United Association of Journeymen, Etc.

National Labor Relations Board - Board Decisions

Mar 15, 1955

111 N.L.R.B. 940 (N.L.R.B. 1955)

940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMB-
ING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA,
AFL, LOCAL UNION No. 177 AND E. T . WINBURN, ITS AGENT and
CARRIER CORPORATION . Case No. 10-CD-13. March 15, 1955
Decision and Determination of Dispute
This proceeding arises under Section 10 (k) of the Act, which pro-
vides : "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 deter-
mine the dispute out of which such unfair labor practice shall have
arisen...."
On August 11, 1954, Carrier Corporation, herein called Carrier, filed
with the Regional Director for the Tenth Region a charge alleging
that United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL, Local Union No. 177, herein called Pipefitters, and E. T. Win-
burn, its agent, had engaged in certain activities proscribed by Section
8 (b) (4) (D) of the Act. It was charged in substance that the Pipe-
fitters had induced or encouraged employees of Carrier to engage in
a strike or a concerted refusal to work in the course of their employ-
ment with an object of forcing or requiring Carrier and/or Turner
Transfer, Inc., to assign particular work at a job site near Brunswick,
Georgia, to employees in a particular labor organization rather than to
other employees.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the Regional
Director investigated the charge and provided for a hearing upon due
notice to all parties. The hearing was held before Frank E. Hamilton,
Jr., hearing officer, on November 9 and 10, 1954. All parties appeared
at the hearing and were afforded full opportunity to be heard, to ex-
amine 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. Both the Pipe-
fitters and Carrier filed briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. Carrier Corporation is a Delaware corporation engaged in the
manufacture and installation of air-conditioning equipment. Its home
office and principal manufacturing plant are in Syracuse, New York.
It ships in excess of $100,000,000 worth of goods outside the State
of New York annually. Turner Transfer, Inc., herein called Turner,
111 NLRB No. 155.
UNITED ASSOCIATION OF JOURNEYMEN, ETC. 941
is a corporation engaged in hauling heavy industrial machinery by
truck in 31 States and Canada. Its annual revenue from this opera-
tion is in excess of $1,000,000. We find that Carrier and Turner are
each engaged in commerce within the meaning of the Act.
2. United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL, Local Union No. 177, and International Association of Bridge,
Structural and Ornamental Iron Workers, AFL, herein called Iron
Workers, are labor organizations within the meaning of the Act.
3. The dispute :
A. The facts
Carrier had a subcontract with a mechanical contractor, Erickson,
to supply and install large refrigeration machines for air-conditioning
a radar school being constructed at the Naval Air Station near Bruns-
wick, Georgia. Carrier, in turn, contracted with Turner Transfer,
Inc., to haul the equipment from Carrier's Syracuse plant to the job
site and to rig the equipment. Carrier had an agreement covering
installation work with the Pipefitters. Turner had an agreement cov-
ering rigging work with the Iron Workers.
On July 6, 1954, Turner's trucks arrived at the job site and Turner's
employees prepared to unload the equipment. At about 10 a. m. after
one truck was backed into position, Hammock, a Pipefitters' job stew-
ard at the construction site, approached Phillips, who was a foreman
for Carrier and a member of the Pipefitters, and claimed jurisdiction
over the unloading work for the Pipefitters. Hammock also spoke to
Parham, a foreman for Turner, and told him that he could not unload
the equipment because the work belonged to the Pipefitters. Turner's
employees did no more work that day. Around noon, Winburn, the
Pipefitters' business agent, arrived at the job site and spoke to Phil-
lips, again claiming jurisdiction over the unloading work for the Pipe-
fitters. That afternoon, Phillips hired a member of the Pipefitters for
Carrier, and the two of them started to prepare the base plates on
which the equipment was to be set.
On the following morning Phillips hired an additional member of
the Pipefitters. Turner's employees did nothing until shortly after
the noon hour. At that time Cain, the Iron Workers' local business
agent, instructed Parham to proceed with the work. Parham then
hired two members of the Iron Workers for Turner and started to un-
load. Whereupon, Hammock told Phillips that the Pipefitters were
leaving the job. As a consequence, Phillips and his two employees and
Hammock, together with some pipefitters and plumbers employed by
Erickson, left the job site. Turner's employees continued to unload
their trucks.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Phillips came to the job site the next day, he stayed a short
time merely to see what was going on. Meanwhile Turner 's men un-
loaded the remaining equipment from their trucks on to the ground.
As Phillips was not there to instruct them on how to place the equip-
ment, they had to leave without completing the job. Turner 's work-
men did not appear again until July 19. In the interim on July 9,
Erickson's pipefitters and plumbers returned to work. On July 12,
Phillips returned to work. However, thereafter, on those occasions
when Turner's employees returned to the job site, Phillips stayed away.
On July 19, Turner's foreman, Campbell, arrived at the job site and
hired four members of the Iron Workers to proceed with the job.
Sometime around noon, a picket line was placed at the gate of the air
station by the Pipefitters. At first, the pickets carried signs stating,
"Carrier Corporation Activities Unfair to Local 177." Later the
words, "On C. I. C. School," were added at the top of the sign. Work
was interrupted because employees of other contractors on the con-
struction job as well as those of Turner refused to cross the picket
line. Two days later, however, on July 21, Turner's employees, on
instruction from Cain, crossed the picket line and resumed work.
That afternoon the Naval officer in charge of the construction in-
formed Campbell that his men could not work unless a Carrier repre-
sentative was present. Turner's employees thereupon left without
completing their work.
The following day, the pickets were apparently removed and all
work, with the exception of the work to be performed by Turner, was
resumed. On August 5, Campbell returned to the job site where he
met Juneau, a nonunion foreman sent to the job by Carrier as its rep-
resentative in order that Turner might complete its work. Campbell
hired four members of the Iron Workers and commenced work.
Shortly thereafter a number of pipefitters employed elsewhere on the
construction project gathered in the room where Turner's men were
working and sat around on boxes. Turner 's employees continued to
work until lunchtime without interference. However, after lunch
the pipefitters moved outside and sat down on equipment which still
remained to be set by Turner. Turner's employees worked a short
while longer until only the equipment occupied by the pipefitters re-
mained to be placed.
Meanwhile, Winburn approached Juneau and again challenged in
the jurisdiction of the Iron Workers over the work. Winburn told
Juneau that the Pipefitters would not work on the Carrier equipment
if the Iron Workers continued to set it. Shortly after lunch, upon
Campbell's agreement with Juneau's suggestion, Juneau signed the
job tickets "completed," although about 12 man-hours of Turner's
work remained, and Campbell and his men left the job. The follow-
UNITED ASSOCIATION OF JOURNEYMEN , ETC. 943
ing morning Phillips returned to the job and finished the disputed
-work with members of the Pipefitters.
Carrier completed all its work at the naval air station by the end
of October 1954 except for putting the equipment in operation. No
work similar to that performed by Turner remains and Carrier has
no other contracts in the Brunswick area.
B. Contentions of the parties
Carrier contends that the Pipefitters violated Section 8 (b) (4) (D)
of the Act by the above-described conduct, and that the Board should
find that there is a long-standing dispute between the Pipefitters and
the Iron Workers over similar work and therefore should make a
broad determination covering the entire Atlanta district of the charg-
ing party.
The Pipefitters contends that the record does not reveal any con-
duct violating Section 8 (b) (4) (D), that there was no jurisdictional
dispute in existence when Carrier filed its charge on August 9, and
that the disputed work belongs to the Pipefitters.'
C. Applicability of the statute
The charge, which was duly investigated by the Regional Director,
alleges a violation of Section 8 (b) (4) (D) of the Act,' and the Re-
gional Director was satisfied on the basis of his investigation that a
violation of the Act had been committed.
In a proceeding under Section 10 (k) of the Act, the Board is re-
quired to find only that there is reasonable cause to believe that Sec-
tion 8 (b) (4) (D) has been violated before proceeding with a deter-
mination of the dispute out of which the unfair labor practice has
arisen.3
Pipefitters contends that the object of its conduct was not to force
Turner's empoyees off the job, but to induce Carrier to desist from
breaching its agreement with Pipefitters which it contends required
1 For the reasons stated in the text below , the Pipefitters ' motion to dismiss based upon
its first two contentions is denied.
9 The relevant portions of Section 8 (b) (4) (D) are :
8 (b) It shall be an unfair labor practice for a labor organization or its agents-
(4) to engage in, or to induce or encourage the employees of any employer to engage
in, a strike or a concerted refusal in the course of employment to use, manufacture,
process , transport , or otherwise handle or work on any goods, articles , materials, or
commodities or to perform any services where an object thereof is . . .
(D) forcing or requiring any employer to assign particular work to employees in
a particular labor organization or in a particular trade, craft , or class rather than to
employees in another labor organization , or in another trade, craft , or class , unless
such employer is failing to conform to an order or certification of the Board deter-
mining the bargaining representative tor employees performing such work. . . .
i See, e . g, Local 26, International Fur & Leather Workers ( Winslow Bros . & Smith Co.),
90 NLRB 1379 ; Truck Drivers and Chauffeurs Union, Local 705 ( Direct Transit Lines),
92 NLRB 1715.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carrier to retain control over the assignment of the disputed work.
However, it is apparent that the only way the alleged breach of con-
tract could have been remedied to Pipefitters' satisfaction was by as-
signing the disputed work to members of the Pipefitters rather than to
other employees.' In fact, it is clear that the Pipefitters regarded the
situation as remedied when this very thing was done.
Accordingly from the above-described facts and the entire record,
we find that there is reasonable cause to believe that on the three sep-
arate occasions when Turner's employees came to the job site to per-
form its contract, the Pipefitters and its agents induced or encouraged
employees working on the construction job to engage in work stop-
pages,' and that the purpose of this conduct was to force or require
Carrier either directly or indirectly to assign the disputed rigging
work to members of the Pipefitters rather than to other employees.
Furthermore, it appears at least on the occasion of the first work stop-
page, when Hammock approached both Parham and Phillips, that
pressure to make such an assignment was directed at Turner as well as
at Carrier. Such conduct clearly falls within the proscription of
Section 8 (b) (4) (D).1
Pipefitters also contends, however, that no violation of Section 8 (b)
(4) (D) should be found because even if there was a jurisdictional
dispute, it ended prior to the filing of the charge. This is tantamount
to a contention that the issues raised in this proceeding are moot.
However, while the evidence shows that the disputed work was com-
pleted at the time the charge was filed, there is no evidence that the
underlying dispute has been resolved. The work was completed only
after Carrier yielded to the Pipefitters' pressure and paid off Turner
before its work was complete. Moreover, Pipefitters concedes in its
brief that there seems to be a dispute between the Pipefitters and the
Iron Workers at the national level over which union should do work
similar to that disputed herein? Under these circumstances we believe
4 When asked at the hearing what he wanted Carrier to do in order to remedy the alleged
breach of contract , Winburn could only answer , "Well, I . . . that beats me," and gave
no further explanation of what action Pipefitters wanted Carrier to take
6 While Winburn denied at the hearing that he ever specifically instructed employees to
leave their jobs, this testimony is not inconsistent with a finding that the Pipefitters and
Winburn induced or encouraged employees to engage in work stoppages . Moreover, any
possible conflict between Winburn 's testimony in this and other respects and the testimony
of other witnesses need not be definitely resolved as we are satisfied that there is reason-
able cause to believe that the violations alleged in the charge did occur.
e Section 8 (b) (4) (D ) proscribes attempts to force indirect assignment of work as
well as direct assignment . Local 526, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry , etc. (Northwest Heating Company), 107
NLRB 542 , footnote 11 and cases cited therein.
7 Other local disputes stemming from this dispute have been before the Board recently
in United Association of Journeymen & Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, Local 4 28, AFL (Philadelphia Association),
108 NLRB 186, hereinafter referred to as The Philadelphia Association case; United Asso-
ciation of Journeymen and Apprentices, etc., 109 NLRB 854.
UNITED ASSOCIATION OF JOURNEYMEN, ETC. 945
that the issues herein are not moot.' Accordingly, we turn to the
merits of the dispute.'
D. Merits of the dispute
At the time the Pipefitters sought the assignment of the disputed
work for its members, Carrier had assigned the work to Turner, who
employed members of the Iron Workers. Pipefitters apparently did
not object to subcontracting, per se, but it did object to the fact that
members of the Iron Workers rather than members of the Pipefitters
were doing particular work. The dispute in essence was therefore
over Carrier's assignment of work to members of one labor organiza-
tion rather than to members of another labor organization.
It is well established that an employer is free to make such assign-
ments free of strike pressure by a labor organization, unless the em-
ployer is failing to conform to an order or certification of the Board
determining the bargaining representative for employees performing
the disputed work.10 It does not appear that either Carrier or Turner
was failing to conform to any such order or certification of the Board.
Pipefitters contends, however, that its contract with Carrier covers
the disputed work and warrants a determination in its favor. With-
out passing on whether the contract would otherwise be determinative
of the merits of this dispute, we note that it contains union-security
provisions that are patently unlawful. Article I (B) of the contract
provides : "Party of First Part [Carrier] hereby agrees to employ
Journeyman Members and Apprentice Members of Party of the
Second Part [Pipefitters] on all work coming under the jurisdiction
of the Party of the Second Part, under wages and working conditions
as hereinafter outlined." Article V provides : "It is understood that
the Party of the First Part will use Members of the Party of the
Second Part on all work coming under the jurisdiction of the United
Association of Journeymen Plumbers and Steamfitters of United
8 United Association of Journeymen and Apprentices of the Plumbing and Pope Fitting
Industryf, etc. (Cli ff Schoel Plumbing and Heating Co.), 109 NLRB 783; The Philadelphia
Association case, supra.
9 After the close of the hearing Carrier moved to correct the record by adding a state-
ment to the effect that Carrier is a member of the National Association of Heating, Piping
and Air Conditioning Contractors , which is, in turn, a participating member of National
Joint Board for Settlement of Jurisdictional Disputes, contrary to testimony received at
the hearing. None of the parties objected to this correction, but Pipefitters requested the
Board to take into consideration the fact that it did not have this information at the
time its brief was filed. Accordingly, we will accept this correction as part of the record
and will treat the Pipefitters' request as a contention that the parties had agreed upon
methods for voluntary adjustment of the dispute within the meaning of Section 10 (k)
of the Act. However, apart from other considerations, as Turner Transfer , Inc., is not
a party to any agreement to be bound by the National Joint Board' s determinations, we
find that the additional evidence does not affect our finding herein and that the dispute is
properly before us. The Philadelphia Association case, supra.
10 See e. g., Local 562, United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry, etc. (Northwest Heating Company ), supra. International
Longshoremen's and Warehousemen's Union, Vocal No. 16 (Juneau Spruce Corp.), 82
NLRB 650.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States and Canada, subject to the following regulations." It is clear
from these two articles that this agreement conditions employment of
persons doing work within the Pipefitters' jurisdiction upon member-
ship in the Pipefitters. However, the Act provides that union mem-
bership may be a condition of employment only "on or after the
thirtieth day following the beginning of . . . employment or the
effective date of [the] agreement, whichever is later." 11 No such
30-day grace period is provided in this agreement. Therefore the
union-security provisions of the contract are patently unlawful.l2
The Board will not, as a matter of policy, permit such a contract to
determine the instant dispute.13
Furthermore, as we find that the Pipefitters have no contractual
claim to the disputed work, evidence relating to custom and practice
in the area is immaterial and was properly excluded by the hearing
officer."
We find, accordingly, that the Pipefitters and E. T. Winburn, its
agent, were not lawfully entitled to require Carrier or Turner to
assign the disputed work of placing and setting equipment to members
of the Pipefitters rather than to employees assigned by them to per-
form such work. However, we are not, by this action, to be regarded
as "assigning" the work in question to the Iron Workers.
There remains to be considered Carrier's contention that our deter-
mination in this case should cover the entire Atlanta district of Car-
rier. As precedent for such action Carrier cites the Philadelphia
Association case 15 in which the Board issued a determination appli-
cable to all employers in the Philadelphia area. Carrier contends
that such a determination is warranted by the fact that the instant
dispute is but another instance of the basic jurisdictional conflict be-
tween the Pipefitters and the Iron Workers.
In the Philadelphia Association case, a number of disputes in the
Philadelphia area were embraced by the charges before the Board and
were given a complete hearing. On the basis of that record alone we
were able to determine that two local unions in the Philadelphia area
were engaging in proscribed conduct on a widespread basis, and that
only a broad determination would have the desirable deterrent effect
on the current action of those locals.
In the instant case, only a single dispute involving Local 177 is
properly before us.ls The area which Carrier would have us embrace
11 Section 8 (a) (3) of the Act.
12 The Philadelphia Association case, supra.
13Ibid Accordingly , we find it unnecessary to decide whether the contract covers the
.disputed work.
11 The Philadelphia Association case, supra.
Is Supra.
1e Offers of proof made by Carrier at the hearing to the effect that similar disputes have
.occurred between other Pipefitters locals and the Iron Workers in several Southeastern
,States were therefore properly excluded by the hearing officer.
ECONOMIC MACHINERY COMPANY 947
by our determination covers all of North and South Carolina, Georgia,
Florida, Alabama, and part of Tennessee. Yet Local 177 of the Pipe-
fitters has jurisdiction over and operates in only a small portion of
Georgia. We do not believe that under these circumstances we would
be warranted in making such a broad determination.
Moreover, as there is no evidence that Local 177 is presently en-
gaging in other similar disputes, we will make the usual determina-
tion applying only to the parties immediately involved.17
Determination of Dispute
Upon the basis of the foregoing findings, and the entire record in
this case, the Board makes the following determination of dispute pur-
suant to Section 10 (k) of the Act :
1. United Association of Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry of the United States and Canada, AFL,
Local Union No. 177, and E. T. Winburn, its agent, are not and have
not been lawfully entitled to force or require Carrier Corporation or
Turner Transfer, Inc., to assign the rigging work on any equipment
in connection with construction work at the naval air station near
Brunswick, Georgia. to members of Local 177 rather than to members
of International Association of Bridge, Structural and Ornamental
Iron Workers, AFL.
2. Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, the Respondent Local 177 and E. T. Winburn,
its agent, shall notify the Regional Director for the Tenth Region, in
writing, as to what steps they have taken to comply with the terms
of this Decision and Determination of Dispute.
37 See Los Angeles Building and Construction Trades Counc ,l, AFL (Westinghouse Elec-
tric Cotporation ), 83 NLRB 477, 482 at footnote S.
ECONOMIC MACHINERY COMPANY, DIVISION OF GEORGE J. MEYER MAN-
UFACTURING Co. and UNITED STEELWORKERS OF AMERICA, CIO1 PE-
TITIONER. Case No. 1-RC-3518. March 15, 1955
Supplemental Decision , Order , and Direction of Second Election
On March 19, 1954, pursuant to the Board's Decision and Direction
of Election,' an election by secret ballot was conducted under the di-
rection and supervision of the Regional Director for the First Region,
among the employees in the unit heretofore found appropriate. At
the conclusion of the election, a tally of ballots was furnished the par-
1 Eoonomtic Machinery Company, Division of George J. Meyer Manufacturing Co.,
]-RC-3518, February 24, 1954, not reported in printed volumes of Board Decisions and
Orders.
111 NLRB No. 154.
344056-55-vol. 111-61