United Assn. of Journeymen, Etc., Local 525

National Labor Relations Board - Board Decisions

Jan 23, 1962

135 N.L.R.B. 462 (N.L.R.B. 1962)

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
3. By discriminating against James Cowan because of his testimony given at a
Board hearing Respondent has engaged in and is engaging in an unfair labor practice
within the meaning of Section 8(a) (4) of the Act.
4. By the foregoing conduct Respondent has also interfered with , restrained, and
coerced James Cowan and its other employees in the exercise of rights guaranteed
them by Section 7 of the Act and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)( I) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
6. James Cowan voluntarily terminated his employment and therefore Respondent
did not violate Section 8 (a) (3) of the Act.
[Recommendations omitted from publication.]
and the closing of the base on or about the same date As such considerations do not
relate to the period during which the unfair labor practices herein were committed I deem
them to be irrelevant at this time . They are properly matters for the compliance stage
of the proceedings . F.G. & W . Company, Inc., 129 NLRB 1105, footnote 1.
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, Local Union No. 525, AFL-CIO and Federated Em-
ployers of Nevada , Inc. Case No. 20-CB-864. January 23,196$
DECISION AND ORDER
On October 9, 1961, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the Intermediate Report attached hereto. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
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 Intermediate Report, the exceptions,,
and the brief, and hereby adopts the findings, conclusions and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor Re-
135 NLRB No. 40.
UNITED ASSN. OF JOURNEYMEN, ETC., LOCAL 525 463,
lations Board hereby orders that the Respondent, United Association
of Journeymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, Local Union No. 525, AFL--
CIO, its officers, representatives, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) In any manner giving effect to so much of the "Letter of
Understanding," described in the Intermediate Report attached here-
to, as incorporates the provisions of articles V and IX of the contract
dated July 9, 1959, between the Union and Master Plumbers Associa-
tion of Clark County, Nevada, dealing with the composition and func-
tions of the Joint Committee, Joint Session Committee, Board of Arbi-
tration, and Joint Board of Arbitration.
(b) In any manner restraining or coercing Federated Employers
of Nevada, Inc., Reynolds Electric and Engineering Co., Lloyds
Plumbing and Heating, TAB Construction Co., Longely Construction
Co., Inc., Wells Cargo, Inc., G. W. Galloway Co., or any of them in the
selection of any representative for the purpose of collective bargain-
ing or the adjustment of grievances.
(c) Refusing to bargain collectively with the said Reynolds Elec-
tric and Engineering Co., Lloyds Plumbing and Heating, TAB Con-
struction Co., Lon-ley Construction Co., Inc., Wells Cargo, Inc., and
G. W. Galloway Co., for all the employees in the unit found appropri-
ate herein, specifically by insistence upon acceptance of the grievance
and arbitration provisions of the said 1959 Master Plumbers Associa-
tion contract, or by any other means, so long as the Respondent is the
representative of the employees in the above-described bargaining unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the said Fererated Con-
tractors, through Federated Employers of Nevada, Inc., or any other
duly authorized representative of such Federated Contractors, in the
unit found to be appropriate for bargaining purposes.
(b) As hereafter set forth, post copies of the notice attached hereto
marked "Appendix."' Copies of said notice, to be furnished by the
Regional Director for the Twentieth Region of the National Labor
Relations Board shall, after being duly signed by an official representa-
tive of the Union, be posted by the said Union at its business office and
customary membership meeting place, including all places where
notices to members are customarily posted, immediately upon receipt
thereof and be maintained by it for a period of 60 consecutive days
thereafter. Reasonable steps shall be taken by the Union to insure,
that said notices are not altered, defaced, or covered by any other
material.
1 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Furnish to the said Regional Director for the Twentieth Re-
gion, signed copies of the notice marked "Appendix," attached hereto,
for posting by each of the Federated Contractors, if they so agree, in
places where notices to their employees are customarily posted.
(d) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
APPENDIX
To ALL OUR MEMBERS AND TO ALL EMPLOYEES OF EMPLOYERS WHO
ARE REPRESENTED BY FEDERATED EMPLOYERS OF NEVADA, INC., IN
COLLECTIVE BARGAINING WITH US
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL bargain collectively, upon request, with Reynolds
Electric and Engineering Co., Lloyds Plumbing and Heating,
TAB Construction Co., Longley Construction Co., Inc., Wells
Cargo, Inc., and G. W. Galloway Co., through Federated Em-
ployers of Nevada, Inc., or any other duly authorized representa-
tive of such firms. The bargaining unit is:
All plumbers, pipefitters, and apprentices employed by
Reynolds Electric and Engineering Co., Lloyds Plumbing
and Heating, TAB Construction Co., Longley Construction
Co., Inc., G. W. Galloway Co., and Wells Cargo, Inc., in the
southern part of Nye County, Clark County, and Lincoln
County, Nevada, in that portion of Arizona known as King-
man Territory, and in that portion of California known as
the Death Valley Territory, excluding all other employees
and supervisors as defined in the National Labor Relations
Act, as amended. .
WE WILL NOT give effect in any manner to so much of the
"Letter of Understanding," dated July 18, 1961, between us and
the Employers mentioned in the bargaining unit above, as incor-
porates the provisions of the contract dated July 9, 1959, between
us and Master Plumbers Association of Clark County, Nevada,
dealing with the composition and functions of the Joint Com-
mittee, Joint Session Committee, Board of Arbitration, and Joint
Board of Arbitration.
WE WILL NOT in any manner restrain or coerce Federated
Employers of Nevada, Inc., or any of its members named in the
bargaining unit described above, in the selection of any repre-
UNITED ASSN . OF JOURNEYMEN, ETC., LOCAL 525 465
sentative for the purposes of collective bargaining or the
adjustment of grievances.
UNITED AssoCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE-
FITTING INDUSTRY OF THE UNITED STATES
AND CANADA , LOCAL UNION No. 525,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional
Office (703 Market Building , 830 Market Street, San Francisco, Cali-
fornia; telephone number Yukon 6-3500, ext. 391) if they have any
question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in this proceeding, issued by the General Counsel of the National
Labor Relations Board (also called the Board herein), alleges that a labor organiza-
tion, United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, Local Union No. 525, AFL-CIO
(herein also called the Union or Respondent), has restrained and coerced an em-
ployer, Federated Employers of Nevada, Inc. (also referred to herein as Federated),
and other employers in the selection of representatives for collective bargaining or
the adjustment of grievances, thus violating Section 8(b)(1)(B) of the National
Labor Relations Act, as amended (29 U.S.C. 151, et seq .; also called the Act herein),
and has refused to bargain with Federated and other employers in violation of
Section 8(b)(3) of the said Act.' The Respondent has filed an answer which, in
material substance, denies the commission of the unfair labor practices imputed to
it in the complaint.
Pursuant to notice duly served by the General Counsel upon each of the other
parties, a hearing upon the issues raised by the complaint and answer was held before
Herman Marx, the duly designated Trial Examiner, on September 6, 1961, at Las
Vegas, Nevada. Each of the parties appeared at the hearing through counsel, par-
ticipated therein, and was afforded a full opportunity to be heard, examine and
cross-examine witnesses, adduce evidence, file briefs, and submit oral argument.
The General Counsel has not filed a brief, but the Respondent and Federated have
done so. I have read and considered the briefs so submitted.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. NATURE OF FEDERATED 'S BUSINESS ; ITS STATUS AS AN EMPLOYER ; JURISDICTION
OF THE BOARD
Federated is an association of employers, organized as a corporation under the laws
of Nevada, and exists for the purpose, among others, of engaging in collective-
bargaining negotiations, on behalf of its members, with labor organizations that
represent employees of such members. The membership includes Reynolds Electric
I The complaint is based upon a charge against the Union filed with the Board by
Federated on July 14, 1961, and an amendment of the charge filed on August 17, 1961
Copies of the charge, the amendment thereof, and the complaint have been duly served
upon the Union.
634449-62-vol . 135-31
466 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
and Engineering Co., G. W. Galloway Co., Lloyds Plumbing and` Heating, TAB
Construction Co., Longley Construction Co., Inc., and Wells Cargo, Inc..(referred
to herein collectively as the Federated Contractors), all of whom are engaged in the
plumbing contracting business in Nevada. As the Federated Contractors have mani-
fested a desire to be bound in their labor relations by joint, rather than individual,
action, through the instrumentality of Federated, and have, as will appear in great
detail later, bargained with the Union through Federated, they, together with Feder-
ated, constitute, and have constituted at all' material times, at least for the purposes
of application of the Board's jurisdiction, 'a single employer within the purview of
Section 2(2) of the Act. It is thus appropriate to base the assertion of jurisdiction
over the subject matter of this proceeding on the aggregate interstate commerce
operations fo the Federated Contractors.2
In the course and conduct of their respective business enterprises , the Federated
Contractors annually purchase goods and materials valued, -in- the. aggregate, -in
excess of $50,000, which are shipped into Nevada from points outside that State.
During the year preceding the issuance of the complaint, the Federated Contractors,
in, the conduct of their business operations, sold and distributed goods, and per-
formed services, valued, in the aggregate, in excess of $500,000,-which have had,,
as the complaint alleges "and the answer admits, • "a substantial impact on the
(n)ational (d)efense." -By 'reason of the interstate shipments, and the sales and
services related to the national defense, as described above, Federated and the Fed-,
crated Contractors are, and have been at all times material to the issues herein,
engaged in interstate commerce, and in operations affecting such, commerce, within
the purview of the Act. Accordingly, the Board has jurisdiction over the subject
matter of this proceeding.
II. THE LABOR .ORGANIZATION INVOLVED
The Union is, and has been,at all material times, a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
s A. Prefatory - statement'
On July 9, 1959, the Union and • an organization of plumbing contractors known
as Master Plumbers Association of Clark County, Nevada (also designated herein
as•the Plumbers Association), entered into a written collective-bargaining agreement
(described herein as the 1959 contract) prescribing terms and conditions of employ-
ment of individuals employed by members of the Plumbers Association, or by "non-
member signatories" of the contract. As prescribed by article III of the instrument
(entitled "Territorial Jurisdiction"), the contract applied to "all- work performed
in the Plumbing, Piping, Heating and Refrigeration Industries in Clark County and
Lincoln County, and in the southern portion of Nye County, Nevada, in that portion
of Arizona known as Kingman Territory, ( and) in that portion of California known
as the Death Valley Territory." By its terms, the agreement was to expire on June
30, 1961, unless continued thereafter as provided in the contract; and was subject to
modification following a prescribed notice.
The issues in this proceeding hinge in major degree on provisions of the'contract
relating to the processing and resolution of grievances. The relevant language is
contained in articles V and IX which provide, in part, as follows:
V. JOINT COMMITTEE
(a) During the term of this Agreement, there shall be a permanent Joint
Committee consisting of two (2) representatives from the (Plumbers) Asso-
ciation and two (2) representatives from the Union . . . . Provided,-however,
That in any case in which any dispute affecting a non-member signatory is
considered by the Joint Committee, the non-member signatory affected thereby
shall have the right to designate a representative who shall participate in the
hearing of such dispute, . . . in which event the Union shall have the right to
designate a third Union member of the Joint Committee. . .
(c) . . . All decisions of the said Committee shall be decided by majority
vote.
2Northern California Chapter, The Associated General Contractors of America, Inc,
at at, 119 NLRB 1026, 1049; Insulation Contractors of Southern California, Inc, et al.,
110 NLRB 638, 639.
UNITED ASSN. OF JOURNEYMEN, ETC., LOCAL 525 467
(d) The Joint Committee is hereby vested with power to adjust all' labor dis-
putes and grievances which may arise between the (Plumbers) Association
and/or any of its constituent employers and/or any non-member signatory on
the one hand, and the Union, or any of its members, on the other hand, and is
also hereby vested with power to interpret this Agreement and to make such
rulings and regulations as may be necessary, proper or convenient to give force
and effect to this Agreement, and to carry out the purpose, spirit and intent of
this Agreement.
(f) Any labor dispute or grievance under this Agreement, at any question
involving interpretation of this Agreement, shall first be discussed between the
shop steward and the employer involved, or his representative. If such labor
dispute or grievance cannot be settled by-such discussion, the business agent of
the Union and the Employer, or his authorized representative, shall attempt to
settle the same by direct negotiation, or with the mediation of the Adminis-
trator of'the Joint Committee; if such labor dispute or grievance cannot be
settled by such direct negotiation, or mediation of the Administrator, it may be
referred by either party to the Joint Committee, which shall act promptly thereon
through investigation, and, if the Committee, deems the same proper, through
formal hearing. The decision of the Joint Committee shall be final and binding
upon the parties hereto. . - • '
(g) The Joint Committee is empowered to employ'either a full-time or part=
time paid Administrator to administer this Agreement .. He shall serve as
mediator' in any labor disputes and grievances arising under this Agreement,
and ds to any questions involving the interpretation' of this Agreement, when-
ever requested by either of the parties. .
(i) Whenever any labor dispute or grievance arises within the territorial and
functional jurisdiction covered, by. this Agreement, either under this Agreement
and/or under any_ other agreement within the territorial and functional juris-
diction of the 'Union between the Union and any employer, employers, or their
bargaining representative,, and; such labor dispute or grievance affects the Asso-
ciation, or any of its congtituent,employers, or any non-member signatory here-
under, oil the request of any, of the parties to this Agreement or on the request
of any other parties to such other agreement, the Joint Committee shall meet
with, and sit in joint session, with any Joint Committee created under such
other agreement, and shall in such joint session attempt to settle and adjust
such labor dispute or grievance . . The decision rendered by such Joint Ses-
sion Committee shall be final and binding upon the parties hereto, and upon
the parties to such other agreement. -
IX. BOARD OF ARBITRATION
(a) Any labor dispute, grievance or question of interpretation arising here-
under, which cannot be resolved by 'direct negotiation or mediation, or upon
which the Joint Committee` shall fail to agree, shall be 'submitted for decision
to the Board of Arbitration. - ' I I ,
(b) The Board of Arbitration shall consist of two' inembers designated in
writing by the (Plumbers) Association and two members designated in writing
by the Union. . . (A) decision by a majority of the members of the Board
of Arbitration shall be the decision of the Board and shall be binding upon the
parties.
(e) In all cases in which the Joint Session Committee is unable to agree
upon a decision by majority vote, the matter shall be referred for arbitration by
the Joint Board of Arbitration, which shall consist of one member designated
by the (Plumbers) Association, one member designated by the Union, and one
member designated by the Employer representative, and one member designated
by the Union under any other agreement between the Union and an Employer,
Employers, or their representative within the territorial and functional jurisdic-
tion of the Union . . . 3
Some of the grievance and arbitration provisions that may be relevant or of interest
have been omitted because those set forth are sufficient (perhaps much more than enough)
for a determination of the issues.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Each of the Federated Contractors became a party to the 1959 contract, although
not represented by the Plumbers Association , executing the agreement as a "non-
member signatory." Federated represented some of the Federated Contractors, as
well as an unspecified number of others, in the negotiations or other arrangements
with the Union that led to the execution of the 1959 contract by the signatories so
represented.
In March 1961, anticipating the "reopening" of the 1959 contract and negotiations
-relating thereto, the Union requested Federated to supply a list of the employers
it "would be representing in the forthcoming negotiations." Federated furnished
the requested list on March 24, 1961, upon receipt of a "reopening notice" from
the Union. Throughout the negotiations that followed, described below, Federated
was the authorized collective-bargaining representative of all six Federated Con-
tractors, and it is now their bargaining representative.
Negotiations for a new agreement between the Federated Contractors , repre-
sented by Federated, and the Union began on June 12, 1961, and continued there-
after on June 20 and 28 and July 11 and 12. The employers were represented by
-a committee that included Federated's managing director, William N. Campbell;
and the Union by a group that included the labor organization's president, Barney
'Cannon, and its business agent, E. L. McGinty. It may be noted that no em-
ployers other than the Federated Contractors (apart from Federated, their agent)
participated in the negotiations . The Plumbers Association , on behalf of its members,
negotiated separately with the Union following "reopening" of the 1959 contract.
The only features of the negotiations material to the issues here are those relat-
ing to grievance and arbitration procedures. At the meeting of June 20, the Fed-
erated Contractors registered objection, in substance, to the provisions of the 1959
contract under which the Plumbers Association had the power to appoint a ma-
jority of the employer designees on the Joint Committee and to designate members
of the Board of Arbitration in cases involving Federated Contractors; and made pro-
posals for a contract between them and the Union that would have the effect of
excluding the Federated Contractors from the grievance and arbitration provisions
of the 1959 contract, and the establishment of "a separate and distinct grievance
procedure" for the Federated Contractors, and of an arbitration procedure in which
only the Union, the Federated Contractors, "and an impartial arbitrator may par-
ticipate." In reply, Cannon took the position that the Federated Contractors "had
no valid complaint" against the grievance procedures of the 1959 contract, but that
the Union would consider the proposals.
At the next meeting, held on June 28, the Union submitted grievance and arbitra-
tion proposals to the Federated Contractors which were the same as the terms con-
tained in articles V (except for a minor change not material here ) and IX of the
1959 contract. The Union's representatives said that they would submit the Fed-
erated proposals to the Union's membership, but that they would be rejected.
The 1959 contract expired on June 30, 1961, and no new agreements having been
concluded, a strike by members of the Union began on the following day against
the employers represented by the Plumbers Association, and against the Federated
Contractors. The parties stipulated at the hearing that the strike "involved" the
Union and its members, but that, it seems to me, is something of an understatement
of the Union's role, for a full view of the evidence (particularly the Union's part in
settlement of the strike ) leaves me in no doubt , and, I find, that the organization
sponsored the work stoppage.
The Plumbers Association and the Union reached a new collective-bargaining
agreement, and with that, a settlement of the strike against the Association's mem-
bers on July 11, 1961. At the meeting held on that date between the Union and
the Federated Contractors, the latter stated that they would agree to the same con-
tract terms as the Plumbers Association, except for the grievance procedures (and an
alleged so-called hot cargo provision not relevant here). Cannon expressed him-
self to the effect that it was the Federated Contractors' "insistance" on their posi-
tion regarding the grievance and "hot cargo" issues that "had continued the strike."
The Union's representatives agreed, however, to submit the Federated "offer" to
the Union's membership at a meeting to be held later that day.
That evening McGinty telephoned Campbell, informed the latter that the Union's
membership was then in process of balloting on the Federated offer but that from
the tenor of the meeting he anticipated its rejection, and asked if the Federated
Contractors would "go along in all respects with the (Plumbers Association's) settle-
ment." Campbell replied in the negative.
At the meeting held on July 12, Federated in effect adhered to this position; and
Cannon reiterated his view that the Federated Contractors' "insistence" on their
grievance and "hot cargo" positions "had continued the strike."
UNITED ASSN. OF JOURNEYMEN, ETC., LOCAL 525 469
The strike continued against the Federated Contractors until July 18 when it
was terminated upon execution by the Union and the Federated Contractors of an
instrument, dated July 18, '1961, and bearing the caption "Letter of Understanding."
The document is, in substance, an agreement between the parties thereto "pending
the printing and signing of a new labor agreement"; incorporates by reference all
of the provisions of the 1959 contract, with exceptions not material here, and pro-
vides that the agreement reached is to remain in effect until June 30, 1962 (sub-
ject to provisions for modification and continuance as in the 1959 contract). The
important feature of the "Letter of Understanding" to note is that articles V and IX
of the 1959 contract, containing the grievance and arbitration provisions of that
agreement, are among the incorporated provisions.4
B. Discussion of the issues; concluding findings
The record presents two basic issues, and these are (1) whether a multiemployer
bargaining unit confined to the Federated Contractors, as alleged in the complaint,
is appropriate; and (2) whether the Union restrained and coerced Federated Con-
tractors in the selection of bargaining and grievance representatives, and unlawfully
refused to bargain, by insisting on the inclusion, in a new agreement, of the griev-
ance and arbitration procedures set forth in the- 1959 contract.
As regards the first issue, the complaint alleges that "(a)ll plumbers, pipefitters,
apprentices employed by the (Federated Contractors) in the southern part of Nye
County, Clark County and Lincoln County, Nevada and that portion of Arizona
known as Kingman Territory and that portion of California known as the Death
Valley Territory excluding all other employees and supervisors as defined in the
Act constitute a unit 'appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act." It may be noted that the occupational
and territorial scope of the unit is not significantly different from the coverage of
article III of the 1959 contract, except that the unit sought is confined to employees
of the six Federated Contractors, instead of comprising employees of the many em-
ployers who were parties to the 1959 contract, some by force of membership in the
Plumbers Association, and other as individual "non-member" signatories such as
each of the Federated Contractors.5
The Union, as it concedes by its answer , represents all the employees in the unit
proposed by the General Counsel, but challenges its propriety as a bargaining
vehicle.
The logic of this position is not apparent . ' So far as the record shows, the Union
appears to have had' no qualms in adding the Federated Contractors to the 1959
contract as "non-member signatories," arranging the transaction with respect to
some with Federated as the agent of the employers concerned . Against that back-
ground, it does not appear why the Union should not be able to negotiate and
contract with the six employers as a 'group . But more to the point, it has done so,
taking the initial step in that direction , in fact , when it asked Federated in March
1961, prior to the negotiations ,, to submit a list of the employers it would represent
in the "forthcoming negotiations." By the very fact of the bargaining negotiations
with the Federated Contractors, not to speak of the "Letter of Understanding," the
Union has, for all practical purposes , agreed with the Federated Contractors that
a unit consisting of employees of the group is appropriate for bargaining purposes.
That being the case, the Union's claim that the unit alleged in the complaint is
inappropriate appears to me to lack merit , and I hold that that unit is appropriate for
collective-bargaining purposes within the meaning of Section 9(b) of the Act.6
With respect to the second issue , even a cursory reading of article V of the 1959
contract, now substantially incorporated by reference in the "Letter of Under-
standing," has the effect of requiring the Federated Contractors to accept repre-
4 As Incorporated in the "Letter of Understanding," the provisions of article V relating
to officers of the Joint Committee have been slightly revised. The revision is of no con-
sequence here.
In addition to the geographical areas spelled out in article III of the 1959 contract
as the territories in which the agreement was to apply, the article provided that the
contract was to be applicable to all work in the specified "Industries" in such other
States or areas as the "United Association" (the International labor organization with
which the Union is affiliated), may award to the Union. There is no evidence that such
an award has ever been made, and the provisions relating thereto may, in my judgment,
be disregarded in making findings here with respect to the appropriate bargaining unit.
G Local Union 49, Sheet Metal Workers International Association, AFL-CIO, and its
agent, E. O. Brooks (Driver-Miller Plumbing and Heating Corp.), 122 NLRB 1192, 1194.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives on the Joint Committee and Joint Session Committee for the adjustment
of grievances and labor disputes who are not selected by them but by the Plumbers
Association, which does not represent them. To assert, as does the Union in its
brief, in effect, that such a choice of representatives is not coerced is to ignore the
evidence, for it is clear, and I find, that an object of prolongation of the strike
beyond July 11, if not, indeed, of the work stoppage from its beginning, was to
,compel Federated and the Federated Contractors to accept the Union's proposals
for grievance and arbitration procedures. The question of the legality of such a
,coercive aim, by the way, is in no way affected by the fact, as McGinty testified in
substance, that members of the Plumbers Association employ the majority of the
Union membership, and that the Union prefers "uniform" contracts because its
members do not work steadily for "any one contractor," and contractual uniformity
would avoid an "extra work load" for the Union's officers.
One matter remains for discussion and that is whether the Union's effort to
compel acceptance of the arbitration provisions is within the reach of Section
8(b)(1)(B) of the Act, forbidding labor organizations "to restrain or coerce . . .
an employer in the selection of his representatives for the purposes of collective
bargaining or the adjustment of grievances." The General Counsel has not filed a
brief, and his position with respect to the problem is far from clear, although the
question raised appears to be of first impression .7 Be that as it may, I decide the
question, because a failure to do so may leave unresolved a source of contention
between the Union and the Federated Contractors and thus, perhaps, hamper their
collective-bargaining relations.
In my view, coercion to compel acceptance of management appointees to the
arbitration panels described in article IX is not materially different from com-
pulsion in the selection of representatives for the settlement of grievances by the
Joint Committee and Joint Session Committee. The Committees, it may be noted,
are repeatedly mentioned in the arbitration provisions and, as is evident, the use of
the grievance machinery is a required antecedent of the use of the arbitration
procedures. In other words, the provisions for arbitration are inextricably interlocked
with the provisions for the establishment and functions of the Joint Committee and
Joint Session Committee, and appear to me to be integral parts of a comprehensive
contractual design for grievance adjustment.
That conclusion cannot be escaped, in my judgment, by seeking to analogize the
functions of the arbitral panels visualized by article IX to adjudication. The re-
semblance between a determination of a grievance by the Board of Arbitration and
adjudication by a governmental body, whether a court or an administrative agency,
is remote, if it exists at all. The arbitral panels in question are private vehicles for
the disposition of grievances or other labor disputes, and are garbed with the
appearance of instruments of collective bargaining. Significantly, in that con-
nection , the panels contemplated by article IX consist of individuals appointed in
equal number by management and labor, except in cases of decisional deadlock by
such appointees , in which event an "umpire" is selected . It would seem that in
terms of the realities of industrial relations, the designees of labor and management
are chosen to reflect the viewpoints of those who appoint them, or, in other words,
have the status of representative spokesmen in a procedure designed to give finality
to the process of grievance adjustment.
Taking that view of the matter , as I do , the labor and management designees on
the Board of Arbitration and Joint Board of Arbitration, as provided by article IX
are, in my judgment, "representatives for the purposes of . . . adjustment of griev-
ances," within the meaning of Section 8(b)(1)(B). Thus, coercion by the Union
71 intend no intimation that the attorney who appeared for the General Counsel was
In any way remiss in his omission to file a brief. No rule requires him to do so, and it may
be that he was burdened with other duties However , as an aside, I note that the Re-
spondent's attorney declined to explicate his unit claim by oral argument, although in-
vited to state his view, and this, together with the General Counsel's omission to file a
brief, points up the need for a Board regulation vesting Trial Examiners with effective
authority to require oral argument, or statements of position at least, at the hearing,
and to compel the filing of briefs. Such a regulation would, I believe, serve the interests
of decisional clarity and expedition I note, in that connection, that a committee of the
Board once proposed the adoption of a regulation vesting authority in Trial Examiners
to require the filing of briefs. See section 2 80 of proposed Rules of Practice, as reported
in Special Supplement, News and Background Information, Part I, Labor Relations
Reporter for July 18, 1960.
UNITED ASSN. OF JOURNEYMEN, ETC., LOCAL 525 471
to compel the Federated Contractors to accept contractual provisions for the selec-
tion of management designees not of their choice is within the reach of Section
8(b)(1)(B)8
The sum of the matter is that by means of the strike to compel the Federated
Contractors to accept the provisions relating to the choice and powers of management
representatives on, or management appointees to, the Joint Committee, the Joint
Session Committee, Board of Arbitration, and Joint Board of Arbitration, the Union
restrained and coerced Federated and the Federated Contractors in the selection of
representatives for the purposes of collective bargaining and the adjustment of
grievances, thereby violating Section 8(b)(1)(B) of the Act;9 and that by insisting
on the acceptance of such provisions as a condition of agreement, as I find the Union
did, it refused to bargain collectively with Federated and the Federated Contractors
in violation of Section 8(b) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union, set forth in section III, above, occurring in connection
with the operations of Federated and the Federated Contractors, described in sec-
tion I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Union has violated Section 8 (b)(1)(B) and ( 3) of the
Act, I shall recommend that it cease and desist'therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and of the entire record in this
proceeding , I make the following:
CONCLUSIONS OF LAW
1. The Union is, and has been at all times material to the issues in this proceeding,
a labor organization within the meaning of Section 2(5) of the Act.
2. Federated and the Federated Contractors constitute, and have constituted at
all times material to the issues in this proceeding, a single employer within the
meaning of Section 2(2) of the Act, and each of them is, and has been at all such
material times, an employer within the meaning of the said section.
3. All plumbers; pipefitters, and apprentices, employed by the Federated Con-
tractors in the southern part of Nye County, Clark County, and Lincoln County,
Nevada, in that portion of Arizona known as Kingman Territory, and in that
portion of California known as the Death Valley Territory, excluding all other
employees and supervisors as defined in the Act, constitute, and have constituted at
all times material to the issues, a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. The Union is, and has been at all times material to this proceeding, the
exclusive representative of all the employees in the aforesaid appropriate unit for
the purposes of collective bargaining, within the meaning of Section 9(a) of the Act.
5. By restraining and coercing employers in the selection of representatives for
the purpose of adjustment of grievances, as found above, the Union has engaged in
unfair labor practices within the meaning of Section 8(b) (1) (B) of the Act.
6. By refusing to bargain collectively, as found above, the Union has engaged in
unfair labor practices within the meaning of Section 8(b)(3) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
8 The interpretation of Section 8(b) (1) (B) set out above Is not intended to imply that
coercion to compel an employer to select or agree to an "umpire" such as the one visualized
by article IX is within the reach of Section 8(b) (1) (B) I do not pass on such a situa-
tion, confining my holding to a case where, as here, a labor organization seeks to compel
an employer to accept management designees, who are not of the employer's choosing, as
instruments for the resolution of grievances.
9 Paddock Pools of California, Inc, at al, 120 NLRB 249, 250-251 ; Local Union 49,
Sheet Ifetal Workers International Association, supra, at 1209