Pipeliners Local 798, Plumbers

National Labor Relations Board - Board Decisions

Feb 27, 1969

174 N.L.R.B. 868 (N.L.R.B. 1969)

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pipeliners Local Union No. 798 of the United
Association of Journeymen & Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada (Bauer Dredging Co., Inc.) and
Robert C. Galloway. Case 15-CB-898
February 27, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 25, 1968, Trial Examiner George A.
Downing issued his Decision in the above-entitted
case, finding that Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act,
as amended, and recommending 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 a supporting
brief.
Pursuant to, the provisions of Section 3(b) of the
Act, 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 brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, was heard at New Orleans, Louisiana, on
September 19, 1968, pursuant to due notice. The
complaint which was issued on August 15, 1968 (all events
herein occurred in 1968), on a charge and an amended
charge filed June 7 and July 31, respectively, alleged that
Respondent engaged in unfair labor practices proscribed
by Section 8(b)(2) and (1)(A) of the Act by causing Bauer
Dredging Co., Inc. (Bauer herein), to discharge Carnell
Galloway on May 18 and Robert C. Galloway on June 4
and by causing Bauer to deny to Robert C. Galloway
spacer's pay on and after May 23, for reasons other than
failure of the said employees to tender the periodic dues
and initiation fees uniformly required as a condition of
acquiring or retaining membership in Respondent and/or
by not making membership in Respondent available to
said employees on the same terms and conditions
generally applicable to other members of Respondent.
Respondent answered, denying said unfair labor practices.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
L THE BUSINESS OF THE EMPLOYER; RESPONDENT AS A
LABOR ORGANIZATION
I find on the basis of admitted facts that Bauer is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act,' and that Respondent
Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Pipeliners Local Union No.
798 of the United Association of Journeymen &
Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, Tulsa,
Oklahoma, its officers, agents, and representatives,
shall take the action set forth in the Trial
E`xaminer's Recommended Order.
'We agree with the Trial Examiner that Respondent Union caused and
attempted to cause Bauer to discharge Carnell Galloway on May 19 and
Robert Galloway on June 4, and caused and attempted to cause Bauer to
deny spacer's pay to Robert Galloway on and after May 23, for
discriminatory reasons, and not for any failure by the Galloways to tender
the periodic dues and initiation fees uniformly required as a condition of
acquiring or attaining membership in Respondent Union
Respondent and Bauer were parties to a
collective-bargaining agreement which contained a valid
open shop clause making it a condition of continued
employment for employees to acquire and maintain
membership in the Union commencing on the 8th day
following the beginning of employment. Also included
were detailed provisions for a nonexclusive referral
arrangement as fully set forth in appendix A hereto. The
dredging job at Chalmette (since completed) got underway
on May 17 and the Galloways, who were father and son
and who were not members of the Union, were hired on
that date by Bauer's foreman, Wallace Singleton. Carnell
Galloway was discharged on May 19 upon arrival of a
union member at the jobsite and Robert Galloway was
discharged on June 4 upon arrival of another union
member. Both Galloways sought unsuccessfully to acquire
union membership during their employment by applying
to the job steward Robert Perdue.
The chief issue as litigated at the hearing (Respondent
filed no brief) is whether the Galloways were offered and
accepted only temporary employment pending the arrival
'Bauer, a Texas corporation engaged in the business of laying pipelines
and dredging , received in the calendar year 1968 in excess of $50,000 for
work performed at Chalmette , Louisiana, where it was engaged in laying a
gas pipeline for Public Service, Inc
174 NLRB No. 130
PIPELINERS LOCAL 798, PLUMBERS 869
of union members allegedly enroute after being dispatched
through Respondent's office in Tulsa, Oklahoma, at the
request of job steward, Perdue. A further issue concerned
Respondent's refusal to permit Bauer to compensate
Robert Galloway at the appropriate journeyman's rate on
occasions when he was assigned in rotation to doing the
work of a spacer.
B. The Evidence
The job start at Chalmette was preceded by a pre-job
conference at which the parties agreed on a hiring
arrangement which was in full accord with the union-shop
provisions of the contract (see section A, supra) and in
recognizing Bauer's right to make direct hirings both at
the start of the job and later. Thus Business
Representative Norwood H. Clack testified that it was
agreed that five helpers, one journeyman, and three
welders were to be hired for the job and that Bauer was to
hire them all except one welder, the union steward, whom
Clack sent to the jobsite in the person of Robert Perdue.
The pre-job agreement similarly reflected that the "Union
Quota" was one welder (steward Perdue).
The evidence showed, however, that those were not the
hiring arrangements which the parties followed, at least
vis-a-vis the Galloways, in manning the job. To the
contrary when the Galloways first applied for jobs on
May 16 to Bauer's foreman, Wallace Singleton (also a
member of another local of the International Union), he
inquired whether they were members of Respondent
Union. When they informed Singleton they did not have a
"union book," Singleton stated that he intended to work
all union hands if possible, but if no union hands came in
he would hire the Galloways. Singleton's testimony was
not in significant conflict with the Galloways to the
foregoing effect.
The Galloways applied again on the morning of March
17 as the job was getting underway and were told by
Singleton that he was still trying to get union help and
could not hire them until he learned whether he could get
union help. The Galloways also spoke to the union
steward, Robert Perdue, asking if they could buy a union
book and were told that he was not giving out any
applications and could not sell any books. Perdue gave
them no information about how to apply for union
membership.
Around 1 p.m. Singleton informed the Galloways in
Perdue's presence that he could use them and they should
go in and sign up, but he added that if a "book hand"
came in they would be laid off. Singleton testified that he
told the Galloways that he was using all union men and
would hire them for a few days if they wanted to work
until the union men got there.
Perdue testified that at Singleton's request he called the
dispatcher in the Union's office in Tulsa, Oklahoma, to
have some hands dispatched to the job and that at the
time the Galloways were hired Singleton explained to
them there were union men on their way to go to work
and the Galloways agreed that if they could get a few
days work in the meantime they would be satisfied just to
work until the union hands got there. He admitted the
Galloways did not say "exactly" that they would give up
their employment when the union hands showed up.
Furthermore, Perdue testified that his understanding of
the contract was that the Company was to hire all union
hands and he did not learn until he was later interviewed
by a Board representative (after the Galloways were
terminated) that employees could work for 8 days before
becoming union members.
Robert Galloway testified that prior to the actual hiring
Perdue informed him that if he were hired and if a union
man came along he would have to be laid off. Though not
agreeing, Galloway did not voice any objection.
Both Galloways made repeated applications to Perdue
to become union members. Perdue informed Robert
Galloway that his applications had been taken away from
him and he was not allowed to sell any. On one occasion
Galloway inquired how to get in touch with the Union's
business agent and Perdue replied that the business agent
was out of town. Galloway asked for the agent's telephone
number but Perdue refused to give it to him. Galloway
was aware that Respondent's office was located in Tulsa,
Oklahoma, but did not know where Business Agent Clack
lived or had his office. Perdue never asked Galloway to
become a member of the Union and never explained to
him he would have to become a member after 7 days of
employment to continue work there.
Carnell Galloway twice asked Perdue to sell him -a
union book but received a negative response. On May 19
Galloway asked why he could not join the Union since he
had to pay a cent and a half out of each dollar to the
Union, but Perdue replied he simply had to pay and never
volunteered any information on how Galloway could
become a member.
Perdue admitted that both Galloways asked him about
becoming union members and testified he told them he
was not authorized to sell them a card and that they
would have to get in touch with Tulsa. When they asked
for Clack's telephone number he told them to get in touch
with Tulsa. Clack in turn testified that Perdue never
informed him there were two men on the job who wanted
to become members of the Union.
There was scant dispute concerning the circumstances
under which the Galloways were terminated, Carnell on
May 19 and Robert on June 4.
On May 19 Singleton approached the Galloways, stated
that he had a book hand coming in the next morning, that
he was going to have to let one of them go, and that they
should decide which one it was. Thereupon Carvell stated
that he would go. Singleton testified that Perdue told him
he would have to layoff one of the nonunion men because
a union replacement was coming in the next day and that
he accordingly laid Carnell off. Perdue did not deny
Singleton's testimony.
On June 4 Perdue informed Robert Galloway that a
book hand was coming in the following morning.
Singleton came up and asked Perdue what they were
going to do and Perdue replied that, "Galloway's got to
go." Thereupon Singleton directed Galloway to get his
paycheck. Singleton testified that Perdue told him he had
to lay Galloway off because a (union) helper was coming
in the next morning and that that was the first he knew a
helper was coming in to replace Galloway. Perdue did not
deny that testimony.
Robert Galloway testified further that during his
employment the Company began to rotate the helpers on
the spacer's job and that the helpers were paid while doing
that work at the journeyman rate of $5.55 per hour
instead of the helpers rate of $3.05. When Galloway did
the spacing work, however, he was not paid the
journeyman's rate but only the lower helpers rate. The
matter was discussed with Singleton and Perdue and
Perdue stated that Galloway could not get a journeyman's
pay because he did not have a union book and that if the
payroll were to show a helper getting journeyman's pay,
"the Union would be down there raising hell with him."
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Singleton testified that he did not assign Galloway to
do the spacing work but admitted that he failed to do so
because Perdue told him that Galloway could not perform
journeyman's work unless he had a union book. No issue
was presented as to Galloway's ability to work on the
spacer's job. Galloway testified that he performed spacing
work for a former employer, and Singleton testified he
assumed that Galloway was qualified to do the work and
that he would have assigned Galloway to it if he had a
union book.
Concluding Findings
Twenty years ago the Taft-Hartley amendments
outlawed the closed shop but permitted employer and
union to agree to a union shop under the conditions
provided in Section 8(a)(3) of the Act. The parties here by
contract and by pre job agreement carefully adhered to
the prescribed conditions, reserving to the employer the
right freely to hire at will, both at the start and during the
course of the job. Furthermore, through referrals by the
Union were contemplated, the contract by formula fixed
precise limitations on the number of union referrals,
leaving the employer free otherwise not only to hire
.applicants who were not referred but to reject any who
was referred by the Union.
The evidence showed, however, that as regarded the
Galloways the parties made no pretense of following the
(legal) provisions of their agreement, oral and written, but
enforced instead an (illegal) closed-shop arrangement.
Thus the Galloways were informed that Bauer proposed to
hire only union members, that they could be hired only if
union members were not available and that they would be
"laid off" once union members appeared at the jobsite.
Contemporaneously the Union steward evaded requests by
the Galloways to become union members and gave them
no information concerning their right to employment,
either with or without union membership. Indeed it was
plain from Perdue's admissions that he understood the
contract to be one which required union membership as a
condition of employment and he was ignorant of the union
shop provision under which membership was not required
of new employees until the 8th day of their employment.
In short Respondent made little attempt to disguise the
real nature of the actual hiring arrangements at Chalmette
as constituting a closed-shop of the classic variety under
which nonunion employees were required to yield up
employment upon appearance of union members. To
stress the alleged consent by the employees does not avail
Respondent as a defense for such consent, even if freely
given, cannot legalize closed-shop conditions which were
outlawed by the Taft-Hartley Act.
Neither does the evidence support Perdue's claim that
referred applicants were already on the way at his request.
The pre-job agreement showed that no arrangement was
made to dispatch anyone until after Perdue arrived at the
jobsite. But at that time the Galloways had already
applied for jobs and had been told that only union hands
would be hired if available. It was later that Perdue called
the Union dispatcher in Tulsa to request the referral of
three "book helpers" from the Union.'
It is also evident that the Respondent made no attempt
through Perdue to advise the Galloways of their
obligations under the Union security clause or to afford
'It is also to be noted that on the morning of the 17th, while temporarily
denying employment to the Galloways, Singleton hired at least two union
members at the jobsite who were not referred by the Union
them a reasonable opportunity after due notice to tender
or pay the dues and fees required for membership in the
Union. Indeed it is plain that a tender of dues here would
have been futile in any case, for Perdue obviously did not
want the Galloways to become union members, at least so
long as there were union members who were out of work
and who, under his understanding of the contract, were
entitled to replace nonunion men whenever they came on
the job. A union's duty to employees under a
union-security clause is greater than that exhibited by
Perdue's conduct in this case. Building Construction
Highway Pavers etc. Local 113 International Hod
Carriers Union, 167 NLRB No. 5; cf. N.L.R.B. v. Local
182 Teamsters, 401 F.2d 509, 69 LRRM 2388, 2389 (C.A.
2); N.L.R.B. v. Hotel, Motel, etc, Employees Union,
Local 568, AFL-CIO, 320 F.2d 254, 258 (C A. 3).
The foregoing conclusions are buttressed by Perdue's
refusal to permit the payment of journeymen's pay to
Robert Galloway or his assignment in rotation to spacer's
work because Galloway did not have a union book. That
conduct plainly emphasized Perdue's view that Union
membership was the sole criterion by which the privileges
of employment were to be measured.
I therefore conclude and find that Respondent did not
make its membership available to the Galloways on the
same terms and conditions applicable to other members;
that it caused and attempted to cause Bauer to discharge
Carnell Galloway on May 19 and Robert Galloway on
June 4, and caused and attempted to cause Bauer to deny
spacer's pay to Robert Galloway on and after May 23, for
reasons other than any failure by the Galloways to tender
the periodic dues and initiation fees uniformily required as
a condition of acquiring or attaining membership in
Respondent.
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. By causing and attempting to cause Bauer Dredging
Co., Inc., to discharge Carnell Galloway and Robert
Galloway and by causing and attempting to cause Bauer
to deny spacer's pay to Robert Galloway for reasons other
than any failure by said Galloways to tender periodic dues
and initiation fees and by not making membership
available to the Galloways on the same terms and
conditions generally applicable to other members,
Respondent engaged in unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and
(2) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
as specified below, which I find necessary to remedy and
to remove the effects of the unfair labor practices and to
effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
PIPELINERS LOCAL 798, PLUMBERS
RECOMMENDED ORDER
Pipeliners Local Union No. 798 of the United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States
and Canada, its officers, agents, successors, and assigns
shall:
1 Cease and desist from:
(a) Causing or attempting to cause Bauer Dredging
Co., Inc., to discriminate against any of its employees in
violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act except to the extent that such rights
may be affected by an agreement requiring membership in
a labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act
2. Take the following affirmative action:
(a) Make whole Carvell Galloway and Robert C.
Galloway for any loss of earnings which they may have
suffered by reason of the discrimination against them by
payment to each of them of a sum of money equal to that
which he would have earned from the date of his
discharge to the completion of the Chalmette dredging
job, and including in the case of Robert C. Galloway the
loss of spacer's pay, less his net earnings during said
period (Crossett Lumber Company, 8 NLRB 440), said
backpay to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, together with interest thereon at
the rate of 6 percent per annum. Isis Plumbing & Heating
Co., 138 NLRB 716.
(b) Notify the said Galloways and Bauer Dredging Co ,
Inc., in writing that it withdraws its objections to the
employment of the Galloways on the Chalmette dredging
job and on any other jobs on which either of said
Galloways may be applicants for employment.
(c) Post at, its business offices in Tulsa, Oklahoma,
copies of the attached notice marked "Appendix B."
Copies of said notice to be furnished by the Regional
Director for Region 15, after being duly signed by
Respondent's representative, shall be posted immediately
upon receipt thereof and maintained by it for 60
consecutive days thereafter in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken to
insure that such notices are not altered, defaced, or
covered by any other material.
(d) Forward signed copies of appendix B to the
Regional Director for posting , Bauer Dredging Co., Inc.,
being willing, at all locations where notices to its
employees are customarily posted.
(e) Notify the Regional Director for Region 15, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board's Order is enforced by a decree of the United States
Court of Appeals,. the words "a Decree of the United States Court of
Appeals, the words "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify the Regional Directcr for
Region 15 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX A
ARTICLE II
871
J. At the start of each job, all journeymen shall be
hired by the Employers signatory hereto in accordance
with the following formula and subject to the conditions
set out in Paragraph L hereinafter. All welder helpers
shall be hired in accordance with the same formula.
Number of Number Number
Journeymen Hired Direct Dispatched
Required by Employer by Union
1 :0
2 1 1
3 2
4 3
5 3 2
6 4 2
7 5
8 6
9 6 3
10 6 4
11 6 5
12 6 6
Thereafter, Employer shall have the right to hire the
thirteenth (13th) journeyman and welder helper, and the
Union shall dispatch the fourteenth (14th) journeyman
and welder helper, and they shall alternate thereafter until
the full crew has been employed.
K. Once a job has started, Employer shall have the
right to hire one-half the replacements or additional
journeymen and welder helpers needed, and the Union
shall dispatch the other one-half (Union shall dispatch the
first journeyman; Employer shall hire the second
journeyman; Union shall hire the first welder helper,
Employer shall hire the second welder helper etc.); subject
to the conditions set out in Paragraph L hereafter.
L. The conditions to be followed in the initial hiring or
replacement of employees are:
1. Employer retains the right to reject any job
applicant and may exercise that right before the Union
dispatches any employees required by Employer. Upon
request, Employer will confirm by letter or telegram
any verbal rejections made.
2. The selection of applicants for referral by Union
or hired directly by Employer shall not be based on, or
in any way affected by Union membership, by-laws,
rules, regulations, constitutional provisions or any other
aspect of or obligation of Union membership, policy or
requirement.
3. There shall be no limitation on Employer's right
to select employees with particular classifications or
skills from among the employees hired by Employer
direct. Nor shall there be any limitation on Employer's
right to assign employees to particular classifications
because of the employee's membership or
non-membership in a particular local union.
4. The Union must dispatch the employees requested
by Employer at the start of a job within forty-eight (48)
hours. The Union must dispatch the employees
requested after a job has started within twenty-four (24)
hours. If such employees are not actually en route to
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the jobsite within the time required, Employer may hire
any 'employees from any source In this event, Union
shall not interfere with Employer's right to hire
employees direct.
5. Union agrees that unless Employer requests
otherwise, no journeymen or welder helpers will be
dispatched to Employers job until the welders required
through the referral procedure have actually been
dispatched
APPENDIX B
NOTICE TO ALL MEMBERS OF PIPE LINERS LOCAL UNION
No. 798 OF THE UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND PIPE FITTING
INDUSTRY OF THE UNITED STATES AND CANADA
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Bauer
Dredging Co., Inc., to discriminate against Carnell
Galloway, Robert C. Galloway, or any other employee
in violation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of rights guaranteed
in Section 7 of the Act except to the extent that such
rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act.
WE WILL notify the said Carnell Galloway, Robert
C. Galloway and Bauer Dredging Co., Inc., in writing,
that we withdraw our objections to the employment of
the Galloways on the Chalmette dredging job and on
any other job on which either of said Galloways may be
an applicant for employment.
WE WILL make whole the said Carnell Galloway and
Robert C. Galloway for any loss of pay which either
may have suffered because of the discrimination against
them.
Dated By
PIPE LINERS LOCAL UNION
No. 798 OF THE UNITED
ASSOCIATION OF
JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF
THE UNITED STATES AND
CANADA
(Labor Organization)
(Representative ) (Title)
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.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6361.