Local 98, Plumbers and Pipefitters

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 582 (N.L.R.B. 1970)

582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 98 , United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-
CIO and Darin & Armstrong , Inc. Case 7-CC- 549
August 27, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
MCCULLOCH AND JENKINS
On May 21, 1970, Trial Examiner William W.
Kapell issued his Decision in the above-entitled case
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondent
filed exceptions to the Trial Examiner's Decision and
the General Counsel filed exceptions and a supporting
brief limited to the scope of the Order set forth
in the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts
the findings, conclusions,' and recommendations' of
the Trial Examiner.
ORDER
tions Board adopts as its Order the Recommended
Order of the Trial Examiner as modified below and
hereby orders that Respondent , Local 98, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada , AFL-CIO, its officers , agents,
and representatives , shall take the action set forth
in the Trial Examiner's Recommended Order as so
modified:
1. Delete paragraph 1 of the Trial Examiner's
Recommended Order, and substitute the following:
"1. Cease and desist from inducing or encouraging
employees of Darin & Armstrong, Inc., its subcontrac-
tors, other than Flamegas, or any other person engaged
in commerce, or in an industry affecting commerce,
to engage in a strike or a refusal in the course'
of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any
services or threatening, coercing, or restraining any
of the aforesaid persons or any other person engaged
in commerce, or in an industry affecting commerce,
where in either case an object thereof is to force
or require any person to cease doing business with
Flamegas Detroit Corporation or to force or require
any person to cease doing business with Darin &
Armstrong, Inc., in order to compel Darin & Arm-
strong, Inc., to cease doing business with Flamegas
Detroit Corporation."
2. Substitute the attached Board Appendix for Trial
Examiner's Appendix.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
We do not adopt the Trial Examiner 's statement that the instant
controversy does not involve a jurisdictional dispute , but agree , rather,
with his observation that Sec 8 (b)(4)(B) and Sec 8(b)(4)(D) are not
mutually exclusive
' We find merit in the General Counsel's exceptions to the narrow
scope of the Trial Examiner 's limited cease -and-desist order In accord
with normal Board practice, which is justified in the present case, we
shall amend the Order to include language prohibiting unlawful activity
against any secondary employers or persons and their employees where
an object is to force or require these persons to cease doing business
with the primary employer involved herein or to cease doing business
with Dann & Armstrong in order to compel Dann & Armstrong to
cease doing business with the primary employer International Brotherhood
of Btectrical Workers, Local 501, et al [Samuel Langer] v N L R B , 341
U S 694, 705 (1951), Plumbers and Pipe Fitters Local Union 142 (Cross
Construction Co , Inc ), 169 NLRB No 113, fn I
WE WILL NOT induce or encourage any
employees of Darin & Armstrong, Inc., its sub-
contractors, other than Flamegas Detroit Corpo-
ration, or any other person engaged in commerce,
or in an industry affecting commerce, to engage
in a strike or refusal in the course of their
employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods
or articles, materials or commodities, or to per-
form any services or threaten, restrain, or coerce
any of the aforesaid persons, where, in either
case, an object thereof is to force or require
any person to cease doing business with Flamegas
Detroit Corporation or to force or require any
person to cease doing business with Darin &
185 NLRB No. 53
LOCAL 98, PLUMBERS AND PIPEFITTERS 583
Armstrong, Inc., in order to compel Darin &
Armstrong, Inc., to cease doing business with
Flamegas Detroit Corporation.
LOCAL 98, UNITED
ASSOCIATION OF
JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF
THE UNITED STATES AND
CANADA, AFL-CIO
(Labor Organization)
called Flamegas . Respondent in its answer admits certain
allegations but denies the commission of any violations
All parties were represented and were afforded an oppor-
tunity to adduce evidence, to examine and cross -examine
witnesses , and to file briefs . Briefs have been received
from the General Counsel and the Charging Party and
have been duly considered. Upon the entire record in the
case, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I COMMERCE
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 500 Book Building, 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone 313-226-
3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM W KAPELL, Trial Examiner: This matter,
a proceeding under Section 10(b) of the National Labor
Relations Act, as amended , herein called the Act, was
heard at Detroit, Michigan, on February 26, 1970, with
all parties participating pursuant to due notice upon a
complaint ' issued by the General Counsel on February
2, 1970 2 The complaint , in substance, alleges that Local
98, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, hereafter referred to as
Respondent or the Union, has engaged in unfair labor
practices in violation of Section 8(b)(4)(i ) and (u)(B) of
the Act by unlawfully threatening to picket and picketing
the construction site of the Chrysler Building Complex
at Highland Park , Michigan, thereby inducing and encourag-
ing the employees of D & A, the general contractor, the
subcontractors on the construction site, and other persons,
to engage in work stoppages , an object thereof being to
force or require D & A, the subcontractors, and other
persons, to cease using, selling , handling, transporting, or
otherwise dealing in the products of, and to cease doing
business with Flamegas Detroit Corporation , hereafter
' Based upon a charge filed on January 20, 1970 , by Darin & Armstrong,
Inc , hereafter referred to as D & A
' All dates hereafter refer to the year 1970 unless otherwise noted
D & A, at all times material herein , a corporation duly
organized under the law of the State of Michigan, has
been engaged as a general contractor in the building and
construction industry throughout the United States. During
the calendar year 1969, D & A, in the course and conduct
of its business operations , purchased and caused to be
transported to its jobsites in the State of Michigan goods
and materials valued in excess of $50,000 directly from
points located outside that State During the same period
D & A has also performed services valued in excess of
$50,000 for various enterprises located in States other than
the State of Michigan.
Flamegas, at all times material herein , a corporation
duly organized under the laws of the State of Michigan,
has been engaged in the sale, rental , and distribution of
heating units and related products and in furnishing heating
services. During 1969, in the course and conduct of its
business operations , Flamegas purchased and caused to
be transported and delivered to its Detroit, Michigan, place
of business heaters, heating materials, and other goods
and materials valued in excess of $50,000, which were
transported and delivered directly from points located out-
side the State of Michigan During the same period Flamegas
performed services valued in excess of $50,000 for various
enterprises located in States other than the State of Michigan
I find , at all times material herein , that D & A and
Flamegas have been engaged in commerce as employers
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find , at all times material
herein , that it has been a labor organization within the
meaning of Section 2(5) of the Act.
111. THE ALLEGED VIOLATIONS
A The Facts
The essential facts are not in dispute. D & A is presently
engaged as a general contractor for Chrysler Corporation
to construct a $20 million complex of four interconnected
buildings at Highland Park , Michigan Work began in
May 1968 and completion is estimated in late 1971 In
addition to performing some of the work, D & A has
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also subcontracted work to about 20 subcontractors, and
there are about 300 employees working on the project.
To enable employees to continue working during the winter
ieason, D & A in December 1969 entered into a contract
with Flamegas to furnish temporary heat to the project.
Pursuant to that contract Flamegas rented a propane gas-
fired furnace and other equipment to D & A on a fully
maintained and operated basis' The heating system is not
permanently affixed to the building and once it is installed
and turned on, it automatically runs 24 hours a day,
and in the normal course of its operation requires only
periodic refueling. The installation work was performed
by Flamegas, which also supplies the propane gas for its
operation In the event the heating system requires servicing
of any kind, D & A calls Flamegas, located about 10
miles from the project, and its service people are dispatched
to the project No employees other than Flamegas' are
permitted to perform any work or services on the heating
system.
On January 13, William Nearhood, D & A's manager
of insurance and safety and also administrator of its labor
relations, visited the project after receiving a call from
Charles Novacek, project manager, that there was a problem
concerning the heaters There, he met in the field office
of Robert Carter Company, D & A's mechanical subcontrac-
tor, with Carlos Castiglione, Respondent's business agent,
who told him that Respondent had traditional jurisdiction
over the hookup and standby maintenance of the gas heaters.
Nearhood explained. that D & A had only rented the
equipment, but Castiglione insisted that the heater services
fell within their jurisdiction and that there would be
"trouble" unless they obtained the disputed work Nearhood
replied that he would take the matter up with the Associated
General Contractors of America, Detroit Chapter, Inc ,
of which D & A is an affiliate. On January 14, Nearhood
and three other D & A officials met with Jack Wood,
secretary-manager of the Detroit Building and Trades Coun-
cil,4 and his assistant Ray Glowski Wood stated that "Bud"
Doe, Respondent's president, had requested an executive
board meeting of the Trades Council to obtain strike sanction
unless Respondent's members were assigned the standby
servicing of the heaters Despite Nearhood's explanation
that the heaters were rented, Wood warned him that unless
the matter was resolved there would be "trouble." When
pressed for possible solutions, the Trades Council representa-
tives suggested that D & A stop using the heaters or
use oil-fired heaters When Nearhood ruled out both sugges-
tions as inacceptable, either Wood or Glowski suggested
that D & A talk to Flamegas about hiring plumber-members
of Respondent to service the heaters Wood also commented
that D & A knew better than to have nonunion members
on a construction job.' The meeting ended with a suggestion
' The furnace was placed outside of the building and connected to
it by a fiberglass duct The propane gas supply was located some 50
feet from the furnace and fed to it through a rubber tube buried in
the ground
Respondent is affiliated with the Trades Council
There was some indecisive testimony to the effect that Flamegas
employees were represented by Chemical and Automic Workers, a union
not affiliated with the Trades Council
that the matter be discussed further on the following day
at the Trades Council offices
On the following day, Nearhood and Stanley Veighey,
director of Labor Relations of the Associated General Con-
tractors, met with Ray Glowski, Bud Doe, and Castiglione
They again discussed the heater problem, each restating
his respective position. They also discussed the cost of
alternate proposals. Glowski and Castiglione suggested that
D & A stop using heaters, or put plumbers on its payroll
to perform standby maintenance, or assign the heating
services to a mechanical contractor, whose plumber employ-
ees would perform the standby maintenance D & A was
unreceptive to any of the proposals, and as the meeting
ended Doe warned there would be trouble if Respondent
did not obtain jurisdiction over the disputed work.
On January 20, pickets, including Doe and Castiglione,
appeared at the project carrying placards reading "D &
A, Inc provides unsafe, unmanned temporary heat." The
picketing resulted in a work stoppage on the whole project
until it was enjoined by a United States District Court
on February 6, 1970, pending resolution of the dispute
by the Board.
B Contentions of the Parties and Conclusions
The General Counsel contends that Respondent has no
labor dispute with D & A, that D & A and all subcontractors
on the project except Flamegas are neutral or secondary
employees to the dispute, and that an object of Respondent's
picketing was to force or require D & A to cease doing
business with Flamegas In support of his position that
D & A is a secondary or neutral employer, the General
Counsel contends that the Company, having divested itself
of control of the disputed work by subcontracting it to
Flamegas, the so-called "right of control" test as applied
by the Board and courts' clearly designates D & A as
a secondary employer because, allegedly, it was powerless
to accede to Respondent's demands except by ceasing to
do business with Flamegas Respondent takes the position
,at it had a jurisdictional dispute with D & A and engaged
in lawful primary picketing of that Company.
The record is clear that in its discussions with D &
A officials, Respondent insisted that it traditionally had
jurisdiction over the work it demanded 'Realistically viewed,
however, the dispute was not of a jurisdictional nature
insofar as D & A was concerned 8 It is crucial to a jurisdlc-
Citing Local 636, United Association ofPlumbers (Mechanical Contrac-
tors Association ofDetroit, Inc), 177 NLRB No 14, and other authorities
' Although Respondent asserted that the heating system was unsafe
without provision for standby maintenance , the claim was never proven
It appears more likely that it was raised as a screen to bolster its
position
However , even assuming that there was a jurisdictional dispute involv-
ing D & A , it is well settled that the boycott provisions of Section
8(b)(4)(B) and the jurisdictional provisions of 8(b)(4)(D) are not mutually
exclusive The existence of a jurisdictional dispute does not preclude
a finding that conduct aimed at resolving the dispute by secondary
means violates Section 8(b)(4)(B) See Carpenters Drsirut Council of Kansas
Cut and Victnn, 158 NLRB 1101, 1102 and V L R B v Local 282,
Teanisters, 344 F 2d 649, 651-652 (C A 2)
LOCAL 98, PLUMBERS AND PIPEFITTERS 585
tional dispute that there be two groups of employees who
assert competing claims for the same work from a specific
employer. See Penello v Local 59, Sheet Metal Workers
(E.1 DuPont de Nemours & Company), 195 F Supp 458,
48 LRRM 2495 (D C Del ), and cases cited therein None
of D & A employees ever did the disputed work, nor
were they claiming it on jurisdictional or other grounds
Nor can Respondent claim that it was striving to perserve
unit work The touchstone in such situations is whether
the demand for the work is addressed to the labor relations
of the employer (D & A) vis-a-vis its own employees
Obviously, the unit work of D & A's employees was not
being diminished or otherwise affected by D & A's subcon-
tracting of the disputed work. If anything, it would appear
that Respondent was attempting to expand the unit work
The dispositive question herein is whether Respondent's
action against D & A was calculated to satisfy its objective
elsewhere, e.g., its effect on Flamegas Were this the case,
D & A would be a neutral bystander and Respondent's
conduct would, within the intent of Section 8(b)(4)(B),
become secondary 10 Respondent's primary intent and objec-
tive was to have the standby maintenance work assigned
to one of its members rather than to any other employee.
That objective could readily be realized, as urged by
Respondent, by having D & A terminate its subcontract
with Flamegas, and either subcontract the work to a contrac-
tor employing Respondent's members or have D & A
directly employ a plumber to do the work in question.
It set about to accomplish this by threatening D & A
that there would be "trouble" unless the dispute were
resolved in its favor Trades Council representatives were
then brought into the picture to support Respondent and
they, on their own behalf as well as in support of Respondent
berated D & A for subcontracting to Flamegas, the only
employer on the job who did not employ members of
unions affiliated with the Trades Council" D & A was
also advised that Respondent was requesting an executive
board meeting of the Council for the purpose of applying
for strike sanction against D & A When D & A refused
to be intimidated, Respondent obtained strike sanction and
began picketing the project with signs that D & A was
providing unsafe, unmanned temporary heat Respondent's
conduct induced and encouraged the employees of D &
A, all subcontractors on the project other than Flamegas,
and other persons working on the project who were engaged
in commerce or in industries affecting commerce, to engage
in strikes or refusals in the course of their employment
to use, or otherwise handle or work on goods, articles,
materials, or commodities, or to perform services, and
also thereby coerced and restrained these employers," objects
thereof being to force or require D & A to cease doing
business with Flamegas, and to force or require all subcon-
tractors on the project, other than Flamegas, to cease
doing business with D & A allegedly because of the unsafe
condition of the project. I, therefore, conclude that Respond-
ent engaged in unfair labor practices within the meaning
of Section 8(b)(4)(i) and (u)(B) N.L.R.B v. Denver Building
Trades Council [Gould & Preisner], 341 U.S. 675.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations descnbed
in section 1, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof
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 Respondent is a labor organization within the meaning
of the Act.
2 The Employers , D & A and Flamegas, are engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act, and are further engaged in an industry affecting
commerce within the meaning of Section 8(b)(4) of the
Act
3. By inducing and encouraging individuals employed
by D & A and its subcontractors, other than Flamegas,
to engage in strikes or refusals to perform services in
the course of their employment, and thereby restraining
and coercing these employers, where any object thereof
in either case was to force or require D & A to cease
doing business with Flamegas, and to force or require
the subcontractors, other than Flamegas, to cease doing
business with D & A, Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(4)(i)
and (ii)(B) of the Act
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
° Cf National Woodwork Manufacturers Association v NL R B., 386
U S 612
'° Nor need there be an actual dispute with Flamegas for the activity
to fall within this category so long as Flamegas, or its employees, was
the actual objective Respondent
11 I find no merit in Respondent's contention that the General Counsel
failed to establish that Trades Council representatives were acting in
its behalf in their discussions with D & A Obviously, they were represent-
ing the interest of Respondent and doing so in the presence of Respondent's
agents
11 See International Hod Carriers, Local 1140 (Gilmore Construction
Co), 127 NLRB 541, 545, fn 6, enfd 285 F 2d 397 (C A 8)
THE REMEDY
Having found that Respondent has violated Section
8(b)(4)(i) and (n)(B) of the Act, I shall recommend that
it be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
On the basis of the foregoing findings of fact and conclu-
sions of law, I hereby issue the following-
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER"
Respondent Local 98, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, AFL-CIO, its officers,
agents, and representatives, shall-
1. Cease and desist from engaging in, or inducing or
encouraging employees of Darin & Armstrong, Inc., its
subcontractors, other than Flamegas, or any other person
engaged in commerce or an industry affecting commerce
who is at work on the Highland Park, Michigan, construc-
tion site of Chrysler Corporation known as the Chrysler
Styling and Product Planning Center, to engage in a strike
or a refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities,
or to perform any services, or threatening, coercing, or
restraining any of the aforesaid persons where in either
case an object thereof is to force or require Darin &
Armstrong, Inc, to cease doing business with Flamegas
Detroit Corporation, or to force or require the subcontrac-
tors, other than Flamegas, or any other person engaged
in work on the aforesaid construction site to cease doing
business with Darin & Armstrong, Inc.
" In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions, recommendations , and Recommended Order
herein shall , as provided in Section 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
2 Take the following affirmative action which is designed
to effectuate the policies of the Act
(a) Post at its office and meeting halls copies of the
attached notice marked "Appendix "14 Copies of said notice,
on forms provided by the Regional Director for Region
7, after being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Furnish said Regional Director with signed copies
of the aforesaid notice for posting by Darin & Armstrong,
Inc., and Flamegas Detroit Corporation, if they be willing,
at places where they customarily post notices to their
employees.
(c) Notify said Regional Director, in writing , within
20 days from the receipt of this Decision, what steps
have been taken to comply herewith 15
" In the event that the Board's Order is enforced by a Judgement
of a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgement of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
" 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 Respondent has taken to comply herewith "