Utah Plumbing and Heating Contractors Association

National Labor Relations Board - Board Decisions

Mar 7, 1960

126 N.L.R.B. 973 (N.L.R.B. 1960)

UTAH PLUMBING & HEATING CONTRACTORS ASSN. , ETC. 973
meaning of Section 8 ( a) (1), (2), and ( 3) of the Act, and the Re-
spondent Unions have not engaged in and are not engaging in unfair
labor practices within the meaning of Section 8(b) (1) (A) and (2)
of the Act . Accordingly , we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
Utah Plumbing and Heating Contractors Association and its
Members and Local Unions 19 , 57, 348 and 466 of the United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
AFL-CIO. Case No. 20-CA-1670. March 7, 1960
DECISION AND ORDER
On October 6, 1959, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in certain unfair labor practices, and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
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 [Chairman Leedom and Members
Bean and Jenkins].
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 and the excep-
tions thereto, 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
Relations Board hereby orders that the Respondent, Utah Plumbing
and Heating Contractors Association and its Members, their officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local Unions, 19, 58, 348 and 466
of the United Association of Journeymen and Apprentices of the
126 NLRB No. 124.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbing and Pipe Fitting Industry of the United States and Can-
ada, AFL-CIO, or in any other labor organization of their employees
by discriminatorily locking out, laying off, or reducing the workweek
of their employees, or by discriminating in any other manner in
regard to their hire and tenure of employment or any term or condi-
tion of employment, except to the extent permitted in Section 8 (a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
(b) Threatening their employees with a shutdown, lockout, or lay-
off in order to force them and their bargaining representative to give
up their bargaining demands and accept the Respondent's contract
proposals without further bargaining.
(c) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action for the purpose of effect-
uating the policies of the Act :
(a) Make whole all employees discriminated against in the lockout,
shutdown, or curtailment of operations which occurred beginning on
April 1, 1959, for any loss of pay they may have suffered by reason
of the discrimination against them, in the manner set forth in "The
Remedy" section of the Intermediate Report attached hereto.
(b) Preserve and, upon request, make available to the Board or its
agents for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze and compute the amounts of
backpay due under the terms of this Order.
(c) Post at the Association's office in Salt Lake City, Utah, and at
the plants of each of its Members at such places as notices to employees
are customarily posted, copies of the notice attached hereto marked
"Appendix." 1 Copies of said notice, to be furnished by the Regional
Director for the Twentieth Region, shall, after being duly signed by
the Association's representative and by representatives of its Members
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 "
UTAH PLUMBING & HEATING CONTRACTORS ASSN., ETC. 975
at their respective plants where the notices are posted, be posted im-
mediately upon receipt thereof, and maintained for 60 consecutive
days thereafter in conspicuous places. Reasonable steps shall be
taken by the Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps they have taken to comply
herewith.
APPENDIX
NO17CE TO ALL EMPLOYEES
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 notify our employees that:
WE WILL NOT discourage membership in Local Unions
19, 57, 348 and 466 of The United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO, or any other labor
organization of our employees, by discriminatorily locking out,
laying off, or reducing the workweek of our employees, or by
discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of employment.
WE WILL NOT threaten our employees with a plant shutdown,
lockout, or layoff in order to force them and their bargaining
representative named above to give up their bargaining demands
and accept our contract proposals without further bargaining.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist
the above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to engage
in other mutual aid or protection, or to refrain from any or all
of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized by Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL make whole all employees discriminated against as
a result of lockout, layoff, or curtailment of operations, for any
loss of pay suffered as a result of our discrimination against them.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of the above-named labor organiza-
tions or any other labor organization, except to the extent that such
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right may be affected by an agreement authorized by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
UTAH PLUMBING AND HEATING
CONTRACTORS ASSOCIATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
UTAH PLUMBING AND HEATING
CONTRACTORS ASSOCIATION,
Employer.
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding as heard before the duly designated Trial Examiner in Salt Lake
City, Utah, August 11, 1959, on the complaint of the General Counsel of the
National Labor Relations Board, herein called the Board, and answer of Utah
Plumbing and Heating Contractors Association and its Members, herein called the
Employer or the Respondents. The issues litigated were whether the Respondents
violated Section 8(a) (1) and (3) of the National Labor Relations Act, 61 Stat. 136,
herein the Act, by a threat of lockout and a lockout of employees. Oral state-
ments were made at the close of the evidence; no briefs were filed.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Utah Plumbing and Heating Contractors Association, with its principal office
located in Salt Lake City, Utah, is an employer association comprised of various
members engaged in the plumbing and pipe fitting industry in the environs of Salt
Lake City, Utah. It represents its members in collective bargaining and negotiates,
and has negotiated, contracts on their behalf with the labor organization described
below. Its members in the course and conduct of their businesses annually purchase
goods and materials valued in excess of $50,000 of an out-of-State origin. It is
admitted and found that it is an employer within the meaning of Section 2(1) and (2)
of the Act. It was my further understanding at the hearing that the Respondents
conceded the applicability of the Board's formula for asserting jurisdiction and the
matter was not litigated.
II. THE LABOR ORGANIZATIONS INVOLVED
Local Unions 19, 57 , 348, and 466 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada, affiliated with the AFL-CIO , are each labor organizations within the
meaning of the Act, and function as a single bargaining principal in the negotiation
of contracts with the Employer described above. They are referred to herein
generally as the Union.
HI. THE UNFAIR LABOR PRACTICES
A. The material facts
The facts which I regard as dispositive of the issues in this case are virtually
undisputed.
UTAH PLUMBING & HEATING CONTRACTORS ASSN., ETC. 977
By letter dated January 22 , 1959 , the Union notified the Employer of its intention
to open up its 2-year contract with the Employer expiring March 31 , and pursuant
to this notice there were several meetings of representatives of the parties during
which proposals and counterproposals for the terms of a new contract were made.
The Union 's negotiating team was composed of the business representatives , respec-
tively , of the four locals comprising the bargaining unit, and the Employer 's team was
composed of officers and representatives of the multiemployer unit chosen for this
purpose. The matter of a wage increase appears to have been the principal if not
sole issue in these negotiations . The Employer rejected the Union 's initial pro-
posal on wages, and made a counterproposal . This counterproposal the Union
submitted to the membership of the four locals it represented on or about March
22, and the membership voted to reject it. By this vote the Union was authorized,
upon appropriate notice to the membership , to call a strike provided it did not
receive a better offer from the Employer . This was customary procedure , following
the pattern of negotiations in 1957 between the same bargaining principals. In
1957 the Union 's membership rejected the Employer's first proposal on wages,
thereby authorizing a strike. The submission of a new proposal in lieu of that
rejected by the Union's membership , automatically nullified the strike authoriza-
tion previously given.
On March 30 , 1959, a meeting was called of members of the multiemployer unit
and other "interested" employers who apparently followed the pattern set by the
Respondents in their contractual relationships with the Union . At this meeting, the
Employer 's negotiators were authorized to make a final wage offer not to exceed a
stipulated amount, and to institute a lockout of employees if this final wage offer
was rejected by the Union . On the following day, March 31, the date of the expira-
tion of the 1957 contract , the Employer made its new wage proposal to the Union
and insisted that the Union 's negotiators give some assurance of its acceptance or at
least assure the Employer that they would try to "sell it to their people." Harold
Christiansen , a member of the Employer 's negotiating committee , testified: "I
informed them that unless they could assure the committee they would try to sell
it to their people that we would have to cease work the next morning." In issuing
this ultimatum there can be no doubt that Christiansen spoke, and was reasonably
understood by the Union to speak, for the Employer. Other testimony has Employer
representatives saying, "no contract , no work" and "we have as much right to lock
you out as you have to strike." Suffice it to say, it is firmly established and, in fact,
admitted , that gat this meeting the Employer threatened a lockout unless the Union's
negotiators would give assurance that they would urge the membership of their
respective locals to accept the Employer's wage proposal.
I am convinced that no such assurance was given, although the Union 's negotia-
tors agreed to submit the proposal to the membership of their respective locals, as
was customary in their bargaining with the Employer . William J. Grow, one of the
Union's negotiators , testified in effect that it was the Union 's position at this meeting
that no assurance of acceptance of the Employer 's proposal could be given until
the four locals comprising the Union had voted on it. There was testimony that
Jack H . Pyper, one of the Union's negotiators , said in effect that .the wage proposal
was ridiculous and he would not recommend its acceptance to members of the local
he represented . This was denied by Pyper but I am convinced that he voiced his
personal opposition to the wage proposal at this meeting , and the Employer would
reasonably infer that he would recommend that the membership of his local reject
it. However, Pyper was but one of the four union negotiators and represented but
one of the locals comprising the Union, and an adverse vote on the Employer's wage
proposal by his local would not prevail over acceptance of the proposal by the
other three locals. While it appears that the other three negotiators did not give
their verbal assurances that they would try to "sell" the proposal to their respective
memberships , there is nothing in this record indicating that the Employer would have
reasonable grounds for inferring that they would recommend against acceptance
of the proposal. To the contrary, at least two of them, Grow and Osburn S Carter,
indicated that they personally favored its acceptance. There is further testimony
which I accept, that the Union proposed to continue working under the old contract
until the wage proposal could be submitted to a vote of the locals, and that the
Employer was informed that such a vote could and would be taken after the mem-
bership had been served with appropriate notices, a matter of a few days
Having failed to obtain the assurances it demanded, following the meeting of
March 31 the Employer called on its members and other interested employers to
lock out their employees and, effective the following day. April 1. many though not
all complied. Despite the lockout, the Union submitted the Employer's proposal
554461-60-vol. 126-63
978 - 1 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to its membership and the membership voted to accept it. Only one of the locals,
the one represented by Pyper, voted against the proposal , and the vote of the
majority was binding on all . On April 4 the bargaining principals executed a new
contract and the lockout was terminated.
B. Concluding findings
The Employer 's position , as I understand it, is that it issued its lockout threat
and subsequently locked out its employees because of the existence of a strike
threat which could be effectuated suddenly, without notice to the Employer, and
because it risked irreparable damage if it waited until a strike actually occurred.
On the evidence I am convinced that the Employer was faced with neither strike
nor threat of strike at the time it broke off negotiations with the Union and
instituted its lockout. I credit its witnesses that as of the meeting of March 30, the
Employer knew that the membership of the locals in rejecting its last wage proposal
had authorized the Union to strike. In view of its experience in the 1957 negotia-
tions with the Union, 1 think it is incredible that it did not also know that such
strike authorization was automatically canceled on the submission of a new contract
proposal by the Employer, and that a new strike authorization could arise only
after the membership had been afforded an opportunity to vote, and had voted, on
the Employer's latest proposal.
At the same meeting that the Employer's membership authorized a lockout, it
authorized a new wage proposal substantially better than the one preceding it which
the Union had rejected. This new wage proposal was actually made on the following
day, accompanied by a threat of lockout if the Union's negotiators would not give
verbal assurance that they would try to "sell" the proposal to th.-rr respective mem-
berships. While no such verbal assurance was given, neither was there any
threat of strike nor talk of strike at this meeting, and the Employer understood that
its new wage proposal would be submitted to the Union's membership for a vote,
and that this would be done in a matter of days.
It may be argued that the Employer would infer an adverse vote on its wage
proposal, amounting to a strike authorization, by the refusal of the Union's nego-
tiators to give the required assurances, but I can find no support for such an infer-
ence except in the opposition of one of the four union negotiators and this, in my
opinion, was more than neutralized by the favorable, or at least neutral reception
given the proposal by the other three negotiators. Again, because of its prior
experience in negotiations with the Union I think the Employer knew that a vote
of a majority of the four locals would be binding on all, and no serious contention
is made that it did not possess this knowledge. Withal, I think we would have to
have something much more tangible and positive than a mere refusal by the union
negotiators to give verbal assurances that they would attempt to "sell" the Em-
ployer's proposal, to justify a conclusion that at the time the Employer threatened to
institute, and instituted its lockout, it was faced with the threat of a strike which
might be called at any time at the discretion of the Union.
It is equally clear, I think and find, that no stalemate or impasse in negotiations
was reached on March 31, but on the contrary, the Employer's new wage proposal
was a forward step in negotiations and all four of the Union's negotiators agreed to
submit the new proposal to their respective memberships. This was a traditional
and accepted part of the bargaining process and until the membership of the locals
had been afforded an opportunity to vote on this new proposal, and had voted to
reject it, there was no occasion for the Employer to conclude that bargaining had
reached a dead end. Its institution of a lockout on April 1 was the antithesis of
good-faith bargaining.
Upon the entire evidence it is clear and found, that the threat of a lockout and
the lockout itself, were resorted to primarily not as an economic weapon necessi-
tated by a strike hazard, but for the purpose of forcing a quick acceptance of the
Employer's contract proposals. The very fact that the Employer couched its wage
proposal in terms of an ultimatum reveals its underlying purpose That ultimatum
was- Give us your assurance here and now that you will try to sell our proposal to
your respective memberships or we will lock you out tomorrow
It is equally clear that there was no "unusual" operational problem or hazard of
economic loss here that would be forestalled by a lockout of employees. The ad-
verse effects of a strike alluded to in testimony elicited by the Respondent would be
equally true of a lockout inasmuch as either would cause at least a temporary
cessation of the Employer 's normal operations . In this respect also the Respondent
has failed to sustain "the burden of going forward with evidence to justify the
lockout." Quaker State Oil Refining Corporation, 121 NLRB 334, enfd. 270 F. 2d
40 (C.A. 3).
UTAH PLUMBING & HEATING CONTRACTORS ASSN., ETC. 979
In the Quaker State case, which has marked similarities with the situation here,
the Board, with court approval, stated that "absent special circumstances, an em-
ployer may not during bargaining negotiations either threaten to lockout or lockout
his employees in aid of his bargaining position. Such conduct the Board has held
presumptively infringes upon the collective-bargaining rights of employees in viola-
tion of Section 8(a)(1) and the lockout, with its consequent layoff, amounts to
discrimination within the meaning of Section 8(a)(3). In addition, the Board has
held that such conduct subjects the Union and the employees they represent to unwar-
ranted and illegal pressure and creates an atmosphere in which the free opportunity
for negotiation contemplated by Section 8(a)(5) does not exist."
In my opinion the present case is controlled by the Quaker State decision and,
accordingly, I find that by its threat of lockout and lockout of employees, the
Respondents, in violation of Section 8(a)(1) of the Act have interfered with,
restrained, and coerced their employees in the exercise of rights guaranteed in
Section 7 of the Act; and by their lockout of employees, the Respondents have
discriminated against their employees within the meaning of, and in violation of
Section 8(a)(3) of the Act. A refusal to bargain in violation of Section 8(a)(5)
of the Act is not alleged, presumably because of the execution of a bargaining
agreement terminating the lockout, and for that reason no legal conclusion is di awn
on the issue of an 8(a) (5) violation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Respondents described in section 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
It having been found that the Respondents threatened to lock out and locked out
their employees in violation of Section 8 (a)( I) and (3) of the Act, it will be recom-
mended that they cease and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
It having been found that the Respondents' lockout constituted discrimination
within the meaning of Section 8(a)(3) of the Act, it will be recommended that the
Respondents make whole employees laid off or locked out as a result of the action
taken by the Respondent Association and its Members, for any loss of pay they may
have suffered by reason of the discrimination against them, by payment to each of a
sum of money equal to that which he normally would have earned during the
period of the lockout, less his net earnings during said period, such sums to be
computed in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289. It is also recommended that the Respondents, upon request, make
available to the Board or its agents for examination and copying, all payroll and
other records necessary to enable the Board to analyze and compute the amounts
of backpay due.'
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Utah Plumbing And Heating Contractors Association is an Employer within
the meaning of Section 2(1) and (2) of the Act.
2. The Union and its constituent locals are each labor organizations within the
meaning of Section 2(5) of the Act.
'Not all the employer members of the Respondent Association honored the Associa-
tion's lockout notice but the identity of all those who engaged in the lockout and those
who did not cannot be ascertained with certainty from this record. All members of the
Association , however, had authorized the Association to represent them in collective bar-
gaining with the Union, and the threat of lockout and the lockout are inextricably en-
meshed in the bargaining process All members of the Association therefore are bound by
the action of the Respondent Association both with respect to the threat of lockout and
the lockout itself, inasmuch as it was the duly designated bargaining agent of all. In
phrasing a remedy and a recommended order no effort has been made to distinguish be-
tween those members who did and did not actually lock out their employees. Whatever
issue is involved here is a matter of compliance.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By their lockout of employees, the Respondents have discriminated in regard
to the hire and tenure of employment of their employees , thereby discouraging
membership in the Union , and thereby have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a)(3) of the Act.
4. By the aforesaid conduct and by the threat of a lockout , the Respondents have
interfered with, restrained , and coerced their employees in the exercise of rights
guaranteed in Section 7 of the Act, and have thereby engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (a)(1) of the Act.
5. 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.]
Capitol Fish Company and Bennie Hill, Jr., and Porter Baldwin,
Jr. Cases Nos. 10-CA-3959 and 10-CA-3992. March 7, 1960
DECISION AND ORDER
On November 3, 1959, Trial Examiner James F. Foley issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, but that the Respondent had not en-
gaged in certain other unfair labor practices, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case in a three-member
panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following exceptions' and
modifications.
1. We find, like the Trial Examiner, that the Respondent violated
Section 8 (a) (1) of the Act by interrogation of employees concerning
their union activities, by creating an impression of surveillance of such
activities 12 and by threats of reprisal and promises of benefit, calcu-
lated to discourage such activities. We also agree with the Trial
R We make the following corrections in the Intermediate Report : The Trial Examiner
erroneously refers to the dates of the election as September 26 and 29, and October 3,
1959, instead of 1958; to the elimination of the night shift as about April 13, 1958,
instead of 1959; and to the date of the hiring of Rosezell Johnson as 'October 11, 1959,
instead of 1958.
2 Although such surveillance was not alleged in the complaint, we find that the issues
relating thereto were adequately litigated.
126 NLRB No. 123.