Steamfitters Local Union 395, Etc.Download PDFNational Labor Relations Board - Board DecisionsJun 22, 1960127 N.L.R.B. 1453 (N.L.R.B. 1960) Copy Citation STEAMFITTERS LOCAL UNION 395, ETC. 1453 Steamfitters Local Union 395, United Association of Journey- men & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, AFL-CIO' and Marshall Maintenance. Case No. 3-CD-41. June 22, 1960 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF THE CASE This proceeding arises under Section 10(k) of the Act, which provides that "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen. . . ." On February 10, 1960, Marshall Maintenance filed with the Re- gional Director for the Third Region a charge alleging, in substance, that since on or about February 5, 1960, the Steamfitters had violated Section 8 (b) (4) (D) of the Act by threatening, coercing, and restrain- ing Marshall Maintenance and inducing and encouraging one or more individuals to engage in a strike or refusal to work with the object of forcing or requiring Marshall Maintenance to assign certain work to members of the Steamfitters rather than to the regular employees of Marshall Maintenance. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the Regional Director investigated the charges and provided for an appropriate hearing upon due notice to the parties. The hearing was held before William Naimark, hearing officer, on March 11, 1960, at Buffalo, New York. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Marshall Maintenance filed a brief with the Board. Upon the entire record in this case, the Board 2 makes the following : FINDINGS OF FACT 1. Marshall Maintenance is a New Jersey corporation engaged in the business of repairing, building, installing, and moving machinery, and also developing and installing special devices in factories. Dur- ing the past 12 months Marshall Maintenance received in excess of 1 The named labor organization is herein called Steamfitters 2Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Board has delegated its powers in connection with this case to a three- member panel [ Chairman Leedom and Members Bean and Jenkins]. 127 NLRB No. 164. 1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $50,000 for services performed outside the State of New Jersey. During the same period Marshall Maintenance paid in excess of $50,000 for goods purchased from outside the State of New Jersey. We find that Marshall Maintenance is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. Steamfitters is a labor organization within the meaning of the Act. 3. The dispute : A. The facts On February 2, 1960, Marshall Maintenance commenced work on the installation of stainless steel piping pursuant to a contract with Klenzade of New York, Inc., which had contracted with Buffalo Milk Producers Cooperative Association for the installation of milk- processing equipment in a milk plant which was under construction at Cheektowaga, New York. Ray Katzmar, field supervisor and hand heliarc welder, and Frank Watson, machine heliarc welder, were the only two persons employed by Marshall Maintenance at the milk plant during the period herein material. On February 5, 1960, Matthew J. Crawford, a business agent of the Steamfitters, appeared at the milk plant and introduced himself to Katzmar. There is a conflict in the testimony as to the statements made by Crawford thereafter. Testimony adduced by Marshall Maintenance indicates that when Crawford learned that Katzmar and Watson were nonunion workers he informed Katzmar that construc- tion of the milk plant was a union job and the work they were doing would have to be done by union men. Katzmar then called Richard N. Marshall, president of Marshall Maintenance, on the telephone and introduced Crawford to him. According to the witnesses of Marshall Maintenance, Crawford then informed Marshall that the work being done by Marshall Maintenance was steamfitters work, that it belonged to Steamfitters, and that only Steamfitters men would be permitted to do the work. Evidence presented by Marshall Maintenance indicates that Crawford also stated that if no arrangement could be made he would have to close down the job by putting pickets around the milk plant. Further testimony for Marshall Maintenance indicates that Craw- ford told Lyman Baker, the general manager of Buffalo Milk Pro- ducers, that Steamfitters' people should do the pipe-erection work being done by nonunion men. Also that on February 9 and 11, Craw- ford told Baker and others that the pickets, referred to hereinafter, would not be withdrawn unless he had either Baker's or Marshall's assurance that union men would do the stainless steel piping work in the milk plant. STEAMFITTERS LOCAL UNION 395, ETC. 1455 Crawford testified for the Steamfitters that he never on any occasion demanded that the work be assigned to Steamfitters members, but rather only requested that members of Steamfitters be given an oppor- tunity to qualify for the work which Marshall had asserted was too specialized to be performed by men other than those of Marshall Maintenance because of the specialized process being used for the first time in a milk plant in New York. Crawford further denied that he had ever said that the pickets would not be removed until the work had been given to Steamfitters members. Record facts indicate that on February 9, the Steamfitters placed five or six pickets at two entrances to the milk plant. The pickets carried banners which read : Employees of Marshall Maintenance are not members of Steam- fitters Local 395, AFL-CIO. Such picketing continued until February 19. On and after Febru- ary 22 banners were not carried, but individuals passed out leaflets at the only gate to the plant which was usable. Work on the milk plant virtually ceased from the time the picketing commenced as employees of other contractors and subcontractors re- fused to enter the plant. Katzmar returned to work the afternoon of February 11. Watson, the other employee of Marshall Maintenance, did not return to work at the milk plant. On March 4, 1960, the District Court for the Western District of New York issued an order granting a temporary injunction against the Steamfiitters which enjoined picketing or distribution of leaflets at the milk plant pending final disposition of the dispute. B. Contentions of the parties Marshall Maintenance asserts that Steamfitters violated Section 8(b) (4) (D) of the Act by activities constituting threats, coercion, and restraint of Marshall Maintenance and inducement of individuals not to work with an object of causing Marshall Maintenance to assign the installation of stainless steel piping to Steamfitters members rather than to employees of Marshall Maintenance who were nonunion. Although it did not file a brief or make a formal statement of position at the hearing, Steamfitters apparently asserts that it merely attempted to have its members considered as qualified applicants for the disputed work; that the picketing was informational only; and that since February 22 no picketing has taken place but only the distribution of leaflets. APPLICABILITY OF THE STATUTE Section 10(k) of the Act empowers and directs the Board to hear and determine disputes out of which Section 8(b) (4) (D) charges 1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have arisen. However, before the Board may proceed to a determina- tion of the dispute in Section 10 (k) proceedings, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated. It is admitted that the picket line was established by Steamfitters. The Board has held that, apart from the literal appeal of picket signs, the picketing itself constitutes an act of inducement or encouragement of employees not to perform services for the picketed employer, and that such picketing for unlawful purposes, whether or not successful in bringing about a strike or refusal to perform services for the employer, is within the proscription of Section 8(b) (4) (i) (D) 3 Marshall Maintenance presented evidence which indicates that Steamfitters demanded assignment of particular work to its members rather than to the nonunion employees of Marshall Maintenance and that when its demands were not met it picketed the Buffalo Milk Producers plant to force such assignment. Steamfitters' testimony denies there was a demand for assignment of the work. Without resolving the conflicting testimony,4 we find that there is reasonable cause to believe Steamfitters did demand the assignment of particular work and attempted to effectuate its demands, thereby violating Sec- tion 8 (b) (4) (i) (D) of the Act. Again, without resolving the conflicting testimony, we find there is reasonable cause to believe that Crawford warned Richard N. Marshall, president of Marshall Maintenance, that the job would be picketed if he did not accede to Crawford's demands and that Craw- ford later announced at a meeting of Baker and contractors perform- ing work at the Buffalo Milk Producers' plant that the pickets would only be withdrawn if Baker or Marshall would assure him that the work would be assigned to members of Steamfitters. Thus there is reasonable cause to believe that Steamfitters violated Section 8 (b) (4) (ii) (D) of the Act.' MERITS OF THE DISPUTE As indicated above, there is evidence that the dispute involved the assignment by Marshall Maintenance of the installation of stainless steel piping to its own employees, who were nonunion, rather than to members of Steamfitters. It is well established that an employer is free to make work assignments without being subject to pressures by a labor organization seeking the work for its members, unless the 3 Local 472 , International Laborers Union , Heavy and General Construction , AFL-CIO, et at . ( Ernest Renda Contracting Company , Inc ), 123 NLRB 1776 4 It is unnecessary in this proceeding for us to resolve such conflicts in testimony. International Brotherhood of Electrical TVorlers, Local 190 , AFL-CIO, et at (The Southern New England Telephone Company), 121 NLRB 1061, footnote 3, and cases cited therein. 5 See International Hod Carriers , Building and Common Laborers ' Union of America, Local No 1140, AFL-CIO ( Gilmore Construction Company ), 127 NLRB 541. CUPPLES COMPANY MANUFACTURERS, 1457 employer is thereby 'failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work, or unless an employer is bound. by an agree- ment to assign the work in dispute to the claiming union. Steam- fitters has. no order, certification, or contract claim to the work. Ac- cordingly, we find that it is not entitled, by means proscribed by Section 8 (b) (4) (D), to force or require Marshall Maintenance to assign the disputed work to members of Steamfitters rather than to Marshall Maintenance's own employees. However, we are not by this action to be regarded as making an assignment of the disputed work. DETERMINATION OF DISPUTE On the basis of the foregoing findings of fact, and the entire record in this case, the Board makes the following determination of dispute Pursuant to Section 10 (k) of the Act : 1. Steamfitters Local Union 395, United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, AFL-CIO, is not, and has not been, entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require Marshall Maintenance to assign the work of installing stain- less steel piping to its members rather than to the employees of Mar- shall Maintenance, who are not members of that labor organization. 2. Within 10 days from the date of this Decision and Determination of Dispute, Steamfitters shall notify the Regional Director for the Third Region, in writing, whether or not it will refrain from forcing or requiring Marshall Maintenance, by means proscribed by Section 8(b) (4) (D) of the Act, to assign the disputed work to its members rather than to the employees of Marshall Maintenance, who are not members of Steamfitters. Cupples Company Manufacturers' and Warehouse and Distribu- tors Workers Union , Local 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America , Petitioner. Case No. 14-RC-3756. June ,02, 1960 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Thomas W. Seeler, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 1 The name of the Employer appears as corrected at the hearing. 127 NLRB No. 163. 560940-61-vol. 127-93 Copy with citationCopy as parenthetical citation