wire was
read. This wire, from Southern Mechanical Contractors,
states as follows:
GENTLEMEN: YOU ARE HEREBY DIRECTED TO REPAIR OR
REPLACE AT NO EXPENSE TO THE UNDERSIGNED FIRM, ALL
INFERIOR WORK PERTAINING TO THE HIGH PRESSURE GAS
MAIN AND LATERALS ON THE SUBJECT JOB. FAILURE TO
PREVENT ACCEPTABLE PLAN OF ACTION WITHIN 48 HOURS
MAY RESULT IN ACTION BY THE FEDERAL GOVERNMENT.
WE ARE UNDER DIRECTIVE FROM THE ARMY TO TAKE
IMMEDIATE ACTION. WE WILL EXPECT REIMBURSEMENT
FOR ALL MONIES EXPENDED ON CORRECTIONS
PERFORMED TO DATE AS WELL AS ALL COSTS TO REPAIR
DAMAGED STREETS, LANDSCAPING, AND ETC. WHICH MAY
BE INCURRED. YOU ARE FURTHER INFORMED THAT
SEVERAL HIGH PRESSURE LEAKS ARE SOMEWHERE OF THE
VICINITY OF OCCUPIED UNITS AND AN EXTREME DANGER
TO LIFE AND PROPERTY EXISTS. [SIC I
Lower then told the assemblage that it was up to the
individual supervisors on these projects to get nd of those
not qualified to perform the work. Veltman was asked if
anything was said about giving preference to local
personnel. He replied that Lower said that he wanted the
more qualified men to remain, local members or not. He
later testified that qualifications was the sole test men-
tioned as to who would be retained. Harville also admitted
that Lower read a wire protesting inferior work on a
project and demanding reimbursement for its correction.
As noted, the testimony of Eggert, as well as the mode of
his testimony, leaves something to be desired. Moreover,
he partially admitted at one point that Lower did make
reference to this problem on the particular project. Lower
impressed me as a man hard pressed both by internal strife,
as set forth above, and by the exigencies of this crucial
development on the construction project. He was substan-
tially corroborated as to his remarks by Veltman, then
serving as a representative of management. Although the
matter is not free from doubt, I credit Lower and Veltman
as to the remarks made on this occasion and, upon a
preponderance of the evidence, recommend the dismissal
of this allegation.
William Phillips, a pipefitter on the C list and on a travel
card, testified that on September 8, 1971, he went to the
hall believing that he was entitled to placement on the A
list. Soon thereafter, he was placed on the A list and told
that local members on the A list would go out first and
traveling members would go out second. He was given a
form, not in evidence, to sign.
According to Lower, who placed this around September
3, Respondent experienced a problem at this time with
many travelers signing the out-of-work list but not being
present when the dispatch was made; indeed, he would
then discover that they were out of the State. He obtained
some signatures to a form, the details of which are not
before me and which, according to Phillips, allegedly set up
two orders of preference on the A list. There were
complaints, charges were filed with the Board and within a
day or two, Respondent Union abandoned this effort in its
entirety. There is no evidence that a Board complaint ever
issued. On this entire posture, this is viewed as inadequate
and too insubstantial to support a finding adverse to
Respondent Union and I shall recommend its dismissal.8
CONCLUSIONS OF LAW
1. Stearns-Roger Corporation, H. N. Sundt Construc-
tion, Fluor Utah Engineers and Civil Constructors, Inc.,
and C. F. Opel, Inc., are employers whose operations affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 741 of the 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 Section 2(5) of the Act.
3. Respondent Union, Local 741 of the United Associ-
ation of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
AFL-CIO, has not engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) and (2) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
The complaint is dismissed in its entirety.
8 1 deem this as a technical violation at best which does not warrant an
Order