Local Union No. 38, Plumbers

National Labor Relations Board - Board Decisions

Apr 17, 1967

164 N.L.R.B. 20 (N.L.R.B. 1967)

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No . 38 of the United Association
of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO and
Henry Maldonado . Case 20-CB-1535.
April 17, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On January 6, 1967, Trial Examiner James R.
Webster issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision and a
supporting brief, and Respondent filed a brief in
opposition to the exceptions of the General Counsel.
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
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions , the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner: This case with all
parties represented was heard in San Francisco,
California, on October 18 and 19, 1966, upon a complaint
of the General Counsel and answer of Local Union No. 38
of the United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, herein called the
Respondent. The complaint was issued on September 1,
1966, upon a charge filed on May 12, 1966. The complaint
alleges that Respondent caused the discharge of the
Charging Party on or about May 10, 1966, and attempted
to cause his discharge prior thereto because of his lack of
membership in the Respondent Union and because of his
lack of activities in support of said Union, and that
Respondent thereby violated Section 8(b)(1)(A) and (2) of
the National Labor Relations Act, herein called the Act.
Briefs have been filed by the Respondent, the Charging
Party, and the General Counsel and have been carefully
considered. On December 2, 1966, the General Counsel
filed a motion to correct the transcript of hearing. No
opposition thereto has been filed; the motion has been
carefully considered and is granted. Upon the entire
record and my observation of the witnesses, I hereby make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Western Piping and Engineering Company, Inc., herein
called the Employer, is a California corporation having an
office and plant in San Francisco, California, where it is
engaged in the manufacture and sale of custom tubular
products. During the past year, the Employer had a gross
volume of business in excess of $500,000. During the same
period it purchased and received goods valued in excess of
$50,000 directly from points outside the State of California
and also sold and shipped goods valued in excess of
$50,000 from its San Francisco plant directly to customers
located outside the State of California.
Western Piping and Engineering Company, Inc., is an
employer within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues and Statement of Facts
The principal issues in this case are (1) whether or not
Maldonado was discriminatorily selected for layoff on
May 11, 1966; and (2) if so, whether or not Respondent
caused it, and if not, whether or not Respondent attempted
to cause a discriminatory layoff of Maldonado. Respondent
contends that the Employer selected Maldonado for layoff
in an economic reduction and did so pursuant to contract
seniority provisions and recognized practices.
Maldonado was employed by Western Piping on
April 23, 1965, as a welder. He was a member of Local
No. 467 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO, of San Mateo,
California, but while employed by Western Piping in San
Francisco he was affiliated with Respondent on a "travel
card" basis.
Western Piping Company has a contract with
Respondent covering its approximately 38 employees in its
shop number two and has had for many years. From
August 24 to October 4, 1965, Respondent was on strike
against the Employer. Respondent was critical of
Maldonado for not doing what it believed to be his share of
the picketing. Maldonado, who lives in San Mateo,
California, was scheduled for picket duty on several
occasions for which he did not appear. He was
reprimanded on one occasion by Respondent's organizer,
Henry McGrath, for not doing his share of the picketing.
He picketed on only two occasions during the period of the
strike, and his participation in picketing was less than that
done by any other employee on strike.
164 NLRB No. 3
LOCAL UNION NO. 38 , PLUMBERS 21
During the period from November 1965 to June 1966, the
Employer had occasions to lay off at different times a total
of approximately 13 employees in shop number two due to
lack of work. On each occasion, James Billeb, vice
president for the Employer, called Respondent and
advised a business representative of the layoff and gave
him the name or names of employees to be laid off. Billeb
was repeatedly reminded that selection of employees for
layoff should be in accordance with the contract. .
By the contract all employees are placed in three
categories of seniority. In group I are those plumbers and
pipefitters who have been employed by a party to the
agreement for a period of at least 1,200 hours in each of the
2 prior years in the area covered by Respondent's
agreement, being the San Francisco area. In group II are
all plumbers and pipefitters who have worked at least
1,200 hours in each of the preceding 2 years in the Greater
Bay Area, inclusive of Santa Clara, Alameda, Contra
Costa, San Joaquin, Sacramento, and Solano Counties. In
group III are all other qualified plumbers and pipefitters.
Economic layoffs are to be made from among group III
men first, then from group II, and finally from group I. By
policy and practice, Respondent recognizes an exception
to this order of layoff and permits the retention of
employees who possess special skills or training where no
senior employee possesses the same skills or training.
Also, within a group, an employer may select the men for
discharge without regard to their relative seniority.
Maldonado was in group III at all times during his
employment with Western Piping. In the fall of 1965, the
Employer purchased a McKay cordless wire welding
machine, a fully automatic welding machine, and
Maldonado was trained by a McKay representative to
operate this machine. This training covered a period of
about 4 weeks, with the McKay representative spending
all of his time at the shop during the first week, and
checking Maldonado and the machine two times each
week during the next 2 or 3 weeks.
During the period from November 1965 to May 1966,
Billeb talked with Respondent's Business Representatives
Henry McGrath, Robert McCann, and Robert Costello
regarding the layoffs. In November 1965 he talked about
his impending layoff of two men with McGrath. McGrath
told him that the men would have to be laid off according
to the seniority groups as set forth in the contract. Billeb
mentioned Maldonado and stated that he was the only man
he had who could run the McKay machine. McGrath's
reply was that anyone of the men in the shop with a little
instruction could run it and, that when the time came,
Maldonado would have to be laid off according to the
contract. In December 1965 another employee was laid off
and on this occasion Billeb and McGrath had substantially
the same conversation. On each of these occasions, the
men selected for layoff were group III employees.
In January 1966, McCann replaced McGrath as the
union representative servicing Western Piping. In
February or March 1966, he was visiting the shop and was
questioned by several of the employees about the periodic
layoffs. He was asked why Maldonado had not been laid
off and replied that other group III men were still working
there. Later he asked Billeb why Maldonado was staying
on, and Billeb stated that he operated the McKay wire
machine. Billeb testified that he was aware of dissension
among the employees concerning Maldonado and that he
had noticed it since the strike in the fall of 1965.
McCann had not seen the McKay machine, and he
observed it in operation. Billeb stated that he would like to
keep Maldonado as he had had special training on this
machine. McCann replied that he could keep any man he
wanted provided he laid off "by the book"; that
Maldonado was a travel card man and that when the
layoffs came, he would have to go before the Local 38 men.
The layoffs prior to May 1966 were as follows:
Nov. 30, 1965 two group III employees
Dec. 14, 1965 one group III employee
Dec. 28, 1965 one apprentice'
Feb. 8, 1966 one group III employee
Apr. 28, 1966 one apprentice (a group I
employee quit on Apr. 27, 1966)
On May 1, 1966, the only group III men remaining with
Western Piping were Maldonado, R. Shadoan, and
Fernando Rivera. Rivera transferred from Local 6 of the
International Brotherhood of Boilermakers to Respondent
in the fall of 1965.2 Along with several other employees, he
had special skill in welding on stainless steel materials. He
was trained and qualified for and was working on jobs for
the Indian Government and an Italian concern, and Billeb
testified that "I had to keep him." Maldonado was not
certified with Western Piping as a stainless steel welder.
On May 11, 1966, another layoff occurred. Maldonado
Shadoan, and W. Benninger, a group I man and the shop
steward, were laid off. Billeb called Respondent on May 9
about the impending layoff. He had selected the shop
steward for layoff because of a drinking problem. Because
of his position as job steward and the contract provision
giving special seniority consideration to job stewards, he
anticipated that his selection of Benninger for layoff might
present a problem. He talked with Costello and told him
that he was planning to lay off Shop Steward Benninger,
J. Taylor (a group I man), Shadoan (a group III man), and
"to avoid any trouble, we are also laying off Maldonado."
Costello acquiesced in or agreed to the layoffs. Costello
knew of and did not contest the cause for the job steward's
layoff, but suggested that Billeb send Respondent a
telegram on the matter. Billeb told Costello that if
anything came up for the McKay machine, he would want
to rehire Maldonado. Costello replied that the Union could
supply him with men that could run this machine.
Billeb sent the telegram as requested and on May 11,
laid off Benninger, Shadoan, and Maldonado. Taylor's
layoff did not come about as he was on vacation at the
time. When he returned to work, the Employer had work
for him which continued his employment until July 1966.
At the time of his layoff, Maldonado had just completed
work on a job for a concern in Alaska. He testified that the
work had become slow and that he was standing around a
lot of the time. Billeb testified that he had no work for the
McKay automatic welding machine at the time, but had
hoped to have work for this machine soon thereafter. The
expected job did not materialize and the McKay machine
remained idle. If this job had developed, Billeb had
I Apprentics are to be laid off or employed to maintain a ratio of
one apprentice to four plumbers or pipefitters
2 In addition to members of Respondent and travel card men
from other locals of the United Association, the Employer had
employed in its plant some welders who were members of Local 6
of the Boilermakers These men were employed at a time when
Respondent could not furnish sufficient welders, and they were
cleared through Respondent They were all in seniority group III
All had applied for membership in Respondent and were in the
process of paying their initiation fees They were, therefore, due
to be laid off before members of Respondent, who were all in
seniority group I This was told to Billeb in conversations with
representatives of Respondent regarding impending layoffs
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
planned to call Respondent and ask that Maldonado be
dispatched.
Billeb told Maldonado at his termination that he was
sorry to see him go and would like to have kept him but
could not lay off Benninger and Taylor, group I men, and
keep him, a group III man, without getting into trouble
with the Union; that if Maldonado had been in Local 38, he
did not think there would have been any problem.
Maldonado's foreman, Sorenson, told him that the
Employer had no choice; that the out-of-town members of
the Union had to go first, which, in effect, was a statement
that the seniority ratings of the employees, as set forth in
the contract, had to govern.
Billeb was well pleased with Maldonado as an employee
and would like to have retained him in his employ. He
testified that he could have found work for him to do, but
to do so, he would have had to let a group I man go. Rivera,
a group III man, was on a special assignment and his
continued employment was needed. Benninger, Taylor,
and Maldonado were not, or had not, qualified on the
stainless steel work being performed by Rivera and other
employees. Billeb testified that the Employer kept only the
very top men and that they were sweeping floors most of
the time. Billeb also testified that if he had kept
Maldonado, a group III man, and had laid off Benninger, a
group I man and also the job steward, he did not know
what the Union might have done. Prior to calling Costello
on May 9, he had decided that Maldonado was to be
included in the layoff. Costello made no mention of
Maldonado in this conversation.3
In June 1966 the Employer was in need of an additional
employee as a "wire welder, semi-automatic" (not the
McKay machine), and a request was made of Respondent
for such employee. J. Jones, a group III man and
number 38 on Respondent's out-of-work list, was
dispatched, as apparently no man higher on the list was
both available and qualified.
B. Conclusions
The General Counsel contends that Respondent
resented the fact that Maldonado did not "do his share" of
the picketing during the fall strike against Western Piping,
and that one of the ways Respondent manifested this
resentment was by refusing him membership in that Union
while accepting other travel card men as members;4 that
Respondent had motive for causing the Employer to
discriminate against him and that this coupled with
9 Billeb's two affidavits given to Board agents are a bit
ambiguous and contradictory on his conversation with Costello,
and he acknowledged this in his testimony Although his affidavits
are inconsistent within themselves , they do contain statements
consistent with his testimony (although inconsistent with other
statements in the affidavits) to the eftect that he had decided to
lay off Maldonado before he called Costello
Respondent's statements and actions evidence
Respondent's violation of Section 8(b)(1)(A) and (2) of the
Act.
Respondent readily admits that it did not care for
Maldonado and did not want him as a member; that he
"did not serve his time on the picket line"; and that
"motive" for causing his termination existed, but contends
that the illegal act was not committed.
During the course of the layoffs, Billeb was reminded
repeatedly of the seniority provisions of the contract and of
Maldonado's seniority position as a group III man. But at
no time was Billeb asked or urged to lay Maldonado off
prematurely or out of order. Billeb was certainly aware
from the attitude of other employees and the reference to
Maldonado's seniority position by the union
representatives that he was a persona non grata, and could
certainly deduce that the Union and its members would be
pleased when his employment with Western Piping ended.
But Respondent's conduct on the matter was a
"reminding" or an "urging" that the Employer adhere to
the rules and recognized practices on the layoffs. It would
appear to me that had he retained Maldonado under the
circumstances that existed, as he would have liked to have
done, he would have run the risk of violating the applica-
ble seniority provisions of the contract and recognized
practices. There was no work for his machine, the McKay
automatic welding machine; if there had been, then there
would be a basis for his retention in accordance with the
existing practice. Except for Rivera, Maldonado and
Shadoan were the last group III employees to be laid off.
I, therefore, find that there is insufficient evidence that
there has been any discrimination against Maldonado by
his layoff of May 11, or that Respondent by its statement to
the Employer, urging that the seniority rules and practices
be followed as to Maldonado, did thereby cause or
attempted to cause a discrimination against him.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not violated Section 8 (b)(1)(A) or (2)
of the Act as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.
" Maldonado testified that he had been told two employees,
Neumair and D Jones, from another local of the Plumbers Union,
were accepted as members of Respondent Employees from
Local 6 of the Boilermakers Union were in the process of paying
initiation fees to Respondent when the layoffs occurred, and
Rivera became a member