Plumbers, Local Union No. 44

National Labor Relations Board - Board Decisions

Jan 31, 1967

162 N.L.R.B. 1343 (N.L.R.B. 1967)

PLUMBERS , LOCAL UNION NO. 44 1343
Washington State Association of the United Association of
Journeymen and Apprentices of the Plumbing and P i ftting
Industry of the United States and Canada: and its member
Local Union No. 44, and their agents W. J. Linahan, Stanley
Gerrard, Grant A. Wood, Vic H . Mills, R. C. Leffler and Vern
Embly and Bingham Mechanical & Metal Products, Inc. Case
lO-CB-1101. January 31, 1967
DECISION AND ORDER
On November 7, 1966, Trial Examiner Phil Saunders issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had not engaged in certain unfair labor practices within the
meaning of the National Labor Relations Act, as amended, and rec-
ommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
Charging Party filed limited exceptions 1 to the Decision and an
accompanying affidavit. The Respondents filed a brief in answer to
the Charging Party's exceptions.
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 [Members Fanning, Jenkins, and Zagoria].
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 entire
record in this case, including the Trial Examiner's Decision, the
exceptions, the answering brief, and the deposition of Charles S.
Burdell, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
It is hereby ordered that the complaint be, and it hereby is, dismissed
in its entirety.
1 In its exceptions the Charging Party argues that the Trial Examiner 's Decision should
be declared invalid because of the failure of the Trial Examiner to consider the deposition
of Charles S. Burdell introduced by Respondents during the hearing. We have read the
deposition and find no evidence-nor does the Charging Party call our attention to any
such evidence-which would invalidate the findings , conclusions , or recommendations of
the Trial Examiner. Accordingly , we find no merit in the Charging Party ' s exceptions.
2 The Trial Examiner in his discussion indicates that he might have reached a different
conclusion had the dispute reached the board of negotiators . In the affidavit accompanying
its exceptions , the Charging Party alleges that the dispute did reach the board of negotia-
tors. However , the complaint alleges only the conduct of the Respondents on or about
January 14 , 1966, to be violative of the Act , and no party sought at the bearing to adduce
any evidence regarding the circumstances surrounding a later meeting by the board of
negotiators , although such meeting allegedly took place prior to the hearing in this pro-
ceeding. The issue raised by the Charging Party is beyond the scope of the complaint.
In any event it was not so fully litigated In the course of the hearing as to provide the
Board with a sufficient basis upon which to make a determination on the merits . Accord-
ingly, under these circumstances , we find it unnecessary to pass upon this aspect of the
Trial Examiner ' s Decision, and the Charging Party's motion to reopen the record is denied.
162 NLRB No. 116.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Pursuant to a charge filed on January 19, 1966, and an amended charge filed on
March 29, 1966, by Bingham Mechanical & Metal Products, Inc., herein called
Bingham or the Company, the General Counsel issued a complaint dated March 29,
1966, against the Washington State Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States and Canada, and its
member Local Union No. 44, and their agents W. J. Linahan, Stanley Gerrard,
Grant A. Wood, Vice H. Mills, R. C. Leffler, and Vern Embley, herein called
Respondent Association, Respondent Local 44, Respondent agents, and jointly called
the Respondents The complaint alleges that the Respondents engaged in unfair
labor practices within Section 8(b) (1) (B) of the National Labor Relations Act,
as amended.' In a duly filed answer, the Respondents denied the unfair labor prac-
tice allegations. Pursuant to due notice, a hearing was held before Trial Examiner
Phil Saunders in Spokane, Washington, and all parties were given full opportunity
to examine and cross-examine witnesses , to introduce relevant evidence, to argue
orally, and to file briefs.
Upon the entire record in the case and from my observation of witnesses, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Company is an Idaho corporation with its office and principal place of busi-
ness in Moscow, Idaho, and is engaged in the installation of plumbing, heating, and
air-conditioning equipment in new and remodeled buildings. The Company annually
purchases, transfers, and delivers to its shop piping, refrigeration and air-conditioning
operations, materials and other goods valued in excess of $50,000, and which
are transported to said shop from points outside the State of Idaho. It is conceded,
and I find, that the Company is an employer engaged in commerce and in an opera-
tion affecting commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Association and Respondent Local No. 44 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that on or about January 14, 1966, Bingham notified F. J.
Mackin, business manager for Respondent Local 44, of the Company's desire to
have John R. Morris act as the Company's representative or agent for the purpose
of handling labor disputes and grievances arising between Bingham and the Respond-
ents, and that on the same date W. J. Linahan, secretary of the Respondent Associa-
tion , notified Bingham and other employers that the Respondents would decline to
recognize John Morris as the representative of the employers, and at all times there-
after the Respondents have refused to recognize Morris as the duly-authorized repre-
sentative for Bingham.
This record shows that collective bargaining in the plumbing and pipefitting indus-
try in the State of Washington has been carried on in a statewide multiemployer
basis since 1964. There is now in effect an agreement between the Respondent Asso-
ciation and employers operating within the jurisdiction of their local unions, which
agreement is known in the industry as the Washington State Agreement, herein the
Agreement. This Agreement became effective initially in 1946, but has since been
modified and otherwise revised. The bargaining has been conducted through a body
known as the Washington State Board of Negotiators. The Washington State Em-
ployer's Council represents the employers and the Respondent Association is the
certified agent on behalf of the Union.2
1 Section 8(b) (1) (B) provides that it is an unfair labor practice for a labor organiza-
tion or its agents "to restrain or coerce . . . (B) an employer in the selection of his
representatives for the purposes of collective bargaining or the adjustment of grievances."
2 In 1954 there was a certification of the Respondent Association by the Board's Regional
Director in Case 19-RC-1507. The certification was amended in 1965 to change the em-
ployers' group name to "Washington State Employers' Council for the Plumbing & Pipe
Fitting Industry." This was done by order of the Board's Regional Director in Case
19-Ac-1.
PLUMBERS, LOCAL UNION NO. 44 1345
The General Counsel's position is that the Respondents in this case have failed or
refused to allow a member of the Washington State Employers' Council to select
their own representative to appear on behalf of an individual employer (Bingham)
to present grievances during the term of the Agreement. The Respondents argue
that Bingham's demand is a matter of much deeper significance because it is in con-
travention of 20 years of custom, usage, and method of dealing, and was viewed by
the Respondents as a threat to its statewide bargaining unit and contract, and that,
therefore, the Respondents were reasonably justified in assuming that it did not have
to recognize Morris for the purposes for which he demanded. These are the basic
issues involved in this pioceeding
William J. Linahan, secretary of the Respondent Association, testified that the
board of negotiators-the body that made the Agreement involved herein-consists
of six representatives from labor and six representatives from management. Linahan
stated that the Agreement sets forth the procedures for handling of grievances, and
that grievances are usually handled through a Joint Conference Board, hetem the
Conference Board, which consists of three labor and three management represent-
atives, and that the Conference Board decision is final unless there is an appeal to
the board of negotiators.
Business manager for Respondent Local 44, F. J. Mackin, testified that there was
a formal grievance filed by Bingham under the terms of the Agreement to the Con-
ference Board. Mackin stated that he appeared before the Conference Board for the
purpose of handling the Respondent Locals position as to the two grievances filed
by Bingham Mackin further testified that Bingham then presented his side of the
controversy or grievances to the Conference Board and that he-Mackin-presented
his side. Mackin stated that one of the grievances pertained to work that comes
under his jurisdiction, and the other grievance had to do with a "walk off." In ieply
to the question as to whether anyone in the past was ever allowed to appear before
the Conference Board other than the employer himself, Mackin replied, "In a case
where we have had a contractor in here from out-of-state then his top level manage-
ment who was involved in the dispute on the job has appeared. Generally the super-
intendent. This has also been a rare occasion." Mackin could not recall any
instances where an attorney appeared before the Conference Board to plead the
management side of a grievance.
John Morris, executive director of the Spokane Mechanical Contractors-
Associa-tion, testified that he attempted to represent Bingham in the handling of his griev-
ances. Morris stated that on January 13, 1966, Bingham called him about the walk-
off on a job and asked him to intercede in his behalf. Morris then called Mackin
to discuss the situation with him, and was informed by Mackin that he did not have
to deal with Morris as a representative of Bingham.
Raymond Leffler, business manager for Local Union 598 and a member of the
Washington State Board of Negotiators, testified that he had participated in a num-
ber of settlements on grievances. Leffler was also asked whether it was the custom
and practice to permit, on the employer's side, anyone other than a person directly
connected with the employer, or on the union side, a regular business agent or
representative of the union to appear at grievance procedures. Leffler replied as
follows: "Only in the form of a witness and in the form of a witness we would
allow any members who had knowledge of the grievance." Leffler further testified
that while serving on the State board of negotiators he has heard talk and conver-
sations "quite often" about the split in the statewide unit, and that both labor and
management have always resisted any such attempt.
This record shows that on or about January 13, 1966, John Morris caused to be
delivered to Mackin and Linaham a letter dated May 25, 1965,3 which designated
Morris as the "certified agent" of 12 mechanical contractors for the purpose of
dealing with the Respondents in regard to labor disputes? On January 14, 1966.
Morris also presented to Mackin another letter addressed to Mackin and signed
by Bingham.5 This letter notified Mackin that Bingham had designated Morris as
Bingham's agent for the purpose of negotiating and dealing with Mackin and the
Respondent Association "on any and all matters pertaining to the employment of
the members of your Union, under the terms of the Washington State Agreement,
except for the actual negotiation of a labor contract, which agency has already
placed in the Washington State Employers Council." On January 14, 1966, these
3 Attached to General Counsel's Exhibit 1-a
4 Bingham was one of the mechanical contractors so designating Morris
5 Attached to General Counsel's Exhibit 1-a and marked Exhibit "B."
264-047-67-vol. 162-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demands were also rejected by Linahan in a letter to the 12 mechanical contractors,6
in which Linahan advised the contractors that the Respondent Association recog-
nized only one certified agent and that was the Washington State Employers' Coun-
cil for the Plumbing & Pipe Fitting Industry, and referred to the certification of
the Board and the amended certification, as aforestated.
Before attempting to make my final conclusions in this case I will set forth
some of the pertinent sections of the current Agreement ( General Counsel's
Exhibit 2).
Section 5(c) at page 10 of the Agreement provides in part: "No individual
employer or group of employers and no Local Union shall have the power to mod-
ify, revise, supplement or otherwise amend this Agreement."
The powers of the board of negotiators are defined in part, as follows:
Section 17. Duties of the Board of Negotiators. (A) The Board shall have the
power to negotiate for and on behalf of the Employer's Council and the
Association. The Board shall have full and sole power to establish and deter-
mine, modify and amend any and all terms and conditions of employment
within the bargaining unit including, for purposes of description and not for
limitation, wages, overtime, travel time , subsistence payments, isolation pay,
premium pay, employee benefit programs , and any and all other allowances
and conditions of employment. [ Emphasis supplied.]
The board of negotiators also serves as a board of arbitrators. Its powers here
are generally described in Section 17(C) of the Agreement at page 15 as follows:
(C) The Board shall conduct arbitration hearings of the informal type where
need therefore arises upon the demand of either the Employer or the Associa-
tion pursuant to a recommendation and referral of any one of the Joint Local
Conference Board provided for hereinafter . Arbitration shall be limited to
the settlement of a difference of a dispute arising hereunder and incapable of
adjustment and settlement between the parties at the level of the Joint Local
Conference Board involving:
i. Interpretation of any clause or provision of the Agreement.
ii. Alleged violations of the Agreement.
Further detailing the powers and duties of the Board , it is stated in Section 17(E)
ix page 19 as follows:
iv. In addition to the specific powers and duties described and detailed in this
section , the Washington State Board of Negotiators has full power to do any
and all things necessary to negotiate , supervise , and administer this Agree-
ment including , on it own motion , the initiation of any investigation or the
conduct of any hearing required and the adoption and publishing of any and
all procedures and rules necessary to effectuate the provisions and the intent
of this Agreement not otherwise provided for herein . [Emphasis supplied.]
The powers of the Local Joint Conference Board , sitting in arbitration (which
constitutes step 3 of the grievance procedure ), are, on the contrary , greatly limited.
Section 19 (d) page 22 of the Agreement provides as follows:
(d) No Joint Conference Board shall vary, modify, revise, supplement, alter
or amend this Agreement in any particular for any purpose without having
secured the prior written approval of the Washington State Board of Negotia-
tors to do so.
Section 20(b) (3) page 23 of the Agreement provides , in part, as follows:
In the event the Joint Conference Board determined that the grievance involves
the interpretation or application of the terms of this Agreement rather than
a dispute of fact, the whole dispute shall be referred to the Washington State
Board of Negotiators for arbitration under Section 17, (c), hereof.
The Respondents introduced into this record , as Respondents ' Exhibit 3, a series
of extracts from minutes of meetings of the board of negotiators to show and
illustrate how the board of negotiators , functioning within the broad powers
described above, does in fact exercise these powers and does administer , interpret,
vary, modify, and supplement the contract.
6 Exhibit C-attached to General Counsel's Exhibit 1-a.
PLUMBERS, LOCAL,UNION NO., 44 1347
Steps one and two of the grievance procedure as set forth in section 20 of the
Agreement are the usual provisions. In step one the shop or job steward deals with
the foreman or superintendent. If no adjustment is leached the grievance then
goes to the union business representative. In step two the business representative
meets with the employer, "or his top-level management directly." In step three the
grievance is placed before the Conference Board by either the employer or the union
business representative and the matter is set for a hearing. The Agreement provides
that at this hearing "the paitees shall all be heard orally." [Emphasis supplied.]
It is well established that when a collective-bargaining agreement is not clear as
to the meaning of the terms, a resort of extrinsic evidence to show the intent of
the parties is permitted as an exception to the parol rule. I believe that the con-
tractual language in issue here contains such ambiguities as to permit resort to such
extrinsic evidence.
In the instant case the testimony of Mackin and Leffler is to the effect that under
the established practice only a person directly connected with the employer or a
regular business agent for a union appears before the Conference Board in the
process of their grievance with exception of witnesses. There is no contention that
Morris was directly connected with Bingham within the language as used here in
the Agreement, nor is there any contention that he was to appear before the Con-
ference Board as a witness.? That it was the intention of the parties to limit the
participation in the grievance procedure to persons directly connected with an
employer, or to a regular union business agent, also appears from another aspect
in Leffler's testimony. Leffler stated that both labor and management had consist-
ently and continually resisted any attempt to split their statewide unit . This fact also
blends itself into the Respondent's overall contention that they did not want out-
siders unfamiliar with the Agreement and their problms coming into the picture
and handling grievances. The General Counsel made it clear that he was not
attacking the unit in this case, but, nevertheless, the above contention and testimony
directly bears on the intent of the parties and in an assist in explanation and
clarification of ambiguities in the agreement under consideration here. This record
shows that the Respondents saw Bingham's efforts as a threat to their bargaining
unit and to their certification, and, as indicated in past Board decisions, had the
right to protect their interests in these respects.
As pointed out this case is far different from the ordinary one where a union
refuses to deal with some employer or some employer representative. Here the
employer representative has been certified. It is the Washington State Employers'
Council for the Plumbing &Pipe Fitting Industry. There is no contention that there
has been any restraint or coercion in• causing any employer to select such a repre-
sentative, and Morris openly admitted that he had no authorization whatever from
the Washington State Employers' Council It appears clear to me that the employers
had fully exercised their rights under Section 8(b)(1)(B) in the selection of their
representative for the purposes of collective bargaining or the adjustment of griev-
ances. However, here Bingham and 12 other Spokane employers want to designate,
outside of the Agreement, and a legal determination of the Board, another agent
for part of the same purposes. Under the circumstances and the Agreement here
involved, the Respondents were not required to accept such fragmentation of repre-
sentation by an outsider..
Further, even assuming, arguendo, that an employer covered by the-Agreement
had a right to designate another agent for purposes of presenting grievances-
the facts and circumstances here are such that even so the Respondents were justi-
fied in refusing Morris as Bingham's agent because the scope of his authority
exceeded the subject matter of grievances. The letter of January 14, 1966, by Bing-
ham to Mackin, as previously pointed out 'herein, stated that Bingham designated
-Morris for the purpose of negotiating and dealing "on any and all matters" under
the terms of the Agreement except for the actual negotiation of a labor contract. In
essence, Bingham was notifying Respondent Local 44 that he wanted Morris to act
as an agent in implementing and administering the Agreement, and by the express
terms in the Agreement these powers are, reserved to the board of negotiators. I
agree with the Respondents that if Bingham actually had .the intent of designating
Morris for the limited purpose ,of, grievances-his letter belies such intentions and
scope. Also the letter of May 25, 1965, as previously referred to herein , designates
7 As previously indicated herein Morris was. denied an appearance before the'Conference
Board, and Bingham , himself, appeared and argued his side of the grievance.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morris as the "certified agent" and that he was to act for the 12 employers in "labor
disputes." It is clear that this was merely an attempt to accomplish a form of certi-
fication equivalent to certification by the Board.
In my final conclusions it is also noted that Section 5(c) of the Agreement states
that no individual employer or union shall modify, revise, or amend the agreement.
In reality the letters on May 25, 1965, and the one on January 14, 1966, attempted
to amend the Agreement. They must fail in their objective for the reasons and
circumstances stated above. It is further noted that under section 19 of the Agree-
ment the Conference Board could not vary, modify, or amend the Agreement.
Therefore, even if the Conference Board had desired to entertain Morris as an
agent of Bingham or of the other employers they would have been powerless to
do so. Had the grievances in question reached the board of negotiators we might
possibly have had a different result or conclusion as the board of negotiators has
the full power to do all things necessary to supervise and administer the Agree-
ment including the conduct of hearings and the adoption of rules and procedures.
I need not, however, decide or consider this case on such a basis or premise as the
grievance never reached the board of negotiators nor were any of the correspond-
ence, letters, or any other contact directed to the Board of Negotiators. This record
makes it crystal clear that in the first three steps of the grievance procedure in the
Agreement-and the only steps directly involved here-there was no power, duty,
or authority to modify in any way or interpret the Agreement even at the Confer-
ence Board level.8
While the Agreement does not specifically define the composition of the
"employer" and "parties" under the grievance procedure, the credited testimony, as
well as the long recognized custom and practice, reveals that other than witnesses
only an individual directly connected with the employer, or a regular business
agent, are persons allowed to appear before the Conference Board, and I am
completely satisfied that this interpretation permitting only such appearances on
grievances has been adopted and ratified over a period of many years by the board
of negotiators. In the final analysis this is not a case where the Respondents refused
someone directly connected with the Employer. It is not a proceeding where some-
one was refused an appearance after prior designation by the Washington State
Employers' Council. It is not a case where the Washington State Employers' Coun-
cil itself sought to be recognized under the Agreement at the grievance level, and
it is not a proceeding involving the exercise of discretion or policymaking in execu-
tion or administration of the Agreement because the grievances in question never
formally reached the policymaking level-the board of negotiators.
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. The Company is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Respondent Association and Respondent Local 44 are labor organizations
within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint that the Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8(b)(1)(B)
of the Act have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case , it is recommended that the complaint herein be
dismissed in its entirety.
This case is clearly and easily distinguished from such Board decisions In Local 25,
Marine Division, International Union of Operating Engineers , AFL-CIO ( American Dredg-
ing Company ), 149 NLRB 519 , and like cases , wherein 8 ( b) (1) (B) violations were found
in situations lacking disagreements on contractual terms, and wherein the unions in-
volved clearly indicated that the retention of the employers representative would result
in serious trouble, strikes , and/or walkouts . In the instant case we have an apparent
disagreement on terms in the Agreement , and there was no contention whatsoever of
Respondents here making any statements about strikes , troubles , or any other such
implications.