Plumbers Local 420 (Carrier Corp.)

National Labor Relations Board - Board Decisions

Jul 17, 2006

347 N.L.R.B. 563 (N.L.R.B. 2006)

PLUMBERS LOCAL 420 (CARRIER CORP.)
347 NLRB No. 53
563
United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the
U.S. and Canada, Steamfitters Local 420, AFL–
CIO (Carrier Corporation and H.T. Lyons, Inc.)
and Kip Traffican and John C. Csekitz. Cases
4–CB–9413 and 4–CB–9421
July 17, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND KIRSANOW
On April 27, 2006, Administrative Law Judge Richard
A. Scully issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the U.S. and Canada, Steamfitters Local
420, AFL–CIO, its officers, agents, and representatives,
shall take the action set forth in the Order.
Andrew Brenner, Esq., for the General Counsel.
Stephen J. Holroyd, Esq., of Philadelphia, Pennsylvania, for the
Respondent Union.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. Upon
charges filed by Kip Traffican and John C. Csekitz on February
23 and March 2, 2005, respectively, the Regional Director for
Region 4 of the National Labor Relations Board (the Board),
issued a consolidated complaint on June 28, 2005, alleging that
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the U.S. and Canada,
Steamfitters Local 420, AFL–CIO (Respondent), had commit-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The judge inadvertently included language for Respondent em-
ployers in the introductory portion of his recommended Order. We
have substituted our standard Board language for Respondent unions.
ted certain violations of Section 8(b)(1)(A) and 8(b)(2) of the
National Labor Relations Act (the Act). The Respondent
filed a timely answer denying that it had committed any vio-
lation of the Act.
A hearing was held in Philadelphia, Pennsylvania, on Oc-
tober 4, 2005, at which all parties were given a full opportu-
nity to examine and cross-examine witnesses and to present
other evidence and argument. Briefs submitted on behalf of
the parties have been given due consideration. Upon the
entire record and from my observation of the demeanor of
the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Carrier Corporation (Carrier), a
Delaware corporation with a facility in Plymouth Meeting,
Pennsylvania, has been engaged in installing and servicing
HVAC equipment. During the year preceding October 4,
2005, in the course and conduct of its business operations,
Carrier provided services valued in excess of $50,000 outside
the Commonwealth of Pennsylvania. The parties have stipu-
lated, and I find, that at all times material, Carrier was an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
At all times material, H.T. Lyons, Inc. (Lyons), a Pennsyl-
vania corporation, with offices in Allentown and Scranton,
Pennsylvania, has been engaged in performing sheet metal,
plumbing, and pipefitting services. During the year preced-
ing October 4, 2005, in the course and conduct of its business
operations, Lyons performed services valued in excess of
$50,000 outside the Commonwealth of Pennsylvania. The
parties have stipulated, and I find, that at all times material,
Lyons was an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find, that at all times mate-
rial, the Respondent was a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent violated Sec-
tion 8(b)(1)(A) and (2) of the Act by causing or attempting to
cause Carrier and Lyons to refuse to hire Kip Traffican and
John Csekitz, respectively, because they were members of
Local 420 who had gone to work for Merck, an employer
that did not have a collective-bargaining agreement with the
Union.
A. Kip Traffican
Kip Traffican has been a member of the Respondent since
1978. He went through its apprenticeship program and had
continued to pay his union dues up to the date of the hearing.
He worked for Carrier for about 10 years before leaving its
employ in the mid-1980s. For about the last 3 years, he has
worked in the utilities department at Merck Pharmaceutical
(Merck). He is also a member of PACE International Union,
AFL–CIO (PACE) which represents him in his position at
Merck.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD564
Merck does not have a collective-bargaining agreement with
the Respondent and, in November 2004, Business Agent Daniel
Hill filed internal union charges against Traffican alleging that
Traffican had violated the Respondent’s rules and its Interna-
tional Union’s constitution by working in the HVAC depart-
ment “for Merck, a non-signatory firm.” Traffican was found
guilty by the Respondent’s Executive Board, which fined him
$5000, expelled him from the Union, and imposed a $5000 fee
for reinstatement. That decision is on appeal to the Interna-
tional Union.
Carrier has a collective-bargaining agreement with the Re-
spondent. Their longstanding practice involves “open solicita-
tion,” whereby the employer can hire a member in good stand-
ing without going through the Union. In January 2005, Traffi-
can learned that Carrier had an opening for an absorber me-
chanic. He contacted Carrier Service Manager Thomas Jones
and expressed his interest in the absorber mechanic position.
Jones said that he was interested in hiring Traffican and ar-
ranged for him to come in for an interview. When Traffican
arrived at the interview, Jones told him that he would hire him
right then but that he had talked to Daniel Hill and the Union
would not let him hire Traffican. Traffican asked who Hill was
to stop Jones from hiring him. Jones responded that Hill would
make his life miserable and that it was not worth the aggrava-
tion he would have if he hired Traffican. Since that time, Traf-
fican has not been hired by Carrier.
Jones testified that Carrier had need of an absorber mechanic
in the latter part of 2004 and that he had talked to Hill about
finding someone to fill the position. Two or 3 months later,
after Traffican had been in contact and indicated his interest in
filling that position, Jones contacted Hill by telephone, went
over his need for an absorber mechanic, and told him that he
was considering hiring Traffican. Hill responded, “no fucking
way.” Their conversation ended with Hill saying he would
continue to look for someone to fill the absorber mechanic
position.
Jones decided not to hire Traffican because of Hill’s re-
sponse. Jones has been a member of the Respondent since
1980. He said that he was aware of the fact that there were
“issues” between Local 420 and the members who had gone to
work for Merck and that Local 420 had filed charges against
them. It was because of this that he contacted Hill before hiring
Traffican even though under “open solicitation” he was not
required to do so and he has hired others in the past without
seeking Hill’s approval, although he has informed Hill of the
new hire “out of professional courtesy.” In this case, he con-
tacted Hill because he “knew what was going on” between the
Union and the members who had gone to work for Merck. He
testified that he “chose not to pursue hiring Kip Traffican out of
respect for working with the Local. Their [sic] viewpoint was
not to hire him and I went along with that.” Jones said that he
tries to maintain the best working relationship possible between
Carrier and Local 420 and he felt that hiring Traffican after
Hill’s comment “would certainly tarnish that relationship.”
Analysis and Conclusions
A union violates Section 8(b)(1)(A) of the Act when it dis-
criminates against members in retaliation for their protected
activities. E.g., Newspaper & Mail Deliverers (City & Sub-
urban Delivery), 332 NLRB 870 fn. 1 (2000); Teamsters
Local 705 (Pennsylvania Truck Lines), 314 NLRB 95 fn. 4
(1994); Carpenters Local 626 (Strawbridge & Clothier), 310
NLRB 500 fn. 2 (1993). A union violates Section 8(b)(2)
when it causes or attempts to cause an employer to discrimi-
nate against an employee in violation of Section 8(a)(3) of
the Act. It need not threaten or coerce the employer into not
hiring the individual, so long as the employer accedes to its
request. Laborers Local 334 (Kvaerner Songer), 335 NLRB
597, 600 (2001).
In the present case, the evidence establishes that Hill, an
admitted agent of the Respondent, refused to permit Carrier
to hire Traffican, a member of Local 420, because he had
engaged in protected activity by going to work for Merck, a
non-signatory employer. In his testimony, Hill admitted to
having a conversation with Jones about Carrier’s need for an
absorber mechanic in which Jones mentioned the possibility
of hiring someone who was working at Merck. According to
Hill, Jones raised this possibility and told Hill not to “get
mad at him” because of it. Hill said he responded that he did
not know what Jones meant, that there was open solicitation,
and told Jones “you can do whatever you want to do.” Hill
said he could not recall if anyone’s name was mentioned in
the conversation and denied telling Jones that he could not
hire individuals who were working at Merck. Hill did recall
telling Jones at the end of the conversation that he would
continue to look for an absorber mechanic for Carrier. I
credit the testimony of Jones concerning the conversation
and find that when Jones raised the possibility of hiring Traf-
fican, Hill said “no fucking way” and that this clearly con-
veyed to Jones that Hill did not want him to hire Traffican.
Under the circumstances, there is simply no reason to credit
Hill rather than Jones. Given that Jones was willing to re-
frain from hiring an absorber mechanic he sorely needed
rather than incur the Respondent’s displeasure, it is unlikely
that he would fabricate such a comment by Hill if he had not
said it. It is even more unlikely that Jones would forego
hiring an absorber mechanic he sorely needed if Hill not only
had expressed no reservations about his doing so but also
reminded Jones that there was open solicitation and he could
do whatever he wanted.
The Respondent contends that the evidence does not es-
tablish that it requested that Carrier not hire Traffican. I do
not agree. The prohibitions in Section 8(b)(1)(A) and (2) of
the Act would have little meaning if they only applied to
directly stated demands to discriminate. The cases cited by
the Respondent in which no violations were found involve
situations where there was no evidence of action by the un-
ion and the employer acted out of a general concern that it
might have trouble with the union if an employee was hired
or retained or because of its perception that to not hire the
individual might please the union. That is not the case here.
Jones contacted the Union’s agent, Hill, who responded to
Jones’ inquiry about hiring Traffican by saying “no fucking
way.” I find this amounts to an unambiguous request on the
part of the Respondent that Carrier not hire Traffican, a re-
quest to which the employer acceded. It was clearly the only
PLUMBERS LOCAL 420 (CARRIER CORP.) 565
reason that the employer failed to fill its pressing need for a
qualified absorber mechanic by hiring Traffican. By the end of
his conversation with Jones, Hill was aware that Traffican was
not going to be hired because he told Jones he would continue
to try and find a qualified absorber mechanic, which Hill ac-
knowledged is a “rarity.” In this conversation with Jones, Hill
made it clear that he did not want Carrier to hire Traffican and
understood that it was not going to do so.
Based on these facts, I find that the Respondent violated Sec-
tion 8(b)(1)(A) and (2) of the Act by causing Carrier to not hire
Traffican.
B. John Csekitz
John Csekitz has been a member of the Respondent since
1988. He went through its apprenticeship program and as of
the date of the hearing was a member in good standing. Since
June 2002, he has worked as a utilities mechanic at Merck. He
is also a member of PACE which represents him at Merck. He
had previously worked for Lyons for at least 10 years and after
leaving its employ had continued to do consulting work for it.
Mark Weidner is employed by Lyons as a special projects
team manager and his duties include hiring employees. Lyons
has a collective-bargaining agreement with the Respondent
which covers employees on Weidner’s team and he is a mem-
ber of Local 420. Weidner testified that he knew Csekitz from
his employment at Lyons and that in January 2005 he had a
conversation with Csekitz who had come into Weidner’s office
to make some copies of prints for the house he was building.
During the course of their conversation, Weidner asked Csekitz
if he would be interested in a control sales job and they dis-
cussed the type of job that Weidner had in mind. Csekitz said
that he was somewhat interested but that was already employed
at the time. Weidner testified that when he talked to Csekitz
about working for Lyons the position they discussed was not
available to be filled as it did not actually exist. The proposed
position would involve sales of retrofit controls an area in
which Lyons was considering entering in order to expand its
business. Before the position could have been filled, Weidner
would have had to write a job description and make a formal
offer. He did not take any steps to create the position after
discussing it with Csekitz who told Weidner he would consider
it, but never got back to him to say he would take it.
Weidner also testified that at some point he had a conversa-
tion with Frank Bellosi, who is an organizer with the Respon-
dent, about the possibility of Lyons’ hiring some individuals
who were working at Merck, including Csekitz. He said that he
talks to Bellosi regularly and he could not say with certainty
whether this conversation was before or after he spoke with
Csekitz about possible employment with Lyons. Bellosi re-
quested that Weidner wait until after the Union’s executive
board meeting before hiring anyone who was working at
Merck. Weidner responded “that would be fine.” According to
Weidner, this meeting had been scheduled in order for the
members working at Merck, “to confirm that they’re in good
standing with Local 420.” Bellosi did not tell Weidner that he
could not hire Csekitz and did not ask him not to do so.
Csekitz testified that in January 2005, he had a telephone
conversation with Weidner who told him about an opportunity
for employment at Lyons and asked if he was interested.
Csekitz said that he was interested but said that Weidner had
better check with Local 420 as he thought it might object.
Weidner said that he would get back to Csekitz. About a
week later, Csekitz had another telephone conversation with
Weidner and asked if he had spoken to the Union. Weidner
responded that the Union did have some issues with hiring
Csekitz at that time. Csekitz said that the conversation he
had with Weidner while in his office making prints for his
house took place in March 2005 and that Wayne Hoke was
also present. Weidner mentioned a job opportunity that was
“custom-tailored” to Csekitz’s skills. He explained what was
involved and asked if Csekitz was interested. When Csekitz
indicated that he was interested, there was a discussion about
Bellosi’s wanting Lyons to wait until Csekitz met with the
executive board of the Union. This confused and upset Cse-
kitz because no charges had been brought against him by the
Union. They then had a general discussion about what was
going on with the Union. Csekitz was not contacted again
about employment with Lyons. The Union later filed
charges against Csekitz for working at Merck, a nonsignatory
employer and a trial was held. Csekitz was found guilty of
the charges, fined $5000, expelled from the Union, and as-
sessed a $5000 reinitiation fee.
Analysis and Conclusions
The issue in the case of Csekitz is whether Bellosi’s action
in asking Weidner to wait until Csekitz appeared before Lo-
cal 420’s executive board before hiring Csekitz constituted
discrimination against him and violated the Act.1 I find that
it did not.
I find the testimony of Weidner about his discussion with
Csekitz concerning the possibility of employment with Ly-
ons in 2005, which he placed in January not March as did
Csekitz, to be the most credible.2 I find that the credible
evidence establishes that Weidner and Csekitz had a conver-
sation in which Weidner inquired whether Csekitz had an
interest in a position that Lyons was considering creating.
While Csekitz, who at the time was a full-time employee at
Merck, expressed some interest, he did not tell Weidner that
he wanted the position or take any action to apply for it. As
a result Weidner took no action to create the position, which
would not have been a part of the bargaining unit represented
by Local 420, and did not actually offer it to Csekitz or to
anyone else. I find that the evidence fails to establish that

1 I find, based on the credible and consistent testimony of
Weidner and Bellosi, that they did have a conversation in which the
subject of Lyons’ hiring Local 420 members who had gone to work
for Merck, including Csekitz, was discussed and that Bellosi asked
Weidner not to do so until after an upcoming meeting of the Union’s
executive board dealing with the standing of such members with the
Union was held.
2 I do not credit the testimony of Wayne Hoke about the conversa-
tion in Weidner’s office in which he said that Weidner, in effect, told
Csekitz Lyons was not allowed to hire him because of the Union.
Hoke appeared to have no present recollection of what was said or
by whom during the conversation and was giving his impression of
what occurred rather than recounting what was actually said. Hoke
placed the conversation in January 2005.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD566
Bellosi attempted to cause Lyons not to hire Csekitz or that it
did not do so because Bellosi asked Weidner to wait until Cse-
kitz appeared before the Union’s executive board. The evi-
dence is unclear when Bellosi and Weidner had their discussion
about the possibility of hiring members of Local 420. Accord-
ing to the testimony of Weidner, it may well have been before
he even talked to Csekitz about the possibility of employment.
If so, and Weidner felt that he could not hire Csekitz, there
would have been no reason to even discuss the position with
him. I do not credit Csekitz’s testimony that he first talked to
Weidner about employment with Lyons in a telephone call in
January in which Csekitz allegedly suggested that Weidner
contact the Union to see if it objected to hiring him. Csekitz
had continued to work for Lyons on a part-time basis, up to 200
hours per year, after leaving its full-time employ and going to
work at Merck, apparently, without any objections by the Un-
ion. I find it more likely that Weidner told Csekitz about his
conversation with Bellosi when he talked to Csekitz in his of-
fice about the possibility of coming to work for Lyons.
Lyons’ failure to hire Csekitz did not result from its acceding
to the Union’s request but from Csekitz’s failure to follow up
on his discussion with Weidner and Weidner’s failure to take
action to create the new position because Csekitz did not pursue
it. Under these circumstances, to hold that there was a causal
connection between Bellosi’s conversation with Weidner and
the fact Csekitz was not hired for a job that did not actually
exist would be pure speculation. I shall recommend that the
allegations concerning Csekitz be dismissed.
CONCLUSION OF LAW
By causing or attempting to cause Carrier Corporation, an
employer within the meaning of the Act, not to hire Kip Traffi-
can because he had engaged in protected activity, the Respon-
dent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(b)(1)(A) and (2) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act. I shall recommend that the
Respondent be ordered to notify Carrier Corporation that it has
no objection to its hiring Kip Traffican and that the Respondent
make Kip Traffican whole for any loss of earnings and other
benefits, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
The Respondent, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the
U.S. and Canada, Steamfitters Local 420, AFL–CIO, Phila-
delphia, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Causing or attempting to cause Carrier Corporation or
any other employer to refuse to hire or otherwise discrimi-
nate against Kip Traffican or any other employee because
they have engaged in activity protected by the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order notify Car-
rier Corporation that it has no objection to the hiring of Kip
Traffican.
(b) Make Kip Traffican whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of
this decision.
(c) Within 14 days after service by the Region, post at its
union office in Philadelphia, Pennsylvania, copies of the
attached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region 4,
after being signed by the Respondent’s authorized represen-
tative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(d) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Carrier Corporation, if will-
ing, at all places where notices to employees are customarily
posted.
(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed in-
sofar as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.”
PLUMBERS LOCAL 420 (CARRIER CORP.) 567
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT cause or attempt to cause Carrier Corporation
or any other employer to refuse to hire or otherwise discrimi-
nate against Kip Traffican or any other employee because they
have engaged in activity protected by the Act.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL within 14 days from the date of this Order notify
Carrier Corporation that we have no objection to the hiring
of Kip Traffican.
WE WILL make Kip Traffican whole for any loss of earn-
ings and other benefits suffered a result of the discrimination
against him, plus interest.
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE FITTING
INDUSTRY OF THE U.S. AND CANADA,
STEAMFITTERS LOCAL 420, AFL–CIO