Plumbing And Pipe Fitting Industry Of The United States And Canada, Afl-Cio, Local Union 106

National Labor Relations Board - Board Decisions

Mar 15, 1985

274 N.L.R.B. 990 (N.L.R.B. 1985)

990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada , AFL-CIO, Local
Union 106 and Pat Briggs Plumbing , Inc. Case
15-CB-2936
15 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 10 December 1984 Administrative Law
Judge Lawrence W. Cullen issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief in support of the judge's decision.
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, and
conclusions and to adopt the recommended Order.
after due consideration of the positions of the parties and
briefs filed by the General Counsel and counsel for the
Respondent, I make the following
FINDINGS OF FACT AND ANALYSIS'
I. JURISDICTION
The complaint alleges, the Respondent admits, and I
find that the Charging Party is a Louisiana corporation
with its principal office and place of business in Lake
Charles, Louisiana, where it is engaged in the perform-
ance of residential, commercial, and industrial plumbing,
that during the past 12 months preceding the filing of the
complaint, a representative period at all times material
herein, the Charging Party, in the course and conduct of
its business operations, purchased and received goods
and materials valued in excess of $50,000 directly from
points located outside the State of Louisiana, and that
the Charging Party is now, and has been at all times ma-
terial herein, an employer within the meaning of Section
2(2), (6), and (7) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada , AFL-CIO, Local Union #106,
Lake Charles, Louisiana , its officers, agents, and
representatives , shall take the action set forth in the
Order.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me on September 17, 1984, at
Lake Charles, Louisiana. The hearing was held pursuant
to an amended complaint issued by the Regional Direc-
tor for Region 15 of the National Labor Relations Board
on August 27, 1984. The complaint is based on an
amended charge filed by Pat Briggs Plumbing, Inc. (the
Employer or the Charging Party) on August 8, 1984, and
alleges that United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, Local 106 (the
Union or the Respondent) has violated Section 8(b)(1)(B)
of the National Labor Relations Act (the Act) by filing
internal union charges against two of its members, Albert
Lee Caswell and Michael W. Newell, who are also su-
pervisors and representatives of the Employer by accept-
ing and processing the charges, by trying the individuals,
by expelling them from membership in the Union, and by
ordering them to pay individual fines of $3000 to be rein-
stated into the Union. The complaint is joined by the
answer of the Respondent wherein it denies the commis-
sion of the alleged violations of the Act.
On the entire record in this proceeding, including my
observation of the witnesses who testified herein, and at the hearing
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that the Respondent is, and has been at all times material
herein , a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
This case concerns the filing of charges and the trial
and expulsion by the Union of two of its members and
the assessment of reinitiation fees against them for alleg-
edly performing rank-and-file work while the Union was
engaged in concerted action against the Employer. The
Union and the Employer had been parties to a collective-
bargaining agreement which expired by its terms on
April 30, 1984. Following unsuccessful negotiations be-
tween the Union and the Employer the Union rejected
the Employer's final offer on June 19, 1984, and with-
drew its members from their jobs at the Humana Hospi-
tal construction jobsite at which the Employer had been
engaged in performing its services and commenced pick-
eting this site as well as the Employer's business office
and facilities. Jobsite Superintendent Newell and Shop
Superintendent Caswell, both admitted supervisors of the
Employer and members of the Union, continued to per-
form their duties following the work stoppage by the
Union's members against the Employer.
On June 26, 1984, Caswell and Newell and other of
the Employer's employees removed copper pipe from a
supply truck that had made a delivery to the Humana
jobsite by carrying the pipe a distance of approximately
35 feet and placing it in the Employer's truck. This work
took less than 10 minutes. Caswell then drove the truck
containing the pipe to the rear of the building where it
was unloaded by two other employees. Caswell testified
that he remained briefly on the jobsite to inspect the
' The following includes a composite of the testimony of the witnesses
274 NLRB No. 153
PLUMBERS LOCAL 106 (BRIGGS PLUMBING)
work and then left for the day I credit his testimony in
this regard.
Subsequently, on the same day, a fire hydrant on the
jobsite was struck by a bulldozer causing water to flow
onto the parking lot at the rear of the hospital. Newell,
who testified he was fearful that the water would
damage the parking lot, accompanied by a journeyman
plumber, drove to the four water valves on the jobsite
and assisted the plumber in turning them off as the jour-
neyman plumber was having difficulty in turning them
off with the large wrench by himself. Newell testified it
took 2 or 3 minutes to turn off each valve for a total of
10 to 15 minutes.
Newell received a letter dated July 10, 1984, from the
Union's secretary informing him that intraunion charges
had been filed against him on June 27, 1984, by member
Steve Britian and accepted by the Union on July 9, 1984,
which charges alleged that Newell had violated section
42 of the Respondent's bylaws, section 161-204A of the
Respondent's constitution, and Article 18, section 122, of
Respondent's building trades contract by working with
the tools of the trade behind the picket line set up by the
Union at the Humana Hospital construction jobsite
Newell received a second letter dated July 10, 1984, no-
tifying him that intraunion charges had been filed against
him on June 29, 1984, by member Kenneth Crawford
and accepted by the Union on July 9, 1984, alleging vio-
lations of the hereinbefore-cited documents by unloading
copper pipe behind the Union's picket line.
Caswell received a letter dated July 10, 1984, notifying
him that intraunion charges had been filed against him
by Crawford and accepted by the Union on July 9, 1984,
alleging that he unloaded copper pipe behind the Union's
picket line and thereby violated the aforecited rules of
the Union.
Hearings were held by the Union on each of these
charges on August 13, 1984. Both Newell and Caswell
declined to attend. By separate letters dated August 14,
1984, both Newell and Caswell were notified by the
Union's secretary that they had been found guilty of the
charges against them and had been expelled from mem-
bership with reinitiation fee set at $3000.
Both Newell and Caswell appealed the disciplinary
action taken against them by separate letters dated
August 29, 1984. The secretary-treasurer of the Respond-
ent's International Union acknowledged receipt of the
appeals by separate letters to Newell and Caswell dated
September 12, 1984. No further action had taken place as
of the date of the hearing.
At the hearing Gerald L. Ellender, acting union presi-
dent and executive board member, testified that Newell
and Caswell had been found guilty of the charges filed
against them at a hearing held before the Union's execu-
tive board and that the reinitiation fee had been set at
$3000 to discourage them from "becoming a member of
our Local again." He testified that Caswell had violated
his pledge to the Union by working for a contractor that
was not signatory to the contract, by putting transite
pipeline together, by unloading copper pipe from a deliv-
ery truck, and by using a transite (a surveying instru-
ment) to shoot grade (measure grades and elevations on
the jobsite). He was unable to cite a provision of the col-
991
lective-bargaining agreement that provided that the use
of the transite was craftwork. He testified that Newell
had been expelled for unloading pipe from a supply truck
and for using a wrench to open and close valves on a
line being tested instead of allowing the journeyman to
do it.
Caswell testified that no transite pipe was laid during
the strike and that he had not laid any pipe prior to or
during the work stoppage. Newell testified he maintains
a job log of all work performed at the Humana Hospital
jobsite. The job log (G.C Exh. 11) showed that approxi-
mately 1300 feet of transite pipe was laid between Octo-
ber 1983 and April 1984, but showed no transite pipe line
during the work stoppage. Union member Keith Verrett
testified on behalf of the Union that he had obsereved
Caswell on two separate occasions for a total of 5 to 10
minutes installing transite pipe in a ditch between 9:30
and 10 a.m. on the employer's jobsite on the same date
the picket went up and he had also observed Caswell un-
loading pipe from the supply truck.
Newell testified with regard to the use of a transite
that supervisors regularly used the transite as a matter of
common practice as a result of the critical nature of the
work and that the use of the transite by supervisors had
never been challenged in the past by the Union when he
had served as job steward for the Union nor had he ever
heard of the Union previously claiming the transite to be
a craft tool. Acting Union President Ellender acknowl-
edged that prior to the instances cited herein the Union
had never apprised the Employer that it considered the
use of the transite to be journeyman work restricted to
the unit.
Analysis
The General Counsel contends that Respondent disci-
plined Newell and Caswell for performing a minimal
amount of "rank-and-file" work behind its picket line,
that the discipline was not prescribed by Respondent's
internal procedures but rather the discipline restrains and
coerces the Employer in the selection of its representa-
tives for purposes of collective bargaining or the adjust-
ment of grievances, and that the discipline was violative
of Section 8(b)(1)(B) of the Act, citing American Broad-
casting Co. v. Writers Guild, 437 U.S. 411 (1978); Typo-
graphical Union 101 (Washington Post), 242 NLRB 1079
(1979); Operating Engineers Local 501 (Peterson Mfg.), 269
NLRB 685 (1983); Carpenters Wisconsin River Valley
Council (Skippy Enterprises), 211 NLRB 222 (1974); and
Typographical Union No. 18 (Northwest Publications), 172
NLRB 2173 (1968), in support of her position.
The Respondent contends that as the Employer's con-
tract with the Union had expired on April 30, 1984, and
was extended verbally until June 16, 1984, at which time
Briggs (the Employer's president) unilaterally terminated
this extension and instituted unilateral changes in wages
and working conditions, the refusal of the Union's mem-
bers to accept these conditions and continue working for
the Employer constituted a quit or termination of the
employment relationship rather than a strike, that the
Employer replaced these employees with nonunion
workers, that the pickets were informational pickets con-
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerning the substandard wages and working conditions
then in effect, and that, accordingly, any violation attrib-
utable to the Union must concern itself with the adminis-
tration of the contract in relation to the supervisors' rep-
resentation of the Employer and their adjustment of
grievances with the performance of their supervisory
duties.
The Respondent relies on Florida Power Co. v. Electri-
cal Workers Local 641 IBEW, 417 U.S. 790 (1974), for its
position that the discipline by it of its members in this
case did not adversely affect the supervisors' conduct in
the performance of their duties in their adjustment of
grievances or collective bargaining on behalf of the Em-
ployer so as to constitute a violation, as it contends that
negotiations between Briggs individually and the Union
continued without apparent affect subsequent to the es-
tablishment of pickets by the Union, and Newell and
Caswell were not engaged in collective bargaining or the
adjustment of grievances on behalf of the Employer as
none of the Union's members were employed after June
16, 1984. The Union further contends that the instant
case is factually distinguishable from the American Broad-
casting case, cited supra, as in that case the Court specifi-
cally found that supervisor members who did not per-
form unit work were suspended and/or expelled and
fined and that some supervisors did not perform their
regular supervisory duties as a result of the coercion
whereas in the instant case Newell and Caswell contin-
ued in their employment with the Employer and their
discipline by the Union had no affect on their employ-
ment or on the performance of their supervisory duties.
The Respondent further contends that Newell and Cas-
well were not representatives of the Employer in its rela-
tions with the Union as the Employer had unilaterally
terminated its relationship with the Union, citing in sup-
port thereof NLRB v. Amax Coal Co., 453 U.S. 322
(1981), and NLRB v. Electrical Workers IBEW Local 73,
714 F.2d 870 (9th Cir. 1980). The Respondent further
contends that the Board's "de minimus" rule concerning
isolated incidents of brief duration of the performance of
struck work by supervisors wherein it has held such per-
formance of work to be de minimus and not significant
in the overall context of the supervisor's representative
capacity should not be applied in this case as there was
no longer any representative function to be performed by
the supervisors with respect to the Union.
The Union further contends that it would be an un-
warranted denial of its due process to place on it the
burden of proving that Newell and Caswell performed a
substantial amount of craftwork and that its expulsion
and fine of Newell and Caswell is not to be judged by
reasonableness per se citing, NLRB v. Boeing Co., 412
U.S. 67 (1973), but rather the significant question is
whether a distinction was drawn between members in a
supervisory capacity and union members who perform
usual craftwork, contending that the record in this case
is devoid of such distinction. I find these contentions to
be without merit in this case.
A review of all of the testimony in this proceeding dis-
closes the totality of the rank-and-file craftwork alleged
by the Union to have been performed by Newell and
Caswell was de minimus . Thus in the case of the remov-
al of the copper piping from the supply truck, the time
spent by Newell did not exceed 10 minutes and the time
spent by Caswell did not exceed 10 minutes. With re-
spect to the shutoff of the valves by Newell, I credit the
testimony of Newell that this was an emergency situation
which required immediate action and that he merely as-
sisted a journeyman who was unable to shut off the
valve by himself. The total time spent by Newell in turn-
ing off the valves did not exceed 10 minutes. With re-
spect to the alleged engagement by Caswell of laying
transite pipe, assuming, arguendo, that the witness pro-
duced by the Union were to be credited, by his own ac-
count the total time he observed Caswell performing this
work did not exceed 15 minutes.
With respect to the Union's contention that the tran-
site instrument is a tool of the trade to be used exclusive-
ly by rank-and-file members, I find the contention unsup-
ported by the evidence. Thus the Union produced no
documentation that the use of this tool is reserved exclu-
sively to members performing rank-and-file work.
Rather, the work jurisdiction in the expired labor agree-
ment contained no reference to the use of this tool.
Acting Union President Ellender candidly acknowledged
that he was not aware whether the Employer had ever
been apprised that the Union considered this instrument
a tool of the trade reserved exclusively for members per-
forming rank-and-file work. Rather I credit the testimo-
ny of Newell and Caswell that the tool was used routine-
ly by members of management and/or supervisors with-
out challenge by the Union prior to the instant case.
Moreover, there was no testimony presented by the
Union as to the amount of time the transite tool was used
by either Caswell or Newell, assuming, arguendo, that its
use constituted the performance of rank-and-file work.
Notwithstanding the testimony developed at the hear-
ing regarding the de minimus nature of the rank-and-file
work performed by Newell and Caswell, the Union re-
mains steadfast in its contention that it properly disci-
plined its members Newell and Caswell. However, I find
that a review of the applicable legal precedents warrants
a conclusion that the Union's actions in disciplining its
members Newell and Caswell were violative of the Act.
Initially, I find that the work stoppage engaged in by
the Union's members against the Employer following the
Union's rejection of the Employer's final offer constitut-
ed a strike rather than a quit or severance of the employ-
ment relationship . It is well established that when em-
ployees engage in a work stoppage against an Employer
because of a dispute over wages, terms, and conditions of
employment as occurred in this case, those employees
are engaged in a strike and there is no severance of the
employer-employee relationship in the absence of cir-
cumstances which would warrant such a finding. I find
that no such circumstances have been shown in this case,
even accepting the Union's contention that the pickets
were informational pickets only. Thus, the Employer-em-
ployee relationship continued. See American Mfg. Con-
cern, 7 NLRB 753, 759 (1938). I also find that the
Board's reservoir doctrine is applicable in this case as
Newell and Caswell were admitted supervisors author-
ized to handle employee grievances absent any evidence
PLUMBERS LOCAL. 106 (BRIGGS PLUMBING)
submitted by the Union to, the contrary. Further, Newell
and Caswell specifically testified that they had the au-
thority to adjust employee grievances. I credit their testi-
mony which was unrebutted in this regard. Carpenters
Wisconsin River Valley District Council, supra.
It is clear that the Employer's position in dealing with
employees who are members of the Union could be com-
promised in the future if Newell and Caswell were to be
subjected to the Union's discipline for the performance
of the minimal amount of rank-and-file work involved
herein. Nor does the Union's legitimate interest appear
jeopardized by the minimal amount of work perfomed by
Newell and Caswell in this case. It is clear that Newell
and Caswell otherwise remain subject to union discipline
for the performance of rank-and-file work so as to pro-
tect the Union's legitimate interest. Rather, the minimal
performance of rank-and-file work by Newell and Cas-
well falls within the Board's recent decision in Operating
Engineers Local 501, supra, wherein the Board approved
without comment the decision of the administrative law
judge that the discipline of its supervisor members of a
union for performance of a minimal amount of rank-and-
file work violated Section 8(b)(1)(B) of the Act. See also
American Broadcasting Co. v. Writers Guild, supra, and/or
Typographical Union 101, supra. I thus find that the
Union violated Section 8(b)(1)(B) of the Act by initiat-
ing, and accepting and processing charges, and trying
Newell and Caswell and imposing disciplinary action on
them in this case
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operation of
the Employer, Pat Briggs Plumbing, Inc., set out in sec-
tion I, above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent, the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By initiating and processing internal union charges,
and by accepting and processing the charges, and by
trying and imposing disciplinary actions on Michael W.
Newell and Albert Lee Caswell, including their explu-
sion from the Union and the imposition of a $3000 fine
on each of them as a condition of their reinitiation into
the Union, the Respondent violated Section 8(b)(1)(B) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section
993
8(b)(1)(B) of the Act, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes of
the Act.
The Respondent shall also be ordered to rescind the
proceedings, hearing, fines, and disciplinary actions in-
cluding that of explusion of Newell and Caswell to un-
conditionally reinstate them as members of the Respond-
ent with the same rights and benefits as they previously
enjoyed, to expunge its records of all references of'the
aforesaid unlawful action taken against them, and to
make them whole for any losses they may have sufered
thereby with interest in the manner provided in Florida
Steel Corp., 231 NLRB 651 (1977),2 and notify Newell
and Caswell in writing thereof.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent , United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada , AFL-CIO, Local
Union #106 , its officers , agents, and representatives, shall
1. Cease and desist from
(a) Initiating or proceeding with charges , hearings, or
other disciplinary actions, or the imposition of fines
and/or explusion of its supervisor members Newell and
Caswell or any other supervisor of the Employer be-
cause of their conduct and the performance of work as
the selected representatives of the Employer for the pur-
poses of collective bargaining or the adjustment of griev-
ances
(b) Restraining and coercing the Employer , Pat Briggs
Plumbing, Inc., in the selection of its representatives for
the purposes of collective bargaining or the adjustment
of grievances.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Rescind any and all proceedings , hearings , fines,
and disciplinary actions including that of explusion
which have been directed against its members Newell
and Caswell.
(b) Unconditionally reinstate Newell and Caswell as
members of the Respondent with full rights and benefits
previously enjoyed and make them whole for any losses
sustained by them in accordance with the recommended
remedy.
(c) Expunge its records of any references to the
charges and proceedings and actions taken against
Newell and Caswell as set out above
(d) Notify Newell and Caswell in writing of these ac-
tions.
2 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
a 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
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its business office in Lake Charles, Louisi-
ana copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Regional
Director for Region 15, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt 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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT initiate or process charges or hold hear-
ings or take any other disciplinary actions, including the
imposition of fines and penalties, or the explusion from
membership, against Michael W. Newell and Albert Lee
Caswell because of their conduct and performance of
work as the selected representatives of Pat Briggs
Plumbing, Inc. for the purposes of collective bargaining
or the adjustment of grievances.
WE WILL NOT in any like or related manner restrain
and coerce Pat Briggs Plumbing, Inc. in the selection of
its representatives for the purpose of the adjustment of
grievances and collective bargining.
WE WILL in any and all proceedings, fines and other
disciplinary actions including explusion directed against
Michael W. Newell and Albert Lee Caswell.
WE WILL unconditionally reinstate as members of this
Union Michael W. Newell and Albert Lee Caswell with
full rights and benefits as union members, and WE WILL
MAKE them whole for all losses sustained by them as a
result of our unlawful actions taken against them, with
interest.
WE WILL expunge from our records any and all refer-
ences to the charges, proceedings, and actions directed
against Michael W. Newell and Albert Lee Caswell.
WE WILL notify Newell and Caswell in writing that
we have taken the aforesaid actions.
UNITED ASSOCIATION OF JOURNEYMEN,
AND APPRENTICES OF THE PLUMBING ,AND
PIPEFITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL-CIO, LOCAL
UNION 106