Plumbers & Steamfitters, Local 60

National Labor Relations Board - Board Decisions

Apr 13, 1970

181 N.L.R.B. 1095 (N.L.R.B. 1970)

PLUMBERS & STEAMFITTERS, LOCAL 60
Plumbers and Steamfitters , Local Union No. 60,
AFL-CIO and The Albach Co., Inc. Case
15-CC-382
April 13, 1970
DECISION AND ORDER
By Members Fanning , Brown , and Jenkins
On November 20, 1969, Trial Examiner Thomas
F. Maher issued his Decision in the above-entitled
proceeding and on the same date, the case was
transferred to and continued before the Board. In
his Decision, the Trial Examiner submitted that a
brief was filed by the Respondent, that he had
considered the entire record, including the brief filed
with him, and, upon the basis thereof, he concluded
and found that there was no evidence that the
Respondent had engaged in the unfair labor practice
conduct alleged in the complaint. He therefore
recommended that the complaint be dismissed in its
entirety.
On November 24, 1969, a motion was filed with
the Board by counsel for the General Counsel
stating that a brief submitted to the Trial Examiner
had not been referred to in the Decision as having
been either received or considered and that the case
should therefore be remanded for the purpose of
reopening the case and receiving the General
Counsel's brief and reconsidering the case in light of
that brief.
After review by the Board, it was determined that
a brief had been prepared and the failure of the
Trial Examiner to receive a copy was not the fault
of the General Counsel. Accordingly, on December
2, 1969, the Board issued an Order Remanding
Proceeding to Trial Examiner, wherein the Trial
Examiner was directed to give full consideration to
the brief of counsel for the General Counsel and
reconsider his Decision in the light of said brief, and
to make such resolutions, findings, conclusions, and
recommendations as were warranted by the
reconsideration.
On January 6, 1970, Trial Examiner Maher issued
his Supplemental Decision finding that the
Respondent had not engaged in the unfair labor
practice conduct alleged in the complaint and
recommending that the complaint be dismissed in its
entirety. Thereafter, the General Counsel filed
exceptions to the Decisions and a supporting brief.
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 no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Supplemental Decision,
1095
the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
It is ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F MAHER, Trial Examiner Upon a charge
and amended charge filed on March 12 and June 19,
1969, respectively, by the Albach Co , Inc., herein referred
to as Albach, against Plumbers and Steamfitters, Local
Union No 60, AFL-CIO, Respondent herein, the
Regional Director for the Fifteenth Region of the
National Labor Relations Board, herein referred to as the
Board, issued a Complaint on behalf of the General
Counsel of the Board alleging violations of Section
8(b)(4)(i) and (ii)(B) of the National Labor Relations Act,
as amended (29 U.S.C., Sec. 151 et seq ), herein called the
Act. The Complaint was thereafter amended on August
14, 1969, and again orally at the hearing.
In its duly filed Answer Respondent, while admitting
certain allegations of the Complaint, denied the
commission of any unfair labor practice
Pursuant to notice a trial was held before me in New
Orleans, Louisiana, where all parties were present,
represented by counsel, and afforded full opportunity to
be heard, present oral argument and file briefs with me. A
brief was filed by the Respondent on October 1, 1969.
Upon consideration of the entire record, including the
brief filed with me, and specifically upon my observation
of each witness appearing before me, I make the
following.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE BUSINESS OF THE CHARGING PARTY
The Albach Co., Inc., Charging Party herein, is a
Louisiana corporation engaged in the manufacture and
sale of structural steel, duct work, pressure vessels,
storage tank piping, and related products at its Chalmatte,
Louisiana, plant. In the course and conduct of its business
it purchased and had delivered to it from Orleans
Materials and Equipment Company, Inc., rolled steel,
structural steel shapes, and related materials. During the
annual period ending on August 1, 1969 its purchases
from Orleans were valued in excess of $58,000. Of the
materials, thus sold to Albach by Orleans all of it was
shipped directly to Orleans from states other than the
State of Louisiana, including Alabama and Illinois, as
well as from Japan and West Germany.' Upon these facts
I conclude and find that The Albach Co., Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and 8(b)(4) of the Act.
Moreover, Westinghouse Engineered Maintenance
Company, an interested party to these proceedings, is a
division of Westinghouse Electric Corporation and it and
'The credited testimony of Benjamin S Brupbacher , Jr., and Howard
Read
181 NLRB No. 174
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Carbide Corporation at whose plant the alleged
unfair labor practice occurred have been found by the
Board on numerable occasions to be employers engaged in
commerce within the meaning of the Act.
II. THE STATUS OF THE RESPONDENT
It is admitted and I conclude and find that Plumbers
and Steamfitters , Local Union No 60, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ISSUE
Evidence of unlawful inducement and encouragement of
employees by the Union or its agents.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
Westinghouse Engineered Maintenance Company has
an agreement with Union Carbide Corp. to perform all
repair, replacement and maintenance work at its Taft,
Louisiana, plant. In the performance of this contract
Union Carbide provides the warehousing and purchasing
required by Westinghouse to carry out its maintenance
operations. Westinghouse operates a Union
Carbide-owned pipe fabricating shop where materials
supplied by Union Carbide are fashioned to accommodate
the particular job at hand
The piping in what was known as the "A" unit had
been found to be excessively corroded and unsafe Union
Carbide issued an order to Westinghouse pursuant to its
agreement whereby this piping was to be completely
replaced. Westinghouse proceeded to fabricate the pipe
and fittings for the job and installed it as a replacement to
the defective lines
In mid-January, as the renovation was going on apace,
an error was found in the stainless steel supplied
Westinghouse by Union Carbide Thus the material
ordered and fabricated into the newly installed pipe and
fittings, "316 ELC, stainless," turned out to be "304
stainless " Although these two grades of pipe were
indistinguishable upon ordinary inspection, there was an
intrinsic difference between the two, the "304" being
highly susceptible to corrosion and entirely unsuitable for
the job at hand. As a consequence of this mistake the
installed piping had to be removed and new piping of 316
ELC stainless steel fabricated and installed. The new
materials were procured, fabrication of the pipe was
performed, and installation substantially was under way
by January 28, when it was found that there would be
need for two 45 degree elbows not yet fabricated from the
new material o
When the error in material specifications was
discovered Union Carbide made all of the purchase
arrangements for procuring the correct "316" steel in
accordance with its usual purchasing practices. This
prefabrication of the piping was performed, as was the
faulty piping before it, in the Westinghouse shop by
members of the Pipefitters, in accordance with an
agreement outstanding between Westinghouse and the
several unions, including the Pipefitters, Respondent
herein, who represented Westinghouse's employees It was
determined that this installation was critical to the
continued operation of the plant and that time was of the
essence. Accordingly, the fabrication of the new pipe was
expedited in the shop and it was determined by Union
Carbide that the needed 45 degree elbows could most
expediously be procured from an outside fabricating shop
rather than being fabricated in the shop as originally
planned by Westinghouse and Union Carbide. Union
Carbide therefore issued a purchase order to Albach,"the
Charging Party, and the new 45 degree elbows of the
required 316 grade of steel were delivered to Westinghouse
on January 28 for installation in the renovated pipe
system.
When the welder foreman, Hogan, assigned the job of
fitting the two 45 degree elbows to the fabricated pipe a
welder and fabricator informed him that they would not
install these fittings because they did not bear the Union
"bug" or label indicating that they had not been
fabricated in a Pipefitters Union shop. Each of the other
welders and pipefitters were asked to install the fittings
and each refused for the same stated reason.
Whereupon Westinghouse's project manager, James
Coombes, called in the Union's steward, Edward Fink,
and informed him of the problem. Also present at this
meeting were Westinghouse's industrial relations manager,
Gerald T. Brady, and the general maintenance
superintendent, Robert Trotter. Fink indicated that he was
aware that "unbugged" fittings had been received, and he
doubted that Coombes could get welders to do the job.
When Coombes asked him if he would interfere if a
welder could be found in the shop who could be persuaded
to do the job Fink said that he would not I Fink then
suggested that Coombes present his problem to the
Union's representative, Bertoneau . At this time, in Fink's
presence, Coombes asked Trotter, the general
maintenance superintendent, to poll the welders. Trotter
went out to the shop and did this. Fink remained in the
office while Trotter visited with the men. When Trotter
returned saying no one would weld the pipe Fink, by his
own admission at the hearing, told Coombes that "he had
the right to go ahead and fire the men if he wanted."
Meanwhile Brady reached a Mr. Quinn, a
representative of the Union, Bertoneau being absent.
Upon being apprised of the fact that the pipefitters would
not complete the work with the "unbugged" elbows Quinn
simply expressed his sympathy for their problem and
stated that he had no suggestion to offer as to how
Westinghouse could get the job done. Coombes then
called the Union Carbide warehouse and instructed them
to pick up the elbows.
Elbows were installed on the job several days after the
events detailed above, but neither of the Westinghouse
people who testified concerning the installation, Industrial
Relations Manager Brady or Trotter, could say where
these elbows came from.' Union Steward Fink credibly
testified, and without contradiction, however, that two
days later the same elbows were installed. Describing the
circumstances surrounding the installation Fink stated.
And I was passing through and the foreman called
me over, and two of the men, and the two men told me
they had marked these and these were the same two
'There is a conflict in testimony between Fmk and Coombes as to
whether Fink, who was not a qualified welder, was asked by Trotter to
perform the welding As this fact is not germam to the issue at hand I find
it unnecessary to resolve this discrepancy in the testimony of two otherwise
credible witnesses
'Brady testified only that Hartman , Union Carbide's purchasing agent,
had told him that the disputed elbows were not installed Hartman was not
called as a witness
PLUMBERS & STEAMFITTERS, LOCAL 60 1097
90's brought back and brought to their warehouse and
brought them back , and the foreman made the same
remark . They were marked with a center punch or
hacksaw.
Describing this same incident upon cross-examination
Fink stated:
I asked the men to do me a favor because the "A"
unit was shut down . Westinghouse was in a bind,
Carbide was in a bind and I asked them to do me a
favor and would direct (sic) it if they would put in in,
which they done.
Moreover , he credibly testified , and I so find , that to his
knowledge no one on his or on Local 60's behalf ever told
the men not to work on these particular elbows.
B. Conclusions
It is alleged that the Respondent Union, through its
officers and agents, has violated Section 8(b)(4)(i) and
(ii)(B) of the Act,4 by "inducing and encouraging
employees of Westinghouse" "to refuse to install certain
materials," specifically the elbows referred to above, for
purposes and objects proscribed by the Act.
Upon consideration of the facts found herein, and
indeed upon all of the testimony adduced at the trial
before me, I fail to perceive how this allegation has been
established By the admissions of General Counsel's
witnesses no one representing the Union was known to
any of them to have urged, suggested or instructed any
employee not to work on the disputed elbows Nor was
any employee called to testify that they had been so urged
or instructed. As the record stands the refusal of the
individual pipefitters was a personal, individual refusal by
each one requested to do the work. The only positive
evidence that would relate the Union to this request was
Fink's credited testimony, corroborated by Westinghouse's
own official, Brady, that when it was reported that the
employees had been requested by Trotter to do the work,
and refused, Fink told Westinghouse's Operation Manager
Coombes that "he had the right to go ahead and fire the
men if he wanted." Upon such evidence I have no
alternative but to conclude and find that the Respondent
had no part whatsoever in the men's refusal to install the
disputed elbows on January 28. By way of substantiation
of the Union's position in this overall transaction I further
conclude and find not only that it was blameless but that
in fact upon Union Steward Fink's subsequent request the
men withdrew their objections and installed the elbows.
Upon the foregoing, therefore, I conclude and find that
there is no evidence of a violation of Section 8(b)(4)(i) and
'Section 8(bx4)(i) and (iXB) provides as follows
It shall be an unfair labor practice for a labor organization or its agents
to engage in, or to induce or encourage any individual employed by any
person engaged in commerce or in an industry affecting commerce to
engage in a strike or a refusal in the course of his employment to use,
manufacture , process, transport , or otherwise handle or work on any
goods, articles, materials , or commodities or to perform any services; or
(ii) to threaten , coerce, or restrain any person engaged in commerce or
in an industry affecting commerce , where in either case an object thereof
is (B) forcing or requiring any person to cease using, selling , handling,
transporting , or otherwise dealing in the products of any other producer,
processor , or manufacturer , or to cease doing business with any other
person, or forcing or requiring any other employer to recognize or
bargain with a labor organization as the representative of his employees
unless such labor organization has been certified as the representative of
such employees under the provisions of section 9. Provided , That nothing
contained in this clause (B) shall be construed to make unlawful, where
not otherwise unlawful , any prunary strike or primary picketing
(ii)(B) of the Act, as alleged in the Complaint, and I
accordingly recommend that the Complaint be dismissed
in its entirety.
SUPPLEMENTAL TRIAL EXAMINER'S
DECISION
THOMAS F. MAHER, Trial Examiner: On November 20,
1969, a Trial Examiner's Decision was issued by me in
this matter and on the same date, pursuant to appropriate
order, the case was transferred to the National Labor
Relations Board. On November 24, 1969, a motion was
filed with the Board by counsel for the General Counsel
stating that a brief submitted to me had not been referred
to by me in my Decision as having been either received or
considered and that the case should therefore be remanded
to me for the purpose of reopening the case and receiving
the General Counsel's brief and reconsidering the case in
the light of that brief
After full review by the Board it was determined that
although a brief had not been received by the Trial
Examiner such a brief had in fact been prepared and
issued by counsel for the General Counsel. Accordingly,
on December 2, 1969, the Board issued an Order
Remanding Proceeding to Trial Examiner, wherein I have
been directed to give full consideration to the brief of
counsel for the General Counsel which has been supplied
me with the Board's Order, to reconsider my Decision in
the light of said brief, and to make such resolutions,
findings, conclusions and recommendations as are
warranted by my reconsideration.
Upon reconsideration of the entire record, including
Respondent's brief filed with me, and specifically upon my
observation of each witness before me, and upon
consideration of the brief of counsel for the General
Counsel, I make the following-
FURTHER FINDINGS OF FACT AND CONCLUSIONS OF
LAW
A reading of General Counsel's brief delineates the
issues upon which he relied throughout the hearing,
namely (1) that the authority of Job Steward Edward
Fink was such as to bind Respondent by his action or
inaction, (2) that the employees, in their refusal to work
on the disputed elbows, acted in a manner which clearly
established union control, and (3) the sum total of the
circumstances surrounding the refusal established union
control thus denominating the employees' refusal a
violation of Section 8(b)(4)(i) and (ii)(B) of the Act by
Respondent.
To support the proposition that Job Steward Fink had
authority in behalf of the Respondent to direct the men to
work or not work it is suggested that Fink's testimony,
which I have credited, to the effect that he had no such
authority "belles the realities of normal steward functions
in industrial relations." And again, "the steward must
possess more authority and influence than that of mere
conversational persuasion by virtue of his office alone."
Quite apart from the fact that I have credited Fink's
disavowal of such authority, I do not consider myself
bound to gauge the basic elements of this case, here
agency of the steward, by what in some other set of
circumstances may be "normal steward functions" or
those which he "certainly must possess." In any event it is
well established that absent constituted authority to the
contrary no inference of such authority can be drawn from
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that the individual holds the office or that he
conducts himself as an individual union member.' I
accordingly conclude and find that at no time relevant to
the proceedings herein did Employee Edward Fink act as
agent or representative of the Respondent
To equate the activities of the individual employees
with directed union action would involve an exercise in
logic that does not comport with the facts. Throughout his
brief counsel refers to the concerned individuals as
employees and union members, interchangeably. That they
are both, and this is certainly not denied, does not
establish that what they do individually in either or both
capacities they do at the Respondent's direction. This is a
conclusion that simply does not follow from the premises
stated. All that appears in the record is that nineteen
individual employees, all members of the Union, acted
individually in what each one presumably deemed to be in
his best interests and that of the organization to which he
belonged. Until it can be shown, as it has not been shown
here, that the employees were directed by Respondent to
refuse to weld the disputed elbows I am not disposed to
provide such a fact by speculation alone
Finally it is suggested that "through these bits and
pieces" the Union is responsible for the action of the men.
It is possible, no doubt, to indulge in a series of inferences
and speculations and reach a conclusion that would
implicate the Respondent here. The facts before me,
however, would not alone lead to such a conclusion. And I
am not disposed to indulge in the compounding of
inferences to reach a result that the evidence of itself
would not provide. I accordingly reaffirm my findings and
conclusions previously made that Respondent has not
engaged in conduct in violation of Section 8(b)(4)(i)( ii)(B)
of the Act.
RECOMMENDED ORDER
It is recommended that the Complaint in this proceeding
be dismissed in its entirety.
'Budding and Construction Trades Council of Tampa and Vicinity,
AFL-CIO, 132 NLRB 1564. 1569