Untied Association, Plumbers Local 449

National Labor Relations Board - Board Decisions

Nov 17, 1964

149 N.L.R.B. 759 (N.L.R.B. 1964)

UNITED ASSOCIATION, PLUMBERS LOCAL 449 759
pretation of the statute ." McComb v. Utica Knitting Co., 164 F . 2d 670 , 673 (C.A. 2),
and cases cited in footnote 5. The Board has said that the presence of a stenographer
at bargaining negotiations is not conducive to the successive termination thereof and
is a practice condemned by experienced persons. In the light of this language, I
cannot find that Respondent violated its bargaining obligation by refusing to nego-
tiate under such a self-defeating and condemned practice.3
In view of the Board's language in Reed & Prince, I feel compelled to dismiss the
complaint. It may be, of course, that "the matter [will] not appear to [the Board]
now as it appears to have appeared to [the Board] then " Andrews v . Styrap, 26
L.T.R. (N .S.) 704 , 706, as quoted by Justice Jackson concurring in McGrath v.
Kristensen , 340 U .S. 162, 178. It may also be that other courts will join the First
Circuit in rejecting the Board 's view in Reed & Prince Such a rejection would not
conclusively settle the issue here , for a holding that it is permissible to insist on a
stenographic transcription does not require a holding that it is impermissible to insist
that none be made. As to that I can only say that if free of the Reed & Prince rule,
I should find the violation here, for if an employer ( or a union ) insists on making a
verbatim record of the negotiations , it would seem to me that this should be within
its prerogative and a contrary insistence should not be permitted to prevent the bar-
gaining from going forward . But these are matters which must await higher authority,
as "uniform and orderly administration" (Iowa Beef, supra) requires me to follow
the Board in Reed & Prince.
CONCLUSION OF LAW
Respondent 's refusal to participate in bargaining negotiations which were to be
stenographically transcribed was not an unfair labor practice.
RECOMMENDED ORDER
The complaint herein should be, and hereby is, dismissed.
'The court's decision in N.L R B. v. Corsicana Cotton 7fil18 , 178 F. 2d 344 , 347 (C.A. 5),
Is distinguishable In that the court , In directing that a transcript of bargaining negotia-
tions be kept , was merely directing the negotiators to continue a practice they had thereto-
fore observed.
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States
and Canada , Local 449, AFL-CIO [Joseph B . Fay Company]
and Constructors' Association of Western Pennsylvania and
International Hod Carriers ', Building and Common Laborers'
Union of America, Local 1058 , AFL-CIO. Case No. 6-CD-160.
November 17, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed by Constructors' Association of Western Pennsylvania,
herein called the Association, alleging that United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, Local 449, AFL-CIO, herein called
the Steamfitters, had violated Section 8(b) (4) (D), by threatening,
coercing, or restraining Joseph B. Fay Company, herein called the
Employer, for the purpose of compelling it to assign certain work to
employees represented by the Steamfitters, rather than to employees
represented by International Hod Carriers', Building and Common
149 NLRB No. 47.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers' Union of America, Local 1058, AFL-CIO, herein called the
Laborers. Pursuant to notice, a hearing was held before Hearing
Officer Edward A. Grupp on August 3, 1964, at which all parties ap-
peared and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bearing upon the
issues. The rulings made by the Hearing Officer at the hearing were
free from prejudicial error and are hereby affirmed. A brief was filed
only by the Laborers. Upon the entire record in this proceeding, the
Board 1 makes the following findings:
1. The business of the Employer
The Employer is a Pennsylvania corporation engaged as a general
contractor in the building and construction industry, and has been a
member of the Association, an employer association, since 1955. Dur-
ing the past 12 months the Employer performed services valued in
excess of $250,000 outside the Commonwealth of Pennsylvania. We
find that the Employer is engaged in commerce within the meaning of
the Act, and that it will effectuate the policies of the Act to assert juris-
diction herein.
2. The labor organizations involved
The parties stipulated, and we find, that the Steamfitters and the
Laborers are labor organizations within the meaning of the Act.
3. The dispute
A. The facts
Allegheny Center, an area on the north side of Pittsburgh, Pennsyl-
vania, consists of several acres of property undergoing redevelop-
ment. All of the structures on this site were torn down, and an urban
renewal project of commercial and apartment buildings is underway.
No new buildings are under construction as yet, but the area is being
prepared for such construction. As part of this preparation, the Em-
ployer has a contract to install about a mile of 30-inch steel pipe, which
is placed in a 12-foot trench below the surface of what will become a
roadway. These pipes ultimately will be connected with a central air-
conditioning plant, where water will be chilled and then pumped
through the pipes to apparatus which will air-condition the various
buildings to be constructed.
The Employer prepares the trench, unloads the pipe from flatbed
trucks, places the pipe in the trench, welds together the 20-foot sections
of pipe, and then backfills the trench. Employees of the Employer who
IPursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [IChairman McCulloch and
Members Fanning and Jenkins].
UNITED ASSOCIATION, PLUMBERS LOCAL 449 761
are members of the Laborers prepare the trench. In the unloading of
the pipe, the Laborers place straps around the sections of pipe, then
attach them to a crane operated by employees who are members of the
Operating Engineers Union, and then the craneman, with the aid of
signals from the Laborers, lifts the pipe from the truck and sets it on
the ground. In the same manner, with the use of straps attached by
the Laborers, a crane, with Laborers signaling and Operating En-
gineers handling the crane, places the pipe in the trench. Laborers
weld the sections of pipe together, and the backfilling is done by the
Operating Engineers.
The Steamfitters seeks the work presently performed by the Labor-
ers in connection with the unloading of the pipe, its placement in the
trench, and the welding of the sections of pipe? It was stipulated that
the Steamfitters picketed the jobsite in May 1964 to induce the Em-
ployer to assign this work to its members rather than to the Laborers .3
The Association has had successive contracts with the Laborers since
1937, and the Employer became a member of the Association in 1955
with the Association acting as its collective-bargaining representative
since that date. The current contract between the Association and the
Laborers, effective from February 4, 1963, to January 1, 1966, covers
"heavy construction" work with specific reference to "water mains"
and "pipe lines," and provides specific wage rates for welders, pipe-
layers, and laborers engaged in sewer pipe and waterline work. Also,
there was undisputed testimony that the Employer and other members
of the Association operating within Allegheny County, Pennsylvania,
which includes the city of Pittsburgh, regularly install pipes used to
carry water, sewage, and gas, and that these installations, including the
unloading, placement, and welding of pipe, are done by employees who
are members of the Laborers.
The Steamfitters offered no testimony in support of its claim for the
work involved, and introduced in evidence only a decision by the Na-
tional Joint Board for Settlement of Jurisdiction Disputes, Building
And Construction Industry, awarding the work in question to the
Steamfitters. However, there is undisputed testimony that the Em-
ployer is not bound to participate in the procedure of the National
Joint Board; and there is no evidence that either the Employer or the
Laborers participated in the decision relied on by the Steamfitters.
B. Applicability of the statute
Before the Board proceeds with a determination of dispute pursuant
to Section 10 (k) of the Act, it must be satisfied that there is reasonable
2 The Steamfitters does not seek the work of the Laborers in preparing the trench, or the
work of the Operating Engineers in backfilling the trench.
3 The Employer employs members of the Laborers, the Operating Engineers , and the
Carpenters Union, but no members of the Steamfitters.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause to believe that Section 8(b) (4) (D) has been violated. In view
of the stipulation of the parties that the Steamfitters picketed the job-
site in May 1964 to induce the Employer to assign the work in question
to its members rather than to the Laborers, and upon the entire record,
we find that such reasonable cause exists, and that the dispute is prop-
erly before the Board for determination under Section 10(k) of the
Act.
C. Contentions of the parties
The Steamfitters relies solely on the decision of the National Joint
Board in support of its claim to the disputed work, based on the belief
that the Employer was bound by that decision.
The Laborers contend for the disputed work on the basis'of the
following : (1) The assignment of the disputed work by the Employer
to the Laborers, and the apparent ability of the Laborers to perform
the work ; (2) the area practice in the industry of assigning this work
to the Laborers, which assignment also demonstrates the apparent
ability of the Laborers to perform the work ; (3) the current collective-
bargaining agreement between the Association and the Laborers cover-
ing this work and providing for specific job classifications and wage
rates therefor; (4) the long continuing similar collective-bargaining
relationship between the Association and the Laborers; (5) the absence
of any employment of Steamfitters by the Employer; (6) the failure
of the Steamfitters to introduce any evidence in support of its claim
to the work other than the nonbinding Joint Board award.
D. Merits of the dispute
All of the evidence in the record supports the Laborers" claim to the
disputed work. The proceeding of the National Joint Board, the sole
factor relied on by the Steamfitters, was not participated in by the
Employer or Laborers, the Employer had not agreed to be bound
thereby, no fully elaborated basis for the Joint Board's action was
introduced in this record, and therefore that decision cannot be given
any significant Weight .4 In view thereof, and upon the entire record,
we shall award the disputed work to the Laborers.
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 pursuant
to Section 10(k) of the Act:
1. Employees of the Joseph B. Fay Company, represented by Inter-
national Hod Carriers', Building and Common Laborers' Union of
4 See International Longshoremen's and Warehousemen's Union, Local 10 ( Matson Navl-
gatton Company; Matson Terminals, Inc.), 140 NLRB 449; United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, Local 1622 ( 0. R. Karst), 139 NLRB 591.
LOCAL 408, SHEET METAL WORKERS' INT'L ASSN. 763
America, Local 1058, AFL-CIO, are entitled to the work at Allegheny
Center, Pittsburgh, Pennsylvania, of unloading pipe, placing the pipe
in trenches, and welding the sections of pipe together, to the extent,
and in the manner, that they presently perform such work as herein
described.
2. United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
Local 449, AFL-CIO, is not and has not been lawfully entitled to force
or require Joseph B. Fay Company to assign the disputed work to
steamfitters.
3. Within 10 days from the date of this Decision and Determination
of Dispute, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada,
Local 449, AFL-CIO, shall notify the Regional Director for Region 6,
in writing, whether or not it will refrain from forcing or requiring
Joseph B. Fay Company, by means proscribed by Section 8 (b) (4) (D),
to assign the work in dispute to steamfitters who are its members rather
than to laborers who are represented by International Hod Carriers',
Building and Common Laborers' Union of America, Local 1058, AFL-
CIO.
Local 408, Sheet Metal Workers ' International Association, AFL-
CIO and Metalab Equipment Company. Case No. 7-CD-104.
November 17, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, following charges filed May 22, 1964, by Metalab
Equipment Company, herein called Metalab or the Employer, alleging
that Local 408, Sheet Metal Workers' International Association, AFL-
CIO, herein called Sheet Metal Workers, had violated Section 8(b)
(4) (D) of the Act by engaging in conduct to force or require the
Employer to assign certain disputed work to employees represented by
Sheet Metal Workers rather than to employees represented by Local
1654, United Brotherhood of Carpenters & Joiners of America, AFL-
CIO, herein called Carpenters. A duly scheduled hearing was held
before Hearing Officer Donald F. Sugerman on June 30, 1964. All
parties appeared at the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to adduce evi-
dence bearing on the issues. The rulings of the Hearing Officer made
at the hearing are free from prejudicial error and are hereby affirmed.
The Employer filed a brief with the Board which has been duly
considered.
149 NLRB No. 76.