Local 636, Plumbing and Pipe Fitting Industry

National Labor Relations Board - Board Decisions

Mar 16, 1959

123 N.L.R.B. 225 (N.L.R.B. 1959)

LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 225
not represent a majority of the employees ; by trailing , ambushing , and stoning
employees of the Company ; and by threatening employees of the Company and
other employers , thereby restraining and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Local, and Jimmy Ray Rush, Sam
Dixon , Jr., Windol Atchison , and James Mitchell , as agents of the Local, have
jointly and severally engaged in and are engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
Local No . 636 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO, and its Business
Agent Tim McCarthy and its President William B. Kelley
and United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States
and Canada , AFL-CIO and The Detroit Edison Company
and Westinghouse Electric Corporation . Case No. 7-CC-55.
March 16, 1959
DECISION AND ORDER
On October 3, 1957, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. He also found that the Re-
spondents had not engaged in and were not engaging in the other
unfair labor practices alleged in the complaint and recommended
their dismissal. Thereafter, the Respondents, the General Counsel,
and the Charging Parties filed exceptions to the Intermediate Report
and supporting briefs, and orally argued this case before the Board.
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
Intermediate Report,'- the exceptions and briefs, the oral argument,
and the entire record in this proceeding, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the following additions and modifications.
i The following inadvertency appearing in the Intermediate Report, which does not affect
the Trial Examiner 's findings and conclusions , nor our concurrence therein, is corrected
as follows : p. 250, line 10, the date of May 27, 1956, is corrected to read May 27, 1957.
123 NLRB No. 37.
508 889-60-vol. 123-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The amended complaint charged that Respondents, sometimes
referred to as the UA, violated Section 8 (b) (4) (A) by engaging in,
and inducing or encouraging employees of United Engineers and
other employers at Edison's construction projects in River Rouge,
.St. Clair, and Monroe, Michigan, to engage in, a strike or concerted
refusal in the course of their employment to handle certain materials
for objects proscribed by the Act. The forbidden objects, as alleged,
were to force United Engineers and other employers to cease doing
business with Westinghouse or any employer which fabricated pipe
in off-site plants with employees who were not UA members, and to
force United Engineers and other employers to cease doing business
with Edison. The Trial Examiner found that Respondents, through
Kelley, the president of Respondent Local 636, unlawfully induced or
encouraged Stolliker, Morgan, and other pipefitters employed by
United Engineers at River Rouge to refrain from erecting Westing-
house pipe because it was not fabricated by UA members. He also
found that Respondents induced or encouraged these pipefitters to
cease work in order to force Edison to award contracts for prefab-
ricated piping only to those suppliers who employed members of
Respondent Unions.
In their exceptions, Respondents contend that the conduct attrib-
uted to Kelly did not constitute inducement or encouragement. They
further contend that any inducement or encouragement of Stolliker
:and Morgan to cease handling Westinghouse pipe was privileged be-
-cause these individuals were not employees within the meaning of
the Act.
. United Engineers is a labor contractor which constructs power
generating plants on a cost-plus basis. Its sole product is the supply
of skilled manpower and supervision. At all times pertinent to this
proceeding, Respondents and United Engineers were parties to a
National Construction Agreement which contained certain "fabrica-
tion" clauses. These provided that all piping installed by United
Engineers had to be handled, assembled, and erected by UA mem-
bers; that all piping over 21/2 inches in diameter which was pre-
fabricated (i.e., cut, bent, and assembled) off the site had to be pre-
fabricated in shops which employed UA members; and, that the
Respondents reserved the right to refuse to handle prefabricated
piping upon which their members had not worked. The enforce-
ment of these clauses was implemented by the constitution and
bylaws of the UA which imposed upon each member the duty, on
pain of certain sanctions, "to make it generally known to the entire
membership ... that all piping . . . fabricated and processed in a
plant ... away from the job site shall be prepared by only members"
of the UA.
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 227
In 1956 Edison embarked upon an expansion program which con-
templated the erection of additional power units at River Rouge,
St. Clair, and Monroe, and awarded contracts to United Engineers to
furnish the labor for erecting the turbine generators at each location.
Edison maintains a policy of purchasing all materials directly from
the manufacturers for the construction of its plants. It lets con-
tracts to suppliers who offer the lowest price for the product without
regard to the union affiliation of the suppliers' employees. Westing-
house, whose employees belong to a union other than the UA, was
awarded a contract by Edison to supply the turbine generator for a
unit at River Rouge, where the instant dispute arose. A second con-
tract was obtained by Westinghouse to provide another generator
for the St. Clair project. Allis-Chalmers, whose employees are also
members of a. union not affiliated with the UA, has a contract to
supply a generator for Edison's Monroe project. Under the terms of
the first Westinghouse agreement, that Company was obligated to
furnish a prepackaged turbine generator containing prefabricated
piping with diameters in excess of 21/2 inches. This unit was as-
sembled by Westinghouse employees at its Philadelphia plant and
was due to arrive at River Rouge on January 21, 1957.
In the fall of 1956, UA pipefitters employed by United Engineers
were already engaged in installing pipe at River Rouge. During
that period, Repondents twice complained to United Engineers con-
cerning Edison's purchase of piping for the River Rouge and St.
Clair projects which was not prefabricated by UA members. In
each case, the Respondents refused to install piping supplied by the
Crane Company and the Clement Electric Company because their
employees did not belong to the Respondent Unions.
When the Westinghouse equipment arrived at River Rouge on
January 21, Kelley was so notified. He in turn notified his business
manager. The following day, United Engineers was informed that,
on orders from Respondent International, UA pipefitters on the proj-
ect would not handle the piping because Westinghouse did not em-
ploy UA members. On the same day, Kelley was asked by a repre-
sentative of Westinghouse why the piping had not been unloaded
and taken to the turbine room for installation. Kelley replied by
reading to him the "fabrication" clauses in the agreement between
UA and United Engineers. Kelly then stated that the members of
Respondent Local 636 had discussed the matter of prefabricated
piping at a union meeting just prior to the receipt of the Westing-
house material. On January 24, Respondent International and
United Engineers met and discussed the use of prefabricated piping
on Edison's projects. After informing United Engineers that it had
violated the National Construction Agreement by receiving Westing-
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house pipe at River Rouge, the International stated that its major
concern was the St. Clair project where Edison had invited bids
from companies which did not have a contract with the UA. The
meeting terminated when United Engineers replied that it had no
control over Edison's purchasing policies and could not require that
Edison buy prefabricated piping only from suppliers who hired
UA men.
From January 21 to 28, UA pipefitters at River Rouge were at
work installing various piping which was part of the Westinghouse
turbine. When the men ceased work on this pipe on January 28,
the Westinghouse representative asked Stolliker for the reason.
Stolliker was employed by United Engineers in the turbine room,
along with a crew of pipefitters, and bore the title of turbine room
foreman. Stolliker replied that he had received word from his
Union "not to work on any more Westinghouse equipment until this
difficulty with the piping was settled." From January 28 to March
12, United Engineers unsuccessfully attempted, at the behest of the
UA, to persuade Edison to tailor its purchasing policies to conform
to the "fabrication" clauses in the National Construction Agreement.
During the same period, United Engineers failed to persuade Re-
spondents to authorize their members at River Rouge to erect the
Westinghouse piping.
Events came to a head on March 12 when Dallam, general super-
intendent for United Engineers at River Rouge, instructed Kelley
to order his pipefitters to install Westinghouse pipe. In addition to
being president of Local 636, Kelley was also general piping foreman
for United Engineers. After conferring with Respondent Unions
and learning that no agreement had been reached concerning the
use of Westinghouse pipe or a change in Edison's purchasing policies,
Kelley told Dallam that the pipe would not be erected until such
an agreement had been worked out. Dallam then proceeded to
Kelley's office. Present were Kelley, Morgan, and Stolliker. Like
Stolliker, Morgan bore the title of foreman and worked in the
receiving yard. Dallam instructed Morgan to move the Westing-
house piping from the yard into the turbine room. Morgan replied
that he would do so only if the piping was broken down and refab-
ricated on the site and only if he was instructed by the UA. Dallam
then asked Stolliker to install the pipe. Stolliker also declined,
stating that it was Westinghouse pipe and that he would install it
if the UA so order him. Kelley, who remained silent during this
questioning, cautioned both men, after they had replied to Dallam,
not to assign any reason for refusing to work but merely to say that
they would handle the pipe in the near future. The next day, Dal-
lam visited some 80 pipefitters at the project in the company of
Kelley. When Dallam asked the men whether they would install
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 229
the pipe, each replied that they would do so only if instructed by the
UA. One mentioned that it would be contrary to the "fabrication"
clauses in the National Construction Agreement. Kelley again re-
mained silent. The pipefitters did not commence handling this
piping until May 10, 1957, when, during the course of Section 10(1)
injunction proceedings in the Federal District Court, the UA gave
the order which authorized them to do so.
The Respondents challenge the Trial Examiner's findings that
Kelley unlawfully induced or encouraged United Engineers' pipe-
fitters on March 12 and 13, 1957. They contend that Kelley' s silence
when the pipefitters were asked and refused to handle the Westing-
house pipe cannot be translated into inducement or encouragement
in the statutory sense. We do not agree. The subject of handling
prefabricated piping made by non-UA members was a topic of dis-
cussion among the members of Local 636 just prior to the receipt of
the Westinghouse pipe at River Rouge. Strict sanctions were im-
posed by the constitution and bylaws of the UA on members who
failed to make it known to the membership generally that piping
which was prefabricated off the site had to be prepared by UA mem-
bers. When the Westinghouse equipment did arrive on the project,
Respondent International issued the order to the Local's business
manager and Kelley that no work be done on it. The reason for the
order was made abundantly plain-the piping had been assembled
by Westinghouse employees and the UA did not want Edison to
purchase or United Engineers to erect any piping which did not
satisfy the terms of the "fabrication" clauses. However, these orders
did not expend their force solely on the business manager and Kelley.
Stolliker had been instructed by Respondent Unions, as early as
January 28, that he was not to work on the piping until the "diffi-
culty" over it had been "settled." On March 12, both Stolliker and
Morgan were reminded of the UA's attitude toward the Westing-
house equipment by Kelley who instructed them not to give any
reason to Dallam for refusing to handle this equipment but to indi-
cate that they would install it in the near future. Furthermore, it
is obvious that the UA pipefitters who refused to erect the piping
on March 13 were aware that it did not meet the requirements of
the "fabrication" clauses and that the UA was opposed to handling
it when they refused to work on the pipe unless the UA first gave
its approval.
In International Brotherhood of Electrical Workers, Local 501,
et al. (Samuel Langer) v. N.L.R.B.,2 the Supreme Court made it
clear that "The words ` induce or encourage ' [as used in Section
8(b) (4) (A )] are broad enough to include in them every form of
2 341 U. S. 694, 701-702.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
influence and persuasion." (Emphasis supplied.) Kelley, the presi-
dent of Local 636, was present at the time Dallam asked the pipe-
fitters to install the Westinghouse piping. When the men replied
that they would not handle it unless the "Union" ordered them to do
so, Kelley was the one person to whom they could look for an
affirmative authorization to work because, to them, Kelley was the
"Union." 3 Inasmuch as the pipefitters knew that a state of facts
existed, namely, UA's attitude of opposition to erecting Westing-
house pipe or any other pipe which did not satisfy the "fabrication"
clauses, Kelley could not stand silent without conveying to the men
that this attitude still persisted.4 In our opinion, Kelley's silence
was as effective in inducing or encouraging the pipefitters to engage
in a concerted refusal to work upon, or strike against, Westinghouse
piping as any words which he might have uttered. Under these
circumstances, we find that it was incumbent upon Kelley to indicate
to the men that the UA had no objection to the installation of the
Westinghouse piping. By his failure to do so, the Respondents
induced or encouraged United Engineers' pipefitters at River Rouge
to engage in a strike and a concerted refusal in the course of their
employment to handle that equipment for the unlawful objects
alleged in the complaint and found by the Trial Examiner.5 Fur-
thermore, we find in the context of these circumstances that the
Respondents themselves effectively engaged in a strike as expressly
proscribed in Section 8(b) (4) (A) by their decision that no work
be done on the Westinghouse equipment because it had not been
prefabricated by UA members. The Respondents' exceptions in this,
connection are therefore overruled.
The Respondents also contend that the Trial Examiner erred in
finding that Kelley unlawfully induced or encouraged Stolliker and
Morgan because there is no showing that these individuals were
employees within the purview of the Act. Stolliker worked with a
crew of 12 pipefitters in the turbine room. Morgan worked in the
receiving yard. While both bore the title of foreman, there is no
evidence in the record that they possessed any of the indicia of
supervisory authority set forth in Section 12)(1i) of the Act. The
General Counsel, having formally alleged that employees of United
Engineers were unlawfully induced or encouraged by Respondents,
and having established that Stolliker and Morgan were employed
3 On the morning of May 10 , 1957, and during the course of the Section 10 ( 1) injunction
proceeding before the district court, Kelley gave the order which caused the men to work
on the Westinghouse piping at River Rouge.
4 See Local 1016 , United Brotherhood of Carpenters d Joiners of America, AFL-CIO,
et at . ( Booher Lumber Co., Inc .), 117 NLRB 1739 , 1745-1746.
5 See International Brotherhood of Teamsters, etc., Local 554 v. N.L.R .B. (Clark Bros.
Transfer Co.), 262 P. 2d 456 (C.A ., D.C.), enfg . in part 116 NLRB 1391 ; Seafarers'
International Union of North America, et at. (Superior Derrick Corporation ), 122 NLRB
52 (Member Fanning dissenting In part).
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 231
by that company and that they were induced and encouraged by
Respondents for unlawful objects, it rested with the Respondents to
produce evidence that these individuals were supervisors and not
employees in order to remove Kelley's conduct from the proscriptive
ambit of the statute. This the Respondents failed to do. Accord-
ingly, like the Trial Examiner, we find that Stolliker and Morgan
were employees within the meaning of the Act and that they were
induced or encouraged by Kelley in violation of Section 8(b) (4) (A).6
2. When the UA pipefitters at River Rouge refused to install
Westinghouse pipe on March 13, United Engineers telephoned Local
636 and requested that 12 additional men be sent to the project to
perform that work. This action was taken pursuant to Article 5
of the National Construction Agreement which is entitled "Hiring
of Men." The article provides that "initial requests for the furnish-
ing of journeymen and apprentices shall be made to the Local Union
within whose territorial jurisdiction the work is being performed."
Local 636 has jurisdiction over the entire Detroit area in which
Edison's projects are located. The article further provides that the
"Union agrees to furnish at all times to the Employer duly qualified
journeymen and apprentices in sufficient number as may be necessary
to properly execute work contracted for by the Employer in the
manner and under the conditions specified in this Agreement," and
that "If the Local Union in the territory ... where the Employer
holds a contract fails to supply sufficient competent and capable
journeymen and apprentices, . . . the Employer may request the.
United Association to furnish such additional employees as it may
require." Only when the Respondents are unable to furnish men
may United Engineers go outside the territorial jurisdiction of Local
636 to obtain "such journeymen." However, the record establishes
that all pipefitters employed by United Engineers at River Rouge
were members of Local 636, and that all such pipefitters were re-
quested from, and referred by, that Local to United Engineers in
accordance with the terms of the Agreement.
Despite United Engineers' request for men on March 13, and a
subsequent request made on March 14, Local 636 refused to refer
them, admittedly because of the UA's opposition to handling West-
inghouse pipe and to Edison's purchasing policies. On May 20,
1957, United Engineers and Respondents executed an agreement
whereby the UA would furnish pipefitters to finish all piping work
at River Rouge, including Westinghouse piping. In return, United
Engineers agreed not to transfer men from River Rouge to St. Clair
e We adopt the Trial Examiner 's finding, to which no exceptions were taken , that the
Respondents did not engage in unfair labor practices with respect to the employees of
General Electric Corporation, Allis-Chalmers Manufacturing Company, Spitzley Plumbing
and Heating Company of Detroit, Michigan , Babcock & Wilcox, Clement Electric Com-
pany, and the Crane Company . We shall therefore dismiss this aspect of the complaint.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until United Engineers could insure that Edison would purchase
pipe which was prefabricated solely in shops employing UA mem-
bers. Thereafter, the UA instructed United Engineers not to call
the Local for any men for the St. Clair and Monroe projects. In
April and May 1957, Respondents refused to refer pipefitters to
DiDuca Brothers and Partlan Company for work at the St. Clair
project. The reason for the refusal was Edison's persistence in
adhering to its purchasing policies. So far as appears on this record,
neither DiDuca nor Partlan were under contract with respondents
requiring the latter to supply pipefitters.
In his complaint, the General Counsel alleged that the Respond-
ents' refusal to refer members to United Engineers and other em-
ployers also violated Section 8(b) (4) (A) because it constituted a
"strike" or because "employees" were thereby induced or encouraged
in the course of their employment not to perform work. The Trial
Examiner disagreed. In reliance on Joliet Contractors,' he found
no violation in this regard on the ground that no employment rela-
tionship existed at the time between the members who were not
referred and the employers in question. The General Counsel and
the Charging Parties contend that the facts in this case are not
controlled by the holding in Joliet but rather approximate those of
the Longshoremen's cases" in which the Board found that certain
longshoremen were "employees" under Section 8(b) (4) (A) even
though they were not working for a given employer when the offend-
ing union engaged in its unlawful inducement. For the reasons set
forth below, we concur in this contention.
Before considering the decisions upon which the respective parties
draw for support, we deem it appropriate to set forth the pertinent
statutory guidelines and their judicial delineations which must con-
trol our decision herein. Section 8(b) (4) (A) makes it unlawful for
a union or its agents "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 their employment . . . to perform serv-
ices . . ." for certain proscribed objects. (Emphasis supplied.)
Section 501(2) defines "strike" as encompassing "any strike or other
concerted stoppage of work by employees . . . and any concerted
slow-down or other concerted interruption of operations by em-
ployees." [Emphasis supplied.] Because section 8(b) (4) (A) refers
to a strike by "employees," and to inducement and encouragement
of "employees," it is necessary to examine the content and meaning
of the term "employee" as used in the statute.
7 Joliet Contractors Association, et at. v. N .L.R.B., 202 F. 2d 606 (C.A. 7), cert . denied
346 U.S . 824, 99 NLRB 1391.
8 United Marine Division, Local ' 333,' et at. ( New York Shipping Association), 107
NLRB 686 ; Local 1422 , International Longshoremen 's Association, Independent (Charles-
ton Stevedoring Company, et al.), 118 NLRB 920.
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 233
In Section 2(3) of the Act, Congress stated that "'employee' shall
include any employee, and shall not be limited to the employees of
a particular employer, unless the Act explicitly states other-
wise. . . ." [Emphasis supplied.] In thus describing the term,
Congress did not essay any restrictive definition but drew the term
broadly to accommodate the various and changing employment
arrangements and relationships which might arise between parties
during the course of disputes covered by the statute. As the Supreme
Court noted in the Phelps Dodge case; "The policy [Congress]
expressed in defining `employee' both affirmatively and negatively, as
it did in § 2(3), had behind it important practical and judicial
experience. . . . This was not fortuitous phrasing. . . . The broad
definition of `employee,' `unless the Act explicitly states otherwise,'
. . . expressed the conviction of Congress `that disputes may arise
regardless of whether the disputants stand in the proximate relation
of employer and employee,' . . ." (Emphasis supplied.) In that
case, the Court held that applicants who were discriminatorily
denied employment were entitled to the same statutory protections
as "employees" even though they were not under a contract of hire
when the discrimination occurred.
Whether the pipefitters whom the UA refused to refer to United
Engineers and other employers had the status of "employees" as
used in Section 8(b) (4) (A) therefore depends upon considerations
of the peculiar character of the intended relationship or arrange-
ment with these employers, and is not controlled exclusively by any
immediate or continuing employer-employee nexus. As the Court
of Appeals for the Sixth Circuit stated in American Federation of
Radio and Television Artists v. Getreu,10 "Whether such relation-
ships existed in the present case is a question to be resolved in the
first instance by the Board. Unless this court should hold that
nothing short of a continuous employment relationship can suffice,
the Board should be allowed to determine whether the present
situation is more akin to the Longshoremen's cases than to the Joliet
Contractors case.":- We therefore turn to the decisions upon which
the opposing parties rely.
In Joliet Contractors, supra, the union refused to refer union
glaziers to certain glazing contractors unless the latter agreed not
to use preglazed sash on their projects. However, it does not appear
that these contractors were parties to any agreement with the union
covering the terms and conditions of employment for union members,
a P7ielps -Dodge .Corp. v. N . L.R.B., 313 U . S. 177, 191-192.
10 258 F. 2d 698 (C.A. 6).
u In this case , the court affirmed the granting of an injunction under Section 10(1) and
ruled that the district court appropriately found that there was reasonable cause to be-
lieve that the union violated Section 8(b) (4) (A ). The union had contended that it did
not induce "employees" to cease work but rather induced members not to accept work and
that this conduct was lawful under Joliet Contractors.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor does it appear that the union was the exclusive hiring source
for glaziers in the area or was in any contractual manner obligated
to supply the men. As a result of such conduct , the union was
charged with violating Section 8(b) (4) (A) by engaging in a
"strike," and inducing "employees" to strike or concertedly refuse
to work for the contractors.
The Board held that the union's refusal to refer members was
privileged under the Act. It reasoned that the members had no
status as "employees" because they had not technically accepted
employment with the glazing contractors nor had they commenced
work. The Board further concluded that, assuming the members
were deemed to be employees, there was no showing that the union
induced their refusals to work. The Court of Appeals for the
Seventh Circuit upheld the Board's decision. However, in doing so,
it construed Section 8(b) (4) (A) as expressing a congressional pur-
pose not to proscribe "the refusal to accept employment, either indi-
vidually or in concert ," in order to avoid a serious constitutional
challenge . The court also observed that the "statute did not con-
demn the refusal by glaziers to go on a job and it did not require
them as individuals to stay on a job."
In New York Shipping Association, supra, decided after Joliet,
the union called a strike against certain tugboat operators and
picketed at piers where members of the Association did business.
Consequently, union longshoremen refused to work for the Associa-
tion even though they were neutrals in the dispute. Charged with
violating Section 8(b) (4) (A), the union defended on the ground
that the longshoremen were not "employees" under the Act because
of the peculiar employment practices at the piers. Unlike Joliet,
the parties in the Shipping Association case had a contract covering
longshoremen which required that they join the union on or after
the 30th day of employment by Association members and provided
for the payment of vacation as well as pension and welfare benefits
to all workers covered by the agreement. Under the employment
arrangement between the parties, longshoremen "shaped up" each
morning at the piers in order to obtain employment with an Associa-
tion employer . A hiring foreman , who was a member of the union,
selected a "gang" of longshoremen and assigned them to work for a
particular employer . In some cases , the assignment resulted in
regular daily employment until the assigned tasks were concluded.
In others, the longshoremen shaped up each morning and their
employment terminated at day 's end. In still other cases, the men
presented themselves for work but were not assigned to a job with
any employer. In each case, longshoremen obtained work only by
visiting the piers and being assigned to gangs by a member of their
union.
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 235
The Board concluded that the longshoremen, including those who
were not under a technical contract of hire during the union's
picketing, and who would not have been selected for work each day
that the picketing occurred, were nevertheless "employees" within
Section 8(b) (4) (A) who were induced "in the course of their em-
ployment" by the union's picketing. Because of the employment prac-
tices at the piers as well as the provisions of the contract between
the parties, the Board found that "an established arrangement and
course of employment" was intended by the parties which had suffi-
cient characteristics of "certainty and continuity" to justify the con-
clusion that all longshoremen covered by the agreement were em-
ployees in the statutory sense. A similar conclusion was reached in
Charleston Stevedoring Co., supra. There, the union refused to refer
longshoremen to secondary employers with whom it was in con-
tractual relations covering the men. Pursuant to the employment
practices in Charleston, the secondary employers obtained their long-
shoremen under an arrangement whereby they telephoned the union
hall for men and the union posted such requests on its bulletin
board. Because of a primary dispute with other employers, the
union refused to post the requests with the result that no longshore-
men were referred for work. The Board found not only that the
union unlawfully induced "employees" by its refusal to post, but
that it had also engaged in a "strike" by the same conduct.
In the case before us, the employment practices and arrangements
contemplated by United Engineers and the Respondents are clearly
evidenced by their National Construction Agreement. United Engi-
neers agreed to look exclusively to the UA for the supply of pipe-
fitters for work within the territorial jurisdiction of Local 636. All
pipefitters were required to join the UA "on the earliest date pro-
vided for by applicable Federal Law" as a condition of employment
with United Engineers. The record establishes that all pipefitters
employed by United Engineers were UA members, and that all such
pipefitters were requested from, and were referred by, Local 636.
This contractual arrangment was tantamount to an exclusive hiring
hall. No pipefitter within Local 636s jurisdiction could hope to
obtain employment with United Engineers unless his availability
was known to the Local and unless the Local selected him from the
pool of available union members for referral to that company. How-
ever, the intended employment practices and arrangements did not
stop with these hiring procedures. Under the Agreement, United
Engineers contracted to make payments into various health, welfare,
Pension and vacation funds for UA members. In addition, contribu-
tions were made to a trust fund for the education of journeymen
pipefitters and their apprentices. The Agreement does not restrict
payment of these benefits only to pipefitters who are under a technical
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract of hire with United Engineers. Rather, it seems clear that.
they are available to all members of the Respondent Unions without
regard to their immediate employment status.
Upon careful consideration of the foregoing facts, we find merit in
the contentions of the General Counsel and the Charging Parties;
that the pipefitters whom Respondents refused to refer to United.
Engineers were "employees" within the meaning of Section
8(b) (4) (A). Where, as here, an employer agrees by contract to look
to a union as the exclusive source of supply of workers; where only
union members are hired by the employer as a result of referrals by
the union; and, where the contract obligates the employer to con-
tribute to fringe benefit plans in which the union members generally
share, we are convinced that "an established arrangement and course
of employment" is contemplated affecting members of the union
which have sufficient characteristics of "certainty and continuity"
to warrant the conclusion that they are "employees," even though
they do not stand "in the proximate relation of employer and em-
ployee." As such an arrangement and course of employment existed
in this case, we find that the members of Local 636 occupied the
statutory status of "employees" when Respondents refused to refer
them for work with United Engineers.
Although the General Counsel contends that the men whom Re-
spondents failed to refer to DiDuca Brothers and Partlan Company
were also "employees," the record lacks evidence that those employers
were parties to the National Construction Agreement. We therefore
conclude that no employment relationship had arisen in these in-
stances and we shall dismiss the complaint insofar as it alleges that
Respondents violated the Act by refusing to refer members to those
companies.
As we have already found, Respondents violated Section
8(b) (4) (A) by engaging in a strike, and by inducing and encourag-
ing their members to cease working for United Engineers at River
Rouge because Respondents objected to the installation of Westing-
house pipe. The Respondents were not by such means merely seeking
to force a cessation of work on Westinghouse equipment at that
project. The Trial Examiner appropriately found that their ob-
jectives were more comprehensive. They sought to insure that no,
contractor subject to the National Construction Agreement would
handle prefabricated piping at any of Edison's projects within the
territorial jurisdiction of Local 636 which did not satisfy the
"fabrication" clauses, and to force Edison to conform its purchasing
policies to those clauses. Thus, when Respondents decided not to
refer its members to United Engineers, their refusal to do so was not
conduct isolated and divorced from the existing illegal strike in which
they were engaged. Rather, it was part and parcel of that strike and
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 237
was inseparably designed to accomplish Respondents' more compre-
hensive boycott objectives. Accordingly, we find that the Respond-
ents, by refusing to refer members to United Engineers, implemented
and perpetuated their unlawful strike at River Rouge and for this
reason violated Section 8(b) (4) (A).
For additional reasons, we believe that Respondents violated the
Act by its refusal to refer. Every UA pipefitter who worked for
United Engineers was procured from and was referred by the Re-
spondents. So far as these men were concerned, their prospects of
employment with that company, either at River Rouge or at any
other Edison project within the jurisdiction of Local 636, depended
-entirely upon whether the Respondents channelled information to
them concerning the availability of jobs with United Engineers.
Possessed with this information, Respondents were in a position to
,determine whether their members would work or remain idle. By
withholding it, they could insure that their members remained ig-
norant of job opportunities. To "induce or encourage," as the Su-
pren.e Court has stated, involves- "every form of influence or per-
suasion." 12 In our opinion, when a union assumes the role of an
exclusive clearing house for jobs in its jurisdiction, the refusal to
inform its members that jobs are available is as effective in influenc-
ing or persuading them not to work as any affirmative instruction
in this regard would be. We therefore find that, by refusing to refer
pipefitters to United Engineers in the circumstances presented here,
the Respondents unlawfully induced and encouraged employees to
engage in a strike or a concerted refusal in the course of their em-
ployment to perform services.
We further conclude that the Respondents engaged in a "strike"
with the meaning of Section 8 (b) (4) (A) when they failed to refer
members to United Engineers. That term encompasses "any strike"
or "other concerted interruption of operations by employees." Where
a union, as the agent of its members, refuses to permit them to work
for any employer with whom it has a labor agreement by the simple
expedient of failing to dispatch them to a project where operations
are about to commence or already are in progress, the union causes
a concerted interruption of the employer's operations as surely as if
it had called the men off the job where they were already at work.
What the Respondents did here was no different than what the union
had done in Charleston Stevedoring Co. By refusing to post re-
quests for longshoremen on its bulletin board, the union in that case
was found to have struck in violation of Section 8(b) (4) (A). By
refusing to refer pipefitters to United Engineers in this case, we find
that the Respondents engaged in the same violation.
12See footnote 2, supra.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that the Respondents, by refusing to refer
pipefitters to United Engineers, engaged in, and induced or en-
couraged employees of United Engineers to engage in, a strike or
concerted refusal in the course of their employment to perform
services for objects proscribed by the Act and thereby offended the
provisions of Section 8(b) (4) (A).13
THE REMEDY
We have found that the Respondents engaged in a strike and in-
duced or encouraged employees of United Engineers at Edison's
River Rouge project to engage in a strike and a concerted refusal in
the course of their employment to handle Westinghouse piping for
the proscribed objects alleged in the complaint. We shall therefore
order them to cease and desist therefrom.
We have further found that the Respondents, in violation of the
Act, engaged in a strike; and induced or encouraged the employees of
United Engineers to engage in a strike or a concerted refusal in. the
course of their employment to perform services by refusing to refer
pipefitters to United Engineers for work at the River Rouge project.
The record discloses that Edison has canceled its contract with United
Engineers for the erection of the turbine unit at St. Clair because
of the latter's inability to obtain pipefitters from the Respondents.
So far as appears, United Engineers' contract to erect a power unit
at Monroe is still in effect. However, this employer has been in-
structed by Respondents not to request pipefitters for that project.
Because the piping for the turbines at the St. Clair and Monroe sites
has been prefabricated by employees of Westinghouse and Allis-
Chalmers who do not belong to the UA, any employer which is a
signatory to the National Construction Agreement and which is re-
tained by Edison to erect those turbines will be in the same position as
United Engineers in that it must obtain pipefitters from the Re-
spondents. The thrust of the Respondents' unlawful conduct is aimed
at forcing Edison to alter its purchasing policies to insure that only
piping prefabricated by employers under contracts with the UA
will be used on Edison's projects. Consequently, we believe there
exists the danger that Respondents' violations evidenced here will
manifest themselves at other Edison projects within the territorial
jurisdiction of Local 636 in the future. To effectively curb the ex-
tension of Respondents' unlawful activities to other employers who
may be called upon to install prefabricated piping at St. Clair and
Monroe as well as other Edison projects within that jurisdiction,
13 To the extent that it is inconsistent with the decision herein, Members Rodgers and
Jenkins would overrule the decision of the Board in the Joliet case, supra, 'footnote T.
Chairman Leedom and Members Bean and Fanning do not find it necessary There to pass
upon the validity of the Board 's decision in the Joliet case.
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 239
we find it necessary to fashion a remedial order broad enough to
encompass these employers and projects.'
Accordingly, we shall order the Respondents to cease and desist
from refusing to refer its members, upon request of employers, in-
cluding United Engineers and others with whom Respondents are
in similar contractual agreement,'-' for work on piping at Edison's
project in St. Clair and Monroe, or at any other such project within
the territorial jurisdiction of Local 636, because such piping has been
prefabricated off those sites by non-UA members.
We are mindful, as was the court in the Joliet case, that Local
636's pipefitters may individually refuse to handle or install piping
which has been prefabricated by employees who belong to a union not
affiliated with Respondent Unions, without violating Section
8(b) (4) (A). We recognize that the Board may be without constitu-
tional or legislative authority to direct them to do so and the reach
of our Order herein does. not purport to accomplish this result.
However, we are equally mindful, as was the court in the Clark
case,'', that "The individual employee has a right to make his own
independent choice as to whether he will handle [so-called `hot goods']
free from any direct or indirect pressure or `encouragement' by the
union." To insure this freedom of choice, we shall direct that the
Respondents notify members of Local 636 that Respondents have no
objection to their handling or installing piping at St. Clair and
Monroe, or at any other Edison project within the territorial juris-
diction of Local 636, which has been prefabricated by any employer
with employees who are not members of Respondent Unions.
We shall also order the Respondents to notify members of Local
636 that any previous instructions, requests, or appeals which Re-
spondents have issued forbidding the handling or installation of
piping at Edison's projects which is prefabricated by non-UA em-
ployees have been withdrawn, and that the "fabrication" clauses in
the National Construction Agreement do not prohibit or otherwise
preclude any member of said Local from handling or installing pre-
fabricated piping which does not satisfy the terms of those clauses.
We shall further order that Respondents notify members of Local
636 that they will not discipline, penalize, or otherwise discriminate
against any member for working on prefabricated piping at Edison's
aforementioned projects which contravenes the terms of the "fabrica-
tion" clauses.
14 In its exceptions, Edison urges that the Board 's order be extended to include Local 777,
affiliated with the UA, whose jurisdiction covers the Port Huron, Michigan , area. No
charges have been filed against that Local, nor has it been named in the complaint.
Edison ' s exceptions in this connection are therefore overruled.
11 Our decision herein is in no way intended to require Respondents to refer members
upon the request of employers within the jurisdiction of Local 636 with whom Respondents
are not in similar contractual agreement to refer pipefitters.
16 Supra, footnote 5.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall also order the Respondents to repeat and emphasize to
members of Local 636, in response to any inquiries by members at
Local 636 meetings, or by telephone or otherwise, the facts which
the Board has herein directed Respondents to make known to Local
636's members.
Finally, we shall order the Respondents to mail to each member of
Local 636 a copy of the notice appended to this Decision and Order,
in addition to posting the same in the places and at the times pre-
scribed in the Order.
ORDER
Upon the basis of the entire record in this proceeding, and pur-
suant to Section 10(c) of the National Labor Relations Act, the Na-
tional Labor Relations Board hereby orders that Respondents, Local
No. 636 of the United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO, and United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, and their officers, representatives,
successors, assigns, and agents, including Tim McCarthy and William
B. Kelley, shall:
1. Cease and desist from :
(a) Engaging in a strike, and inducing or encouraging the em-
ployees of United Engineers and Constructors, Inc., or of any other
employer or person, to engage in a strike or concerted refusal in the
course of their employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or
commodities or to perform any services for their employers, where
an object thereof is to force or require United Engineers and Con-
structors, Inc., or any other employer or person, (1) to cease pur-
chasing, using, handling, transporting, or otherwise working on or
dealing in materials fabricated by Westinghouse Electric Corpora-
tion or by any other employer or person who does not employ Build-
ing Trades Journeymen and Apprentices for the fabrication of said
materials under an agreement with United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO, or its affiliated Locals, or
(2) to cease doing business with the employers or persons mentioned
in (1) above or with The Detroit Edison Company.
(b) Engaging in a strike, and inducing or encouraging the em-
ployees of United Engineers and Constructors, Inc., or of any other
employer or person which is a signatory to the National Construction
Agreement or any other such agreement with United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada, AFL-CIO, to engage in a
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 241
strike or concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities or to perform any services
for their employers, by refusing, upon request of such employers, to
refer members of Local 636, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, for work with said employers,
for the objects described in (a) above.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Notify the members of said Local that Respondents have no
objection to their installing or otherwise handling piping at any
project of The Detroit Edison Company within the territorial juris-
diction of said Local which has been prefabricated by any employer
with employees who are not members of Respondent Unions.
(b) Notify the members of said Local that any previous instruc-
tions, requests or appeals which Respondents have made against in-
stalling or otherwise handling piping at projects of The Detroit
Edison Company within the territorial jurisdiction of said Local,
which piping was prefabricated by employees who are not members
of Respondent Unions, have been withdrawn, and that the "fabrica-
tion" clauses in the National Construction Agreement or any other
such agreement with United Engineers and Constructors, Inc., or
any contractor retained by The Detroit Edison Company to erect
turbine units at projects within the Local's jurisdiction, do not pro-
hibit or otherwise preclude any member of said Local from installing
or otherwise handling prefabricated piping which does not satisfy
the terms of those clauses.
(c) Notify the members of said Local that Respondent will not
discipline, penalize, or otherwise discriminate against any member for
working on prefabricated piping at The Detroit Edison Company's
aforementioned projects which contravenes the terms of the "fabrica-
tion" clauses.
(d) Repeat and emphasize to members of said Local, in response to
any inquiries by members, at meetings of said Local, by telephone
or otherwise, the facts which the Board has herein ordered the Re-
spondents to make known to members of said Local.
(e) Post at the offices of Local 636, and at all other offices and
places where notices to members of said Local are customarily posted,
copies of the notice attached hereto marked "Appendix A." 14
Copies of said notice, to be furnished by the Regional Director for
the Seventh Region, shall, after being duly signed by official repre-
17 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."
508889-60-vol. 123-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives of Respondents, including Tim McCarthy and William B.
Kelley, be posted immediately upon receipt thereof, and maintained
for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Mail to each member of Local No. 636 copies of the notice
attached hereto marked "Appendix A."
(g) Mail to the Regional Director for the Seventh Region signed
copies of said notice for posting by United Engineers and Construc-
tors, Inc., and The Detroit Edison Company, if willing, in places at
the River Rouge, St. Clair, and Monroe, Michigan, projects where
notices to employees of United Engineers and Constructors, Inc., or
the employees of any other employer retained by The Detroit Edison
Company to erect the turbine units which is a party to the National
Construction Agreement, are customarily posted.
(h) Notify the Regional Director for " the Seventh Region in
writing, within 10 days from the date of this Order, what steps the
Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the Respondents violated Section 8 (b) (4) (A) of the Act with re-
spect to the employees of DiDuca Brothers, Inc., J. W. Partlan Com-
pany of Detroit, Michigan, General Electric Corporation, Allis-
Chalmers Manufacturing Company, Spitzley Plumbing and Heating
Co. of Detroit, Michigan, Babcock & Wilcox, Clement Electric Com-
pany, and the Crane Company, be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL MEMBERS OF LOCAL No. 636 AND OF THE UNITED AS-
SOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND
PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-
CIO, AND TO ALL EMPLOYEES OF UNITED ENGINEERS AND CONSTRUC-
TORS, INC.
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, we hereby notify you that :
WE WILL NOT engage in a strike, or induce or encourage the
employees of United Engineers and Constructors, Inc., or of any
other employer or person, to engage in a strike or concerted re-
fusal in the course of their employment to use, manufacture,
process , transport , or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any services
for the employer, where an object thereof is to force or require
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 243
United Engineers and Constructors, Inc., or any other employer
or person, (1) to cease purchasing, using, handling, transporting,
or otherwise working on or dealing in materials fabricated by
Westinghouse Electric Corporation or by any other employer or
person who does not employ Building Trades Journeymen and.
Apprentices for the fabrication of said Materials under an agree-
ment with United Association of Journeymen and Apprentices.
of the Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL-CIO, or its affiliated Locals, or (2) to cease
doing business with the employers or persons mentioned in (1)
above or with the Detroit Edison Company.
WL WILL NOT engage in a strike, or induce or encourage the-
employees of United Engineers and Constructors, Inc., or of any
other employer or person which is a signatory to the National
Construction. Agreement, or any other such agreement, with
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO, to engage in a strike or concerted refusal
in the course of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services for their
employers, by refusing upon request of such employers to refer
members of Local No. 636, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO, for work with said
employers, for the objects described in the paragraph above.
WE WILL withdraw all previous instructions, requests, and
appeals to members of Local No. 636 not to install or otherwise
handle piping at projects of Detroit Edison Company within
the territorial jurisdiction of said Local which has been pre-
fabricated away from the projects by employees of employers
who are not parties to the National Construction Agreement
or any other such agreement. Further, the fabrication clauses
in that Agreement do not prohibit or otherwise preclude any
member of Local No. 636 from installing or otherwise handling
prefabricated piping which does not satisfy the terms of those
clauses.
WE WILL NOT discipline, penalize, or otherwise discriminate
against any member of Local No. 636 for working on prefabri-
cated piping at the aforementioned projects of The Detroit
Edison Company which does not satisfy the terms of the fabri-
cation clauses.
WE WILL repeat and emphasize to members of Local No. 636,
in response to any inquiries -by members at meetings of said
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local; or by telephone or otherwise, the facts in this notice which
the Board has ordered us to make known to members of said
Local.
LOCAL No. 636 OF THE UNITED ASSOCIA-
TION OF JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPEFITTING
INDUSTRY OF THE UNITED STATES AND
CANADA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
Dated---------------- By-------------------------------------
WILLIAM B. KELLEY, President
Dated---------------- By-------------------------------------
Tim MCCARTHY, Business Manager
UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF T..IE PLUMBING
AND PIPEFITTING INDUSTRY OF TIIE
UNITED STATES AND CANADA, 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by The Detroit Edison Company and Westinghouse Electric
Corporation, herein called Edison and Westinghouse, respectively, the General
Counsel of the National Labor Relations Board, by the Regional Director for the
Seventh Region (Detroit, Michigan), issued a complaint dated April 16, 1957,
alleging that the Respondents, herein sometimes called Respondent Local 636 and
Respondent International, had engaged and were engaging in unfair labor practices
within the' meaning of Section 8(b) (4) (A) and Section 2(6) and (7) of the
National Labor Relations Act, 61 Stat. 136, herein called the Act. More spe-
cifically, the complaint, as subsequently amended, alleges in substance that since
on or about January 21, 1957, the Respondents have engaged in and induced and
encouraged the employees of United Engineers and Constructors, Inc.,' DiDuca
Brothers, Inc., and of other named employers 2 at Edison's construction projects
at River Rouge, St. Clair, and Monroe, Michigan, to engage in a strike or concerted
refusal in the course of their employment to handle or work on materials of
perform services with an object of forcing or requiring United Engineers and
Constructors, Inc., and/or any other contractor of Edison to cease using materials
fabricated by Westinghouse and/or other employers who fabricate pipe with
employees who are not members of or represented by Respondent International
'At the commencement of the hearing, a motion by counsel for United Engineers and
,Constructors, Inc., herein called United Engineers, to intervene and participate to the
-extent of its interest was granted without objection.
2 General Electric Corporation, Allis-Chalmers Manufacturing Company, Spitzley Plumb-
ing and ITe:nting Company of Detroit, Johnson and Larson of Detroit, Babcock & Wilcox,
Clement Electric 'Company, and Crane Company.
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 245
and/or one of its locals, or who fabricate pipe away from said construction sites,
and to cease doing business with Westinghouse and/or such other employers, and
to force or require United Engineers and Constructors, Inc., and the other named
employers, to cease doing business with Edison. In their duly filed answers, as
subsequently amended, the Respondents generally denied the unfair labor practice
allegations.
Pursuant to due notice, a hearing was held at various intervals during the
period from June 3 to July 2, 1957, at Detroit, Michigan. All parties were repre-
sented at the hearing, afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce relevant evidence, to present oral argument, and
thereafter to file briefs as well as proposed findings of fact and conclusions of law.
The Respondent's motion to dismiss the complaint, made at the conclusion of the
hearing and upon which I reserved ruling, is granted in part and denied in part, in
accordance with the findings of fact and conclusions of law made below.
Subsequent to the hearing, Westinghouse and Edison filed separate motions to
correct the transcript. Thereafter, with one exception, the parties either concurred
in, or made no objections to, the granting of these motions. The exception relates
-to the proposed correction contained in Edison's motion that the word "exception"
on page 1156, line 3 of the transcript of testimony be changed to "acceptance," to
which Respondents object on the ground that the proposed change does not appear
to be correct. I have examined the changes proposed in the motions of Westing-
house and Edison and, with the exception above noted, find them to be correct.
Accordingly, I hereby grant the motions to correct the transcript of testimony,
except in the respect above noted. The documents in connection with these
motions are hereby made part of the record in this proceeding, and have been
placed in the official exhibit folder as Trial Examiner's Exhibit No. 1 (a) - 1 (e),
inclusive. Subsequent to the hearing, all parties filed briefs, which I have fully
considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. COMMERCE; THE BUSINESS OF THE COMPANIES 3
Westinghouse Electric Corporation, herein called Westinghouse, is a Pennsyl-
vania Corporation, engaged in the manufacture, distribution, and sale of electrical
products and various types of equipment throughout the several States of the
United States, and of ordnance materials and electronic products used by the
Armed Forces of the United States. During the year 1956, Westinghouse sold
and shipped finished products, valued in excess of $500,000,000, to States outside
the State in which these products were produced; during the same period, it sold
products, valued in excess of $1,000,000, to manufacturers, each of whom annually
shipped products, valued in excess of $250,000, to points outside the State in
which these products were manufactured. During 1956, Westinghouse shipped
materials, valued in excess of $1,000,000, from States other than the State of
Michigan to the project site of the Edison power plant at River Rouge, Michigan,
for use in the construction and erection of a powerplant for Edison.
The Detroit Edison Company, herein called Edison, is and, at all times material
herein, has been a public utility engaged in the generation, sale, and distribution
of electrical energy within the State of Michigan. It annually purchases from out-
side the State of Michigan supplies and equipment, valued in excess of $5,000,000,
and annually sells electrical energy, valued in excess of $25,000,000, to manufac-
turing plants located in the State of Michigan, including General Motors Corpora-
tion and Chrysler Corporation. During 1956, Edison's gross income from its
entire system was in excess of $230,000,000.
United Engineers and Constructors, Inc., herein called United Engineers, is and,
at all times material herein, has been a corporation, with its operating headquarters
and principal office and place of business in Philadelphia, Pennsylvania, which
annually performs services, valued in excess of $1,000,000, outside the State of
Pennsylvania. United Engineers is and, at all times material herein, has been
engaged in the construction and erection of a powerplant for Edison at its River
Rouge, Michigan, project, pursuant to a contract price in excess of $75,000,000.
During 1956, United Engineers furnished services, valued in excess of $100,000,
to Edison at River Rouge, Michigan.
3 The findings in this section are based on the allegations in the complaint and upon a
stipulation of the parties that responsible and qualified witnesses, if called by the General
Counsel, would testify to the facts alleged in the complaint and set forth In the text.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Westinghouse, Edison , and United Engineers are engaged in com-
merce within the meaning of the Act.
II. THE RESPONDENTS
I find, as the Respondents admit, that the International and its Local, United
Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canda, AFL-CIO, and its Local No. 636, herein
sometimes called the International or United Association or the UA and Local 636,
respectively, are labor organizations within the meaning of Section 2(5) of the Act.
I find, as the Respondents also admit, that at all times material herein, Tim
McCarthy was, and is, business manager of Local 636, and William B. Kelley
was, and is, president of Local 636.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The evidence adduced in support of the complaint is either uncontradicted or
admitted by the Respondents. Consequently, as the General Counsel and Re-
spondents concede in their briefs, there is no serious controversy as to the facts
in the case. The dispute which gave rise to this proceding arose in connection
with the installation of a Westinghouse turbine generator for Unit No. 2 at River
Rouge, Michigan, by employees of United Engineers, which is the general con-
tractor for Edison in the construction of a powerplant.
1. Edison's projects: Edison has powerplants located in Michigan at Trenton
Channel, Conners Creek, St. Clair or Marine City, and River Rouge. Two units
were installed at Trenton Channel in 1948 or 1949, and at Conners Creek in 1951.
Units 1, 2, 3 and 4 at St. Clair and Unit No. 1 at River Rouge were completed
before the dispute in question arose. In 1956 Edison was engaged in an expansion
program at River Rouge and St. Clair to increase its generating capacities. As part
of this expansion program, it was having two additional steam generating units
constructed at River Rouge, known as Units Nos. 2 and 3, and had started work
on two steam-generating units at St. Clair, known as Units Nos. 5 and 6. Edison
has also begun work on a conventional steam turbine generating unit at its Enrico
Fermi powerplant at Monroe, Michigan, known as Unit No. 1. The dispute in
question arose in connection with the construction of Unit No. 2 at River Rouge.
2. Relationship between Edison and United Engineers: United Engineers was
the general contractor employed by Edison in the construction of two units at
Conners Creek, Units Nos. 1, 2, 3, and 4, at St. Clair, and Units Nos. 1, 2, and 3
at River Rouge. On August 29, 1956, Edison gave United Engineers a contract
as general contractor on St. Clair Unit No. 5, with an option for St. Clair Unit
No. 6. During the course of the hearing in this proceeding, Edison, by letter
dated June 11, 1957, canceled this contract with United Engineers, although work
had already commenced on Unit No. 5. Edison has also given United Engineers
a contract as general contractor for the construction of the steam generating unit
at the Enrico Fermi Atomic Power plant at Monroe, Michigan .4
The contracts between United Engineers and Edison place upon United Engi-
neers the basic responsibility for building the powerplant by furnishing skilled
labor and supervising the handling and erection of the turbine generator. All
material and equipment are to be purchased and furnished by Edison. Under the
contract, Edison retains sole control over the purchasing of all material and
equipment and makes the policy decision as to what portions of the work should
be performed by United Engineers and what portions should be subcontracted by
Edison. If subcontracts are let, the administration of the contracts are turned over
to United Engineers to see that time, quality, and performance is in accordance
with the contract. The work which Edison decides is to be performed by United
Engineers is done on "a force labor account"; that is, United Engineers hires the
workmen directly, bills Edison for the cost of the work, and receives a fixed fee
from Edison. In no event does Edison have any employees engaged in manual
or physical work at any of the projects on which United Engineers is general
contractor. Thus, Edison had given the piping work on the Conners Creek project
to another contractor, with United Engineers supervising its performance. How-
ever, United Engineers itself was given the piping work at St. Clair Units Nos. 1,
2, 3, and 4 and at River Rouge Units Nos. 1, 2, and 3. Up to the time that United
Engineers' contract for St. Clair Units 5 and 6 was canceled, Edison had made no
4 United Engineers has a separate contract as general contractor from the Power
Reactor Development Company for the atomic energy portion of the Enrico Fermi plant.
LOCAL 636 , PLUMBING AND PIPE FITTING INDUSTRY 247
decision with regard to the piping work on these units. And as of the close of
the hearing , no decision had been made by Edison with respect to the piping work
at the Enrico Fermi project at Monroe , Michigan.
3. Edison 's purchasing policy: It has always been Edison 's policy to purchase
its material and equipment from the vendor who offers the best value , without
regard to union affiliations . In the case of turbine generators , it has always been
Edison 's policy to purchase the unit as a complete package , that is a complete
operating unit containing everything that goes on the generator from the turbine
stop valve to the generator leads and all appurtenances . The reason underlying
this policy is to enable Edison to center responsibility for the entire turbine
unit in one company. As in the case of other material and equipment , the package
turbine generator is purchased from whatever manufacturer offers Edison the best
buy for its money, under the circumstances . Thus, Westinghouse is the manu-
facturer of the turbine generator for two of the units at Conners Creek, for Unit
No. 6 at St. Clair,5 and for Unit No . 2 at River Rouge; General Electric Corpora-
tion is the manufacturer of the turbine generator for Units Nos. 1, 4, and 5 at
St. Clair ,6 and for Unit No. I at River Rouge; and Allis-Chalmers Manufacturing
Company is the manufacturer of the turbine generator for Units Nos. 2 and 3 at
St. Clair, for Unit No. 3 at River Rouge , and for Edison 's portion of the Enrico
Fermi project at Monroe . The dispute in question began in connection with the
installation of a Westinghouse turbine generator for Unit No. 2 at River Rouge.
4. Relationship between Edison , Westinghouse , and United Engineers: In ac-
cordance with the above-described purchasing policy, the turbine generator for
Unit No. 2 at River Rouge was purchased by Edison from Westinghouse. The
.contract between Edison and Westinghouse requires Westinghouse to provide
erection supervision for the turbine generator . Lester Smith , service engineer for
Westinghouse , was the Westinghouse representative designated as the erector in
charge of the erection of the turbine generator for Unit No . 2. It is his function
to furnish technical advice and assistance to United Engineers and its supervisors
with respect to the performance and progress of the work . Westinghouse has no
employees who are engaged in physical or manual work at River Rouge.
Between the stop valve and the generator leads on Westinghouse 's turbine gen-
erator , there is a considerable amount of prefabricated lubrication and steam drain
and gland piping , which is an internal part of the turbine package purchased by
Edison for Unit No. 2. This pipe was fabricated ( that is , cut, bent , and welded)
at Westinghouse's South Philadelphia works at Lester , Pennsylvania , by pipefitters
represented by United Electrical , Radio and Machine Workers of America (U.E.),
their certified bargaining representative . It was the arrival of this Westinghouse
prefabricated pipe for Unit No. 2 at River Rouge, which set off the dispute giving
rise to this proceeding.
5. Relationship between United Engineers and Respondents : Since 1947 , United
Engineers has had a collective -bargaining agreement with United Association,
Respondent International , known as the National Agreement . Respondent Local
636 has been working under the terms of this National Agreement. Pursuant to
this agreement , United Engineers has employed all pipefitters , including foremen,
through Local 636. The pipefitters employed at the River Rouge project , including
the pipefitting foremen and general foreman , Respondent William B. Kelley, were
all members of Local 636 . Thus, the general piping foreman , was also president
of Local 636.
Fabrication of pipe means any work performed on a straight length of pipe, such
as bending , cutting a thread, forming or joining together by welding or screwing,
or installing flanges. At all times material to the issues in this case in connection
with the River Rouge project, as Respondents concede in their brief , the following
fabrication clause in the contract between the United Association and United
Engineers was in effect: 7
6 This generator is on order and is to be delivered January 2, 1960.
6 The generator for Unit No . 5 is to be delivered on September 1, 1958.
v This fabrication clause appeared in the 1947 agreement and, by the terms of the
agreement of March 7 , 1956, was to remain In effect till March 1, 1957 . As stated in
Respondents ' brief, "Insofar as the fabrication clause of the 1956 contracts relate to this
case, the 1956 fabrication clauses never became effective since on June 17, 1957, NCA
[National Constructors Association ] and Respondent International entered into a new
agreement under which the fabrication clause, Article XVI, was changed back to conform
to the terms of the fabrication clause contained In the 1947 agreement ." In any event,
insofar as the issues in this case are concerned , the fabrication clause in all contracts are
essentially the same , as Respondents concede in their brief.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARTICLE IX: ERECTION
(A) Pipe work of every description being installed under the supervision of
the employer, employing Journeymen of the United Association in the plumb-
ing and Pipe Fitting Industry, must be handled, assembled, erected and installed
by Journeymen members of the United Association.
(B) It is understood by the Parties of this Agreement that the pre-fabrica-
tion of welded pipe formations two and one-half inches and over in diameter
and all pipe bends, bends two and one-half inches and over in diameter may
be performed at the site of the job or in the plant of the employer, employing
Journeymen of the United Association at the prevailing building construction
wage rates in effect wherever the employer's plant may be located.
(C) The Local Unions of the United Association reserve the right to
refuse to handle erect or install fabricated materials sent to the job that have
not been fabricated by Journeymen members of the United Association,
receiving the prevailing building construction wage rate in effect wherever the
pipe fabrication shop may be located.
THE WORK TO BE PERFORMED IN THE FIELD SHALL INCLUDE:
1. Unloading, handling and erecting of material.
2. Installation of hangers and supports.
3. Making of all bends with a nominal diameter of two inches or less.
4. Cutting and threading all pipe with a nominal diameter of two inches or
less.
5. The attaching and assembling of all pipe fittings and valves whether
welded, screwed or flanged, except as noted in paragraph "B" of this Article.
6. Personnel involved: It may be helpful to set forth at the outset the positions
held by those most involved in the events hereinafter discussed.
(a) Edison: Walker Cissler is president; Chester F. Ogden, manager of pur-
chases and real estate; and Myles Scott, field assistant to the manager of con-
struction.
(b) Westinghouse: Lester Smith is service engineer or erector.
(c) United Engineers: The following are most often mentioned: Henry Chance,
president; Franklin L. Johnston, vice president; Gerald H. Brown, construction
manager; Walter F. Oleksiak, assistant to Brown; William M. Dallman, general
superintendent over the River Rouge project; Walter S. Hulse, assistant to Dallam;
Gene Weiss, piping superintendent; William B. Kelley, general piping foreman;
"Red" Morgan, yard foreman; and Stolliker, turbine room foreman.
(d) Respondent Local 636: General Piping Foreman Kelley is president; Timo-
thy McCarthy is business manager; and Norman McShane is an assistant business
manager. Kelley and McCarthy are also Respondents in this proceeding.
(e) Respondent International or United Association: Peter T. Schoemann is
general president; John J. McCartin is Schoemann's assistant; and Gene Bradshaw
is a general organizer for the International . The International 's constitution
designates the general organizers as officers of the International.
B. Sequence of events
1. Incident involving Crane pipe
In the fall of 1956, officials of Edison and of United Engineers attended a meet-
ing at which they talked with bidders for the power piping for St. Clair Units
Nos. 5 and 6. One of the prospective bidders was a local contractor by the name
of Joe Spitzley of Spitzley Plumbing and Heating Company of Detroit. As Spitzley
was an erector and not a fabricator, he would have to buy prefabricated pipe from
a fabricator. Spitzley was asked where he would get the pipe fabricated if he
were awarded the erection and supply contract by Edison. Spitzley replied that
he would get the pipe fabricated by the Crane Company. Crane Company has a
fabricating plant in Birmingham , Alabama, and in Chicago, Illinois. The United
Association has a contract with Crane Company covering the Alabama plant but
not for the Chicago plant.
Spitzley later telephoned to Tim McCarthy, business manager of Local 636,
told him that he was bidding on the job at St. Clair, and mentioned the Crane
piping. McCarthy knew that Crane Company did not have a contract with the
United Association for the Chicago plant and replied that "as long as you [Spitz-
ley] live up to the terms of our agreement , and the fabrication clause in our
agreement, we will have no problem, Joe." Spitzley also got in touch with
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 249
McCartin, assistant to the general president of the United Association in Washing-
ton, D. C., to obtain information regarding the use of Crane pipe. McCartin told
Spitzley that he had a local agreement and should abide by that agreement.
At a meeting between officials of Edison and of United Engineers on December
12, 1956, Ogden, manager of purchases and real estate for Edison, asked if United
Engineers could erect pipe fabricated by the Crane Company in its Chicago shop.
Johnston, vice president of United Engineers, replied that "it would be a violation
of our agreement" with the United Association. Ogden exclaimed, "do you mean
to say that if we can save two hundred thousand dollars by purchasing Crane
pipe, that we would not be permitted to do so because of your agreement!"
Johnston replied in the affirmative but disagreed that Edison would effect such a
saving because "your competition must be with the UA [United Association]
shops. In response to a question as to whether there had been any problem with
the General Electric unit, Johnston replied in the negative and that he had been
advised that the pipe was fabricated by General Electric in accordance with the
UA agreement.8
2. Incident involving Clement panel boards
On July 6, 1956, Edison issued a purchase order to Clement Electric Co. of
Grand Rapids, Michigan, for panel boards to be furnished as required for River
Rouge Unit No. 3. Clement Electric Co., herein sometimes called Clement, had
previously furnished panel boards which were installed at St. Clair Units Nos. 1,
2, 3, and 4. The panel boards in question consist of measuring and control
devices which automatically control the combustion of boilers and generators in
utility plants. The panel board contains fabricated piping of various diameters
and is shipped as a completely assembled unit, which merely has to be connected
to the station piping at the powerplant.
On November 20, 1956, Tim McCarthy, business manager of Local 636, tele-
phoned to Edgar B. Clement, president and general manager of Clement Electric
Co., and asked Clement "if he employed members of the United Association in
his shop on the panel boards." When Clement replied in the negative, McCarthy
informed him that "under the terms of our agreement with United Engineers that
I was going to call United Engineers [at River Rouge] and instruct them that
the National Agreement was being violated and we did not intend to handle these
panel boards." Clement asked, "what about the letter?" McCarthy said that he
had no idea what Clement was talking about. The pipefitting work on the panel
boards was performed at the Clement Company by employees who have been
represented by a local of the IBEW for the last 15 years.
The letter referred to by McCarthy is dated March 24, 1950, on the letterhead
of Local 70 of the United Association in Grand Rapids, Michigan, and signed by
the business representative of Local 70. Addressed "To Whom It May Concern,"
the letter states that "This panel was manufactured in a Union Shop by Clement
Electric Company, and this letter is to certify that this local has investigated the
work and is familiar with it, and that the work has been performed in full com-
pliance with all the requirements of the Building and Construction Trade Council
(AFL)."
On December 31, Mr. Clement attended a meeting at which representatives of
Edison and United Engineers were present, and discussed the matter of processing
a secondary boycott charge in connection with the panel board incident. Brown,
construction manager for United Engineers, suggested that he be given an oppor-
tunity to go to McCarthy and see if he "couldn't settle this thing."
On January 2, 1957, Brown went to McCarthy's office and explained that he
did not understand why the United Association was objecting to the panel boards
when they had been installed on the previous job at St. Clair without any difficulty.
Brown then told McCarthy about the 1950 letter. McCarthy stated that if such
a letter existed, "we would have to accept the boards." Brown had a copy of the
letter sent to McCarthy and later telephoned to McCarthy, who stated that he
had read the letter and that "it was okay." The next day Brown got in touch
with Bill Kelley, general piping foreman for United Engineers and president of
Local 636, "to make sure that the situation was all right." Kelley stated that
McCarthy had been in touch with him and that "we were all set on the panel
boards." About the middle of January, Clement received a telephone call from
James Campbell, a representative of Detroit Edison, who stated that "the matter
had been cleared up and that everything was all set."
8 The parties stipulated that employees of General Electric engaged in fabrication of
pipe have been represented by a local of the United Association at all times material herein.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although one panel board had been shipped to River Rouge by the Clement Co.,
on December 20, the River Rouge project was not ready for the panel board until
sometime in February 1957. However, prior to that time, at a conference held
on January 24, Bradshaw , international organizer for Respondent International,
told representatives of United Engineers that Respondents would not handle the
Clement boards until the matter then under discussion was cleared up, as herein-
after discussed in detail. At that time Clement was informed by Edison that the
Union had reversed its position and was not going to handle the panels. The next
shipment, consisting of two sections of the control bench board, was made on
May 27, 1957, upon instructions from Edison, and arrived at River Rouge May 28,
1957. Respondents stipulated that these panel boards will be installed when the
employees are directed to install them.
3. January 21-Westinghouse pipe arrives at River Rouge but is not unloaded
On the morning of January 21, 1957, two gondola type carloads of fabricated
Westinghouse pipe arrived at River Rouge and were on a siding leading into the
turbine room. This was part of the pipe for the turbine generator unit purchased
by Edison from Westinghouse for Unit No. 2 at River Rouge, then under con-
struction.
United Engineers has a regular procedure for informing its personnel about the
arrival of pipe. At 8 a.m. each day a warehouseman looks at the receiving track,
where all railroad shipments are placed, and lists on a sheet the car numbers, with
a description of the material and date of arrival. This sheet is mimeographed and
copies are sent to all supervisors, including the general foreman of the craft
involved, in this case, Bill Kelley, general piping foreman. It was not necessary
for Dallam, United Engineers' general superintendent over the River Rouge project,
to give any instructions to Kelley or anyone else about the unloading or erection
of pipe. As Kelley had been in the employ of United Engineers throughout the
construction of the St. Clair units and River Rouge Unit No. 1, he was familiar
with the normal procedure in this respect. This procedure was for Yard Foreman
"Red" Morgan to have the cars delivered to the siding leading into the turbine
room, and then later for Stolliker, foreman of the pipefitters working on the
turbine generator unit in the turbine room, to arrange to have the pipe unloaded.
Both Morgan and Stolliker were under Kelley's supervision.
During the day Smith, the erector for Westinghouse, told Foreman Stolliker
that they should get the pipe unloaded. However, the pipe was not unloaded
either that day or during the entire week, and the cars remained on the siding.
Smith testified that they could have used some of the pipe "immediately, right
after the unloading," specifically the seal oil treating piping which was to be used
between the high pressure generator and the seal oil treating unit.
That evening General Piping Foreman Kelley, who was also president of Re-
spondent Local 636, called McCarthy, business manager of Respondent Local 636,
and informed him that a carload of fabricated pipe had been shoved into the
turbine floor earlier that night and that the car had a Westinghouse sign on it.
4. January 22-McCarthy calls Brown, United Engineers' construction manager;
Smith calls Kelley
On the morning of January 22, McCarthy telephoned to Brown, construction
manager for United Engineers, and said, "Jerry, we are in serious trouble at River
Rouge . . . you are in violation of your national agreement . you have got
some pipe that just came in on the job there that we don't like" because "it wasn't
fabricated in a UA shop." McCarthy stated that they were not going to unload
the pipe, that they were not going to handle the pipe, and that he had "orders
from Washington not to handle the pipe." After some discussion, McCarthy sug-
gested that Brown send a wire to Respondent International in Washington, D.C.,
and request that an organizer be assigned to the job.
Brown telephoned to Johnston, vice president of United Engineers with offices
in Philadelphia, and informed him that Kelley refused to unload the pipe. John-
ston told Brown to get McCarthy on the job, to arrange for Bradshaw, an Inter-
national organizer, to be present, and to try to settle the matter at the job level.
Brown thereupon sent a wire to Respondent International in Washington, D.C:,
requesting the assignment of an organizer, and was informed by return wire of
the assignment of Gene Bradshaw. Brown then got in touch with Bradshaw and
arranged a meeting for January 24 at River Rouge.
That afternoon , Lester Smith learned of the dispute over the pipe at a meeting
held in Edison's downtown offices. Upon his return to River Rouge, Smith asked
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 251
"Foreman Stolliker why the pipe was not going to be unloaded. Stolliker replied
that he did not know. Smith then called Kelley, general piping foreman and
president of Local 636, and asked him the same question. Kelley stated that it
would be easier to explain if he quoted from the agreement. Kelley then read the
reservation paragraph of the fabricating clause in United Engineers' agreement to
the effect that the pipefitters could refuse to handle prefabricated pipe which was
not fabricated by members of the United Association receiving the prevailing
building construction rates. Kelley also told Smith that the members had been
discussing prefabricated piping at a previous meeting and that when the Westing-
house pipe arrived on January 21 it was brought to his attention. As previously
stated, the Westinghouse pipe was fabricated by employees represented by United
Electrical, Radio and Machine Workers of America (U.E.).
5. January 24-Meetings between Respondents and United Engineers
McCarthy and Bradshaw arrived at Brown's office about 9:30 a.m. on January
24, 1957. Brown and his assistant, Walter Oleksiak, were present. At Bradshaw's
suggestion, Kelley was called into the office and remained during the meeting.
Bradshaw was the chief spokesman for the Respondents; Brown was the chief
spokesman for United Engineers.
Bradshaw stated that United Engineers was in violation of its national agree-
ment because the Westinghouse pipe which had recently arrived was "fabricated
in a shop not manned by our people." Bradshaw added that while Respondent
International had a gentleman's agreement with Westinghouse to make an exception
in the case of pipe fabricated for a shop tested machine, Westinghouse had not
lived up to its agreement.9 Bradshaw asked if the Westinghouse turbine was shop
tested, and Brown replied that "it wasn't." Bradshaw then stated, "Well, we just
can't go along with this . . . we are going to have to go the entire way, and also,
Jerry [Brown], the agreement you have worked out with Tim McCarthy on the
erection of the panel boards, we cannot go along with that." Brown wanted to
know why he "picked this particular job to raise a fuss on" when Westinghouse
units were being installed all over the country and United Engineers was doing
nothing different from what it had done with respect to the units already installed
at St. Clair and River Rouge. At that point Bradshaw stated that the International
was not particularly worried about the two carloads of Westinghouse pipe nor
about the Clement panel boards, that that was a minor issue, that what the
International was really worried about was the piping to be used at St. Clair for
Units Nos. 5 and 6, and that Edison had sought bids for the fabrication of the
power piping for the St. Clair units from a concern which did not have a contract
with the United Association. In response to Bradshaw's query as to the truth of
the latter statement, Brown replied that it was true. Brown mentioned that the
contractor's name was Spitzley and that he had heard that Spitzley would use
Crane pipe. Bradshaw asked why Detroit Edison did not change its purchasing
policy. Brown replied that as far as he knew Edison never changes its purchasing
policy and that United Engineers had no control over purchasing. Bradshaw
expressed a desire to see the two carloads of pipe and to go through the turbine
house to see where the material was to be placed.
Bradshaw, McCarthy, and Kelley left the room and made a thorough examina-
tion of the pipe in the two cars. Oleksiak then took Bradshaw and McCarthy on
a tour of the turbine house.
In the afternoon Brown, Oleksiak, Bradshaw, and McCarthy met again, by pre-
arrangement, in the lobby of the Detroit-Lelland Hotel in Detroit. Bradshaw
stated that the pipe was in violation of Respondents' agreement with United En-
gineers and that they were not going to handle the Westinghouse pipe nor the
Clement boards unless they could have some assurances that Detroit Edison was
going to buy piping for St. Clair "from a fair shop." Brown pointed out that
United Engineers has a contract with Edison to erect the equipment and material
purchased by Edison and that United Engineers has no control over Edison's pur-
chasing policies. At that point, Walter Oleksiak entered the conversation and
asked how they could give such assurances when "we are general contractors who
erect only. We furnish nothing." Bradshaw replied, "Well, I know that, Walt,
but if you could get from the purchasing department someone in whom you would
trust to pass the word down to me, I am sure I would take it and return with
that information and see what I could do about straightening out this piping on
9 There is no probative evidence in the record as to whether such an agreement in fact
existed, and I make no findings in this respect.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westinghouse." Oleksiak stated, "Gene, that's foolish. I don't know anyone in
Detroit Edison. I am not employed by Detroit Edison. They couldn't tell me
anything. How could I pass anything on to you? I am here to do a job, and
that's all I am interested in. I can't get from any one of those an assurance that
they will make their purchases to meet the agreement you talk about. That's
impossible. We can't do it." Bradshaw replied that that was the situation and
that they were not going to handle the Westinghouse pipe nor the Clement boards
until the situation at St. Clair was cleared up. Oleksiak asked what could be done
about unloading the two carloads of pipe, and pointed out that more was on the
way. Bradshaw said that they could do nothing about it. Oleksiak then asked,
"What are we going to do about St. Clair? There is going to be material coming
on at St. Clair." McCarthy then spoke up and said, "I don't think we dare do
anything. I don't think we are going to give you any men for St. Clair until this
thing is squared away." McCarthy also mentioned some jurisdictional matters at
St. Clair which he had previously discussed with Brown, and stated that he would
not furnish any men at St. Clair or at Monroe, where the Enrico Fermi project
was located.10
When it became apparent that no settlement could be achieved by the parties
at the meeting, Bradshaw, at Brown's request, sent a telegram to Schoemann, gen-
eral president of Respondent International, requesting that a meeting be arranged
between Schoemann and Johnston, vice president of United Engineers.
6. January 28-Pipefitters stop working on crossunder "T" piece, hydrogen control
piping and hydrogen coolers
During the period from January 21 until noon of January 28, Foreman Stolliker
and his crew of pipefitters were performing work on the turbine floor on the cross-
under "T" piece, the hydrogen control piping and the hydrogen coolers, all part
of the Westinghouse turbine Unit No. 2. After the lunch period on January 28,
the men did not return to work on these jobs but were employed elsewhere on
the project. Lester Smith, the erector for Westinghouse, asked Foreman Stolliker
why they were not working on the Westinghouse equipment. Stolliker replied
that he had received instructions from the Union "not to work on any more West-
inghouse equipment until this difficulty with the piping was settled." Oleksiak
visited the turbine floor that afternoon and asked Gene Weiss, piping superin-
tendent for United Engineers, what had happened to the pipefitters working on
the pipe. Weiss told him that the pipefitters had all stopped working on the pipe.
Oleksiak then asked Smith what had happened. Smith related that the foreman
had told him that they were not going to do anything until this meeting that was
coming up in Washington.
7. January 29-Johnston calls McCartin of Respondent International
On January 28, Brown, construction manager for United Engineers, telephoned
to Johnston, vice president of United Engineers, and reported that he had been
unsuccessful in settling the matter of the Westinghouse pipe with McCarthy and
Bradshaw on the job level.
On January 29, Johnston telephoned to John McCartin, assistant to the general
president of Respondent International, and told him that "we have a problem
out at River Rouge project, the Detroit Edison Company, in that approximately
three cars of pipe have arrived at the job site, and the fitters refuse to unload the
pipe." (Additional Westinghouse piping for Unit No. 2 had arrived on January
28 in a car which also contained turbine equipment). In reply to McCartin's
query, Johnston stated that the cars contained fabricated pipe. McCartin there-
upon told Johnston, "Well, you are in violation of your national agreement if
you are bringing pipe on the job fabricated." McCartin also related the incident
about a contractor by the name of Spitzley of Detroit seeking information from
McCartin about the use of Crane pipe and that McCartin had to inform Spitzley
that he had a local agreement and should be guided by it. Johnston then asked
as a favor to him that the pipe be unloaded and placed in storage to avoid incur-
ring demurrage charges and that the men resume work on the crossunder "T"
piece so that they could continue with the erection of the turbine generator.
Johnston also stated that he would like to arrange a meeting in Washington with
10 The findings with respect to the conversations at the two meetings are based on the
undisputed testimony of Brown and Oleksiak. It is immaterial to a resolution of the
issues in this case whether some of the conversations described in the text occurred in
the morning meeting, as Brown testified, or in the afternoon meeting, as Oleksiak testified.
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 253
McCartin and Schoemann, general president of Respondent International, to discuss
the matter. McCartin agreed to Johnston's request as a favor to him, and stated
that he would get in touch with Gene Bradshaw.
That day Johnston informed Brown of the results of his conversation with
McCartin, and told him that "undoubtedly as soon as this reaches the field Mc-
Carthy will call you to go ahead and unload the pipe."
8. January 30-Threeway-telephone conversation between Kelley, Oleksiak, and
McCarthy; Westinghouse pipe is unloaded and work resumed on crossunder "T"
piece
About 8 a.m. on January 30, General Piping Foreman Kelley called Oleksiak,
Johnston's assistant, and stated that he would try to arrange a threeway-telephone
conversation between McCarthy, Kelley, and Oleksiak and "try to get this pipe
thing settled." This threeway conversation was set up about 9:30 that morning.
McCarthy began the conversation by telling Oleksiak, "Walt, here is what we are
going to do on this pipe." McCarthy then stated that all Westinghouse pipe,
including future shipments, would be unloaded in the yard; that any machinery
or parts of machinery would be unloaded in the powerhouse; that the men would
resume work on the crossunder "T" piece; and that as far as the rest of the West-
inghouse piping is concerned, "We are not going to touch any of it until this
meeting with Washington." In response to Oleksiak's query about the panel
boards, McCarthy stated, "I have no information on the panel boards." Oleksiak
said, "Okay, Tim," and thanked him. Oleksiak also asked Kelley if he had heard
everything, and Kelley replied in the affirmative.
That morning the pipe and equipment was unloaded and the men returned to
work on the crossunder "T" piece, as McCarthy had promised. Foreman Stolliker
appeared on the turbine floor and told Smith that the two carloads of pipe would
be unloaded in the storage area of the River Rouge powerplant, that any other
material normally handled by pipefitters would be stored indoors to protect it, and
that the men would complete the work which they had stopped the preceding day
on the crossunder "T" piece, but that no work would be performed on the hydro-
gen control piping and the hydrogen coolers. Although the hydrogen control
piping, which was part of the Westinghouse unit, came in straight lengths and was
to be fabricated on the job site, the pipefitters did not resume work on this piping.
9. February 4-United Engineers tries to persuade Edison to modify its purchasing
policy to enable United Engineers to "horse trade" with Respondents
At a meeting held in Edison's office on February 4 and attended by Johnston,
Henry Chance, president of United Engineers, and Walker Cisler, president of
Edison, United Engineers tried to "prevail on the Detroit Edison Company to
modify to a certain extent their purchasing policy" as regards a major item such
as pipe, which historically has been the work of the United Association pipefitters.
Johnston pointed out that in order to get the men to build the plants, United
Engineers had to have agreements with the United Association, like any other
contractor, and had to comply with those agreements. Johnston stated that he
at least wanted to have something to offer the Union in a "horse trade" and be
able to tell the Union not to be "concerned about St. Clair and all of this pipe,
because heretofore all of that piping had been purchased in a UA shop." He
pointed out that "gambling on his knowledge," a UA shop would in all' proba-
bilities again be the low bidder, and asked that Edison "let me have that to trade
with" the Union. Edison did not agree and told Johnston to settle River Rouge.
10. February 25-United Engineers meets with Respondent International in
Washington, D.C.
By prearrangement, Johnston and McCartin held a meeting in Washington, D.C.,
on February 25. Johnston was accompanied by Robert S. Cook, principal con-
struction manager for United Engineers, and McCartin called in Lester Bilg, an
International organizer. Johnston stated that he hoped they could reach a satis-
factory solution of the dispute involving Unit No. 2 at River Rouge and that it
was a serious ,problem because United Engineers "should be erecting the pipe in
order to bring the unit on line according to schedule ." Johnston said that he
wanted McCartin to "give orders to Gene Bradshaw to direct the fitters to erect
the pipe." McCartin replied that Johnston knew that United Engineers was in
violation of its agreement and that McCartin could not grant any exceptions.
Johnston then explained the nature of United Engineers' contract with Edison,
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "we [United Engineers ] do no purchasing . We do no engineering. We are
only engaged as general contractors to take materials and equipment , engineering
information that is furnished to us by Detroit Edison Company, and construct
and build for them a plant so that, in effect , we have no control over this pur-
chasing." McCartin replied that , "regardless ," there was a violation of the agree-
ment, that there was pipe on the job site under 2 inches in diameter which was
not fabricated in accordance with the agreement , and suggested that as a member
of the NCA [National Constructors Association ] United Engineers take the mat-
ter up with the NCA labor committee . Johnston also mentioned that he had been
informed that there was some question about the erection of the Clement panel
boards because of the small size of the pipe that had been installed on the boards,
and explained that the Clement boards were included in the materials and equip-
ment purchased by Edison . McCartin replied that "that's in the same category
as the other pipe," that all pipe under 2 inches is to be fabricated on the job site.
During the course of the meeting , McCartin also stated that Respondent Interna-
tional had a gentlemen 's agreement with Westinghouse but that Westinghouse had
not lived up to that agreement.
11. Events between February 26 and March 8
On February 26 Johnston had a meeting with representatives of Edison at
River Rouge and reported the results of his meeting with McCartin in Washington.
Edison 's representatives stated that they intended to instruct United Engineers to
.proceed with the erection of the Westinghouse pipe , and that in time they would
-release Clement on the delivery of the Clement panel boards and expect United
Engineers to erect them.
On March 1 , Brown , construction manager of United Engineers , telephoned to
Johnston , and advised him of Edison 's decision to proceed with a secondary
boycott charge . Johnston instructed Brown to be in his office on March 4 to
discuss the matter before any steps were taken.
On March 4 , Brown, accompanied by United Engineers ' attorney , came to
Johnston's office in Philadelphia . Johnston testified that at that time "we were
requested to sign the charge, and it was decided in my Company that we would
not sign the charge." It was decided to arrange another meeting with Edison.
Another meeting between representatives of United Engineers and Edison was
accordingly held on March 8. Johnston again tried to persuade Edison to modify
its purchasing policy, and urged Cissler , president of Edison , not to file a charge.
Edison 's representatives stated that Edison "had a purchasing policy"; that "they
did not intend to change it in any way"; that this purchasing policy "would not
be affected by any labor agreements the United Engineers might possess"; and
that, as United Engineers "was unable to have the fitters erect the Westinghouse
pipe, a charge would be filed with the National Labor Relations Board."
After this meeting, Johnston , on the same day, ordered Brown "to proceed and
request the fitters to erect the Westinghouse pipe," and to cooperate with Edison
in the event a charge were filed. Questioned by the General Counsel as to
whether he really wanted the Westinghouse pipe erected , Johnston replied, "cer-
tainly we did" and that was his purpose in so instructing Brown.
12. March 12-General Superintendent Dallam orders foremen and some of their
crew to work on Westinghouse pipe
On March 12, there was a meeting in Brown's office of representatives and
attorneys of United Engineers , Edison, and Westinghouse . United Engineers was
represented at this meeting by Construction Manager Brown , his assistant , Walter
Oleksiak, Dallam, general superintendent over the River Rouge project ,, his assist-
ant, Walter Hulse, and Piping Superintendent Weiss . There was a lengthy dis-
cussion on the problem of getting the Westinghouse piping erected and the steps
to be taken to that end . United Engineers had agreed to order the pipefitters to
erect the Westinghouse pipe. As a result of this discussion , Brown directed Dallam
to order Kelley , general piping foreman, to install the pipe . There was also a
discussion as to the extent to which the order should be taken down to the rank
and file , but the actual method of giving the order was left to Dallam 's discretion.
Dallam asked Bill Kelley to come to his office about 1:30 that afternoon.
Hulse and Weiss were also present during the conversation with Kelley . Dallam
told Kelley , "Bill, I have a problem , I have to get started on the erection of the
Westinghouse piping. I have to do it today. I want you to start with the cross-
under piping that is in the building there, and I want you also to start load cars
with pipe in the field preparatory to having it pushed into the building tomorrow."
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 255
Kelley asked whether a settlement of the dispute had been made. Dallam replied
that he knew no more about a settlement than Kelley did but that it was neces-
sary that the erection of the pipe be started and that he was instructing Kelley
to do it. Kelley said that he "couldn't say at that time whether he would or he
would not do it; that he would have to consult the Hall." Kelley then called
the union hall from Dallam's office and asked for Norman McShane, business
agent of Local 636 and one of McCarthy's assistants. Kelley told Dallam that
McShane was not there but would be back about 2:30; whereupon, Dallam agreed
that Kelley should return at that time and try again.
About 2:45 p.m. Kelley return to Dallam's office where Dallam and Hulse were
present. Kelley called the union hall again and told McShane that Dallam had
instructed him to start the erection of the Westinghouse pipe and asked whether
"he shouldn't talk to Mr. McCarthy." Kelley told Dallam that he was told to
talk to McCarthy who was available at the Park Sheraton Hotel in Washington,
D.C. Kelley then telephoned to McCarthy, also from Dallam's office, and stated
that Dallam had told him to start that day erecting the Westinghouse pipe, to
start with the crossunder piping and to bring the piping from the cars in the field.
Kelley asked what he should do. Upon concluding his telephone conversation,
Kelley told Dallam that McCarthy knew of no settlement and had said that
"nothing should be done until a meeting had been set up between Gene Bradshaw
and United Engineers' personnel in Washington." Kelley also said that "he
wouldn't say he won't erect the pipe," that "they would do it in the near future,"
and that if Dallam wished he "could fire him." Kelley did not comply with
Dallam's orders to start erecting the pipe that day.
Dallam told Kelley that "it was going to be necessary for me to go further;
that I was going to have to talk to his [Kelley's] foremen, and his rank and file
and issue the same orders." Kelley made no objection.
Dallam and his assistant, Hulse, immediately went to Kelley's office where they
found Yard Foreman Morgan and Turbine Room Foreman Stolliker, both under
the supervision of Kelley who was also present. In Kelley's presence, Dallam
told Morgan and Stolliker that "I was going to have to ask them to erect the
Westinghouse pipe, starting with the crossunder that was in the building, and I
wanted the piping in the field loaded on cars so it could be pushed into the turbine
room the following morning." Dallam then first asked Morgan if he would do
it. Morgan replied, "not unless it would first be broken down." Morgan "also
said that if he was instructed by his union, he would install it." At that point,
Kelley stated, "you don't have to give him any reasons. You can just say it will
be done in the near future."
The phrase "broken down" is used in the pipefitting trade to describe the process
of cutting loose or separating the branches and the joints or parts of the pipe
which are already attached to other piping so that one piece might become a
number of smaller pieces, in this case 21/2 inches or less in diameter, and would
then have to be refabricated.
Dallam then repeated to Stolliker the same instructions concerning the erection
of the Westinghouse pipe, and asked Stolliker, "will you do it?" Stolliker shook
his head. Dallam then asked, "if you won't do it, why?" Stolliker did not
answer. Dallam then asked, "is it because it is Westinghouse pipe?" Stolliker
nodded, "yes." Dallam then asked Stolliker if he would do it if he were in-
structed by the Union. Stolliker nodded, "yes." Once again, Kelley stated that
"they need not give any reason. All they needed to do was to answer that they
would do it in the near future."
Neither Morgan, Stolliker, nor Kelley complied with Dallam's detailed instruc-
tions to start work that day on the Westinghouse pipe.
Dallam told Kelley that he was going to talk to a few more of Kelley's men
in the turbine room. Dallam had decided to give the same instructions to some
of the rank-and-file pipefitters and to ask them if they would do the work. When
Dallam and Hulse arrived on the third floor of the turbine room, they met Stol-
liker who introduced Dallam to the three nearest pipefitters in Stolliker's crew
and stated that Dallam was going to ask them some questions. The three pipe-
fitters, R. Evans, E. Evans, and Nicholson, were standing in a very close group,
within elbow reach of each other. Dallam looked at each of the three pipefitters
as he spoke and stated that he wanted them to start working on the Westing'ouse
pipe, repeating in detail the identical instructions he had previously given to the
foremen. Dallam then asked each of the three pipefitters, in turn, "will you do
it?" E. Evans, R. Evans, and Nicholson each, in turn, replied, "No, unless I am
instructed to do so by the union." Stolliker then looked at the men and stated
that Dallam had "asked me that, too." The three pipefitters did not work on the
Westinghouse pipe.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dallam then returned to Brown's office, where the meeting between United
Engineers , Edison, and Westinghouse was still in session , and reported what had
taken place. As a result of some further discussion, Dallam was instructed to
talk to all the pipefitters in the same manner. That evening, a list of all the pipe-
fitters, according to their foremen, was prepared by Hulse.
13. March 13-Dallam tours the plant and polls the pipefitters
On the morning of March 13, Dallam, Hulse, and Kelley toured the entire plant
and visited every gang of pipefitters working in accessible places. Hulse had some
worksheets which contained the names of each foreman and the men working
under them. Dallam spoke to each of about 80 pipefitters, individually, in the
presence of Hulse and Kelley." Dallam had a piece of scrap paper on which he
had written the following three questions, which had been decided upon at the
meeting in Brown's office the preceding day:
(1) We want you to erect the Westinghouse pipe-will you do it?
(2) If not, why?
(3) If the union OK's it will you erect the Westinghouse pipe?
Kelley introduced Dallam to each foreman and told each foreman that Dallam
had questions he wanted to ask his men and to call those nearest over so that
Dallam could speak to them. Dallam credibly testified, without contradiction and
was corroborated by Hulse, that he told each pipefitter "exactly this: `I want you
to erect the Westinghouse pipe. Will you erect it?' " After the pipefitter's re-
sponse, Dallam asked the other questions listed on his paper. He repeated this
procedure about 80 times in the presence and hearing of Kelley and Hulse. All
pipefitters answered the first question in the negative. In response to the second
question, the pipefitters variously stated, in substance, that they would require the
approval of the business agent or of their foreman, or instructions from the Union
or the Local.12 All pipefitters answered the third question in the affirmative. The
pipefitters made their responses in substantially the same words and terminology
because, as Dallam testified , "what ordinarily happens in a case like this, and
what happened at this time, as the word spreads ahead of a trip like ours the boys
know what the answers are, and they stick pretty well to the form." 13
Questioned by the General Counsel as to whether he really wanted the pipe-
fitters to erect the Westinghouse pipe when he made that statement to each of the
approximately 80 pipefitters, Dallam replied, "I most emphatically did and do."
However, none of the pipefitters worked on the Westinghouse pipe which Dallam
had stated he wanted them to erect. The work on the crossunder piping was not
resumed; nor was the pipe in the yard unloaded.
14. March 13-14-Brown requests Local 636 for additional pipefitters to erect
Westinghouse piping
On March 13, after the conclusion of Dallam's tour of the plant, hereinabove
described, Brown telephoned to Norman McShane, business agent of Local 636
u Kelley was not present when Dallam spoke to the first pipefitter.
The reason given by one pipefitter was that it was not according to the agreement.
13 Diy findings as to the responses made by the pipefitters are based upon a report pre-
pared by Hulse under the following circumstances and received in evidence over Respond-
ents ' objections :
Hulse wrote down on his worksheets , opposite the name of each pipefitter , "the gist of
the reply to each of the 3 questions" at the time Dallam asked the questions. At the
conclusion of the tour, Hulse returned to his office and immediately made up a list of the
pipefitters as they appeared on the payroll, with three columns paralleling the list of
pipefitters , each column headed by one of Dallam's questions . Then, with the 'aid of his
worksheets , he put down in each column, opposite the name of the respective pipefitter,
the substance of the respective pipefitter's replies to Dallam's three questions. When this
report was completed , Hulse threw away the worksheets which "was just more or less
scrap paper." Hulse and Dallam identified this report and testified in detail concerning
its source and the manner in which it was prepared. At the hearing , neither Dallam nor
Hulse had any independent recollection of the replies given by the 80 pipefitters; without
reference to this report . The Respondents offered no testimony to dispute the fact that
the statements contained in the report represented :the substance of the pipefitters ' replies'
to Dallam 's questions . Under all the circumstances , I am of the opinion, contrary to the
contentions in Respondents ' brief, that this report is admissible as a past recollection
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 257
and one of McCarthy's assistants. Brown told McShane that "we are away
behind on this No. 2 unit, and the Westinghouse piping must be erected." Mc-
Shane replied that there was a dispute over that piping but that he did not know
much about it. Brown stated that since the men on the job would not erect the
Westinghouse pipe, "I am ordering 12 men and a foreman to report here and
start erection." 14 Although McShane stated that he would make a note of the
request, Brown did not regard McShane's statement to indicate an agreement to
send the men. McShane admitted at the hearing that he did nothing about Brown's
request because he "knew that the UA and 636 was in some trouble with West-
inghouse pipe, and it was lying out in the field," and that that was the real reason
he did not furnish any men. After some equivocation, he also testified that "I
did not have any men to send him anyway."
The next day, March 14, Brown sent a letter to McShane, confirming the tele-
phone conversation of the preceding day and again requesting 12 pipefitters and
a foreman to work on the Westinghouse pipe because "the pipefitters on the job
who are members of your local have refused to do this work."
No men were ever furnished pursuant to this request.
15. March 26-Smith asks Stolliker to have pipefitters remove certain pipes; Stolliker
refuses after consulting Kelley
On March 26, Lester Smith, erector for Westinghouse, asked Foreman Stolliker
if he would remove certain pipes connected to the thrust bearing so that the mill-
wrights could, in turn, remove the covers from the thrust bearing preparatory to
the alignment of the high pressure spindle on Westinghouse Unit No. 2. When
Stolliker remained silent, Smith asked if he wished to talk to General Piping Fore-
man Kelley. Stolliker replied in the affirmative and left the turbine room floor to
confer with Kelley. About one-half later, Stolliker returned and told Smith that
the pipefitters would not remove the pipe.
16. Events in April-Brown's request for additional pipefitters is withdrawn; arrange-
ment to maintain status quo
On April 15, Brown informed Vice President Johnston of the former's verbal
and written request of Local 636 to furnish additional pipefitters to erect the
Westinghouse pipe. Brown also stated that he had been instructed to write a letter
to Respondent International, requesting pipefitters. Johnston told Brown not to
do it, that he did not approve of Brown's letter of March 14 to the local, and
that he wanted the letter of March 14 withdrawn and to make certain that Brown
wrote no further letters. Johnston also stated that he was under considerable
pressure from the National Constructors Association, the United Association, and
the suit the United Association had brought against the United Engineers in Phila-
delphia. The latter statement had reference to a civil suit for breach of contract.
On April 16, Brown wrote a letter to McShane, withdrawing the letter of
March 14.
On April 23, United Engineers entered into an arrangement with United Asso-
ciation to the effect that United Engineers would not press the Union to erect the
pipe in dispute, or the panel boards, until a hearing had been held in Philadelphia
on the civil suit brought by United Association against United Engineers for breach
of contract.15 The following day, Johnston informed Brown of this arrangement
and told Brown not to press Local 636 or the men on the job to erect the West-
inghouse pipe or the Clement boards, nor to request pipefitters at St. Clair, until
the matter was settled in the Philadelphia suit. Brown informed Dallam of this
arrangement, and Dallam, in turn, relayed these instructions to the superintendent
at St. Clair.
recorded, and I regard its content of sufficient probative value to warrant the findings
made in the text. Wigmore On Evidence, 3d ed., p. 64, sec. 734; pp. 78-100, sees.
744-755.
1a The agreement then in effect between United Engineers and Respondents provides
that "initial requests for the furnishing of journeymen and apprentices shall be made to
the Local Union. . " and that the "Union agrees to furnish at all times to the
Employer duly qualified journeymen and apprentices in sufficient number as may be
necessary to properly execute work contracted for by the Employer. . . .
1 This suit was still pending at the time of the hearing in this proceeding.
508889-60-vol. 123-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
17. May 10-McCarthy gives the order to resume work on the Westinghouse pipe
On May 9, during the course of a hearing in the Federal district court on the
Board's petition under Section 10(1) of the Act for a temporary restraining order
against Respondents , Judge Thornton indicated to the parties his intention to grant
the Board 's petition . The next morning , May 10, Martin O'Donoghue , counsel
for Respondents , stated in open court , "may it please the Court , I just want to
begin this session with a happy note , at any rate , that the pipefitters are working
on the pipe that we are litigating . Mr. McCarthy gave the order , and he is also
here as a witness." 16
That same morning, Kelley called Dallam and stated that "they were going to
go back to work ." Kelley also called Smith, informed him that the "pipefitters
would install the Westinghouse pipe," and asked what pipe Smith wanted installed
first. After Smith explained what piping he would like to have them work on and
the order of the work, Kelley "indicated that would be done."
18. May 20-Agreement between Respondent International and United Engineers
By prearrangement , United Engineers and Respondent International held a meet-
ing on May 20, 1957. Respondent International was represented by General
President Schoemann , Assistant General President McCartin , and Attorney O'Don-
oghue; United Engineers was represented by President Chance, Vice President
Johnston , and Attorney Layden . As a result of this meeting , the parties executed
a memorandum of agreement , in which Respondent United Association agreed,
through its Local 636 , to furnish the men necessary to complete the work on Units
2 and 3 at River Rouge including the Clement panel boards and the prefabricated
pipe purchased by Edison from Allis-Chalmers for Unit No . 3; and United Engi-
neers agreed not to request pipefitters from the United Association or any of its
locals for the St. Clair project nor to request any subcontractors on the job to
do so, nor to transfer pipefitters from River Rouge to St . Clair, until United
Engineers could assure United Association that Edison will abide by the terms and
conditions of the agreements between United Enginees and United Association.
The full text of its agreement is set forth below ." The record shows that at all
11 On May 17, 1957 , the United States District Court for the Eastern District of Michigan,
Southern Division , Civil Action No. 16586, entered an Order Granting Temporary Injunc-
tion against Local 636 and its Agents Kelley and McCarthy.
17 UNITED ENGINEERS AGREED :
1. That it intends ( a) to live up to the terms and conditions of the existing col-
lective bargaining agreement between the United Association and the National Con-
structors Association ( hereinafter called "National Constructors ") and (b) to be
bound by the interpretations of that agreement as set out in the stipulation of
Mar. 27, 1957 , and (c ) to the terms and conditions of the agreement to be reached
in the current negotiation between United Association and National Constructors
( all of which hereinafter to be called the "aforesaid agreements").
2. That at the St. Clair project of Detroit Edison , United Engineers will not
request pipefitters from United Association or any of its local unions nor will
United Engineers request any of the subcontractors on the job to do so, nor will
United Engineers transfer any pipefitters from River Rouge to St . Clair , until such
time as United Engineers can assure United Association that Detroit Edison has
agreed that it, as well as United Engineers , will abide by the terms and conditions
of the aforesaid agreements.
3. To advise Detroit Edison in writing of its intention to live up to all of the
terms and conditions of all the aforesaid agreements on any work performed for
Detroit Edison -at any other job site other than at River Rouge units 2 and 3. At
River units 2 and 3 the agreement is covered by para 4 below.
UNITED ASSOCIATION AGREED:
4. That the United Association through its Local No . 636 will furnish the men
necessary to complete the piping work at units 2 and 3 of the River Rouge project
of Detroit Edison including the installation of the present control boards purchased
by Detroit Edison and the prefabricated pipe purchased from Allis Chalmers for
Detroit Edison.
5. In the collective bargaining agreement which is now being negotiated between
the National Constructors Association and the United Association , United Engineers
LOCAL 636 , PLUMBING AND PIPE FITTING INDUSTRY 259
times material herein the employees engaged in the fabrication of pipe at Clement
and Allis-Chalmers have been represented by other labor organizations than the
United Association or its locals.
Thereafter , Johnston explained the terms of this agreement to Brown, and in-
structed him not to call the union hall for pipefitters for Edison 's St. Clair and
Enrico Fermi projects and not to ask any subcontractors to do so. Brown , in turn,
transmitted these instructions to the superintendent at St. Clair and at Monroe, where
the Enrico Fermi project was located.
A copy of the agreement was also transmitted to Edison . As a result of this
agreement , Edison canceled United Engineers ' contract at St. Clair by letter dated
June 11, 1957.
19. Incidents involving DiDuca Brothers
DiDuca Brothers of Port Huron , Michigan , had a contract with Edison for
some temporary plumbing work at St. Clair . Some work had been performed at
St. Clair by DiDuca Brothers as early as April 1956.
In April 1957 , Edison called Mr. DiDuca , president of DiDuca Brothers, about
unloading some feed water heaters which had arrived at St. Clair , and suggested
that DiDuca use six men for the job . At that time , DiDuca had completed his
work at St . Clair and had no men working on the job site . As the unloading of
the heaters was pipefitters ' work and as St. Clair came under the jurisdiction of
Local 636, it was necessary for DiDuca either to obtain pipefitters from Local
636 or to get approval from Local 636 for the use of pipefitters employed else-
where by DiDuca. Accordingly , DiDuca called McCarthy about obtaining these
pipefitters . McCarthy stated that he would not be able to supply the men because
there was a jurisdictional dispute on the job, and told DiDuca not to put any
men on the job until the jurisdictional dispute was straightened out. DiDuca
reported the results of this conversation to Edison.
On April 5 Edison called Brown and stated that, inasmuch as the Union was
refusing to let DiDuca unload the heaters , United Engineers should call the Union
and insist that the Union man the job in accordance with the terms of their
national agreement . At that time there were no pipefitters on the St. Clair job
doing any kind of work. Brown sought Johnston 's advice; Johnston informed
Brown to call Local 636 and tell them to live up to their agreement to man the job.
Brown thereupon called McCarthy and asked him to send some pipefitters to un-
load the heaters . McCarthy refused to send any men until "you get the jurisdic-
tion straightened out." McCarthy mentioned various disputes concerning jurisdiction
of work.
Sometime in May, DiDuca again called McCarthy to find out if they were
going to supply men for the St. Clair job, and asked if "the job was to go ahead."
McCarthy replied that "he couldn 't say anything because the injunction hadn't been
clarified ," and that when it was, McCarthy would call him . In the latter part of
May, Edison asked DiDuca if he could go to work on the job and furnish pipe-
fitters. DiDuca replied that "we couldn 't go on the job" because "we hadn't
gotten any word that we could." McCarthy never called DiDuca, and no pipe-
fitters were supplied for the job.
20. Incidents involving J. W. Partlan Company
On June 21, 1957 , Edison authorized and directed the J . W. Partlan Company
of Detroit , Michigan, herein called Partlan , to proceed with certain plumbing and
miscellaneous piping work at St. Clair . By prearrangement , Myles Scott , Edison's
will be entitled to no better nor any worse terms and conditions than any other
contractor covered by the National agreement of United Association.
UNITED ENGINEERS AND UNITED ASSOCIATION MUTUALLY AGREED :
6. That this agreement is freely and voluntarily made by the parties hereto and
each recognizes the legitimate objectives and problems of the other and mutually
pledge themselves as reasonable men to carry out those objectives and solve those
problems.
7. That this agreement has been made and executed with the intent of carrying out
the terms and conditions of the injunction entered by Judge Thornton and is not
made with any intent to evade or defeat any term or provision of that injunction.
Fully realizing that the agreement of the Union to perform certain work as set forth
herein goes beyond the terms of the injunction , this agreement is made and entered
into with the sincere effort on the part of both parties to amicably settle and adjust
any and all controversies.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
field representative, met Mr. Link, president of Partlan, at the construction office
of the St. Clair powerplant on June 23. Scott asked Link if he could get some
men on the job to move some heaters to the construction area. This was a job
for pipefitters. Link said he would bring five men to the job on Monday morn-
ing, three pipefitters and two plumbers. Scott explained about Edison's difficulty
in getting pipefitters to work on the St. Clair project and about the refusal of the
business manager of Local 636 to furnish pipefitters to DiDuca Brothers for the
St. Clair project. Link replied that he would use his own men and go to Local
636 only if more men were required.
On Monday morning, June 24, Link arrived at St. Clair with two plumbers.
Meanwhile, Alvin McShane, in charge of the outside work for Partlan, who had
been ill the preceding week, first became aware of the work for Edison at St. Clair
when he arrived in the office Monday morning and was informed about it by
Bertoncin, secretary-treasurer for Partlan. McShane told Bertoncin that he had'.
heard that there was a jurisdictional dispute at St. Clair involving plumbers. In.
keeping with Partlan's policy of not doing any work on a job where a jurisdic-
tional dispute was involved, Bertoncin called Link by telephone and reached him:
just as he arrived at the St. Clair job site. Bertoncin told Link that there was a
jurisdictional dispute at the project and not to start the men to work until they
could find out what the dispute was about. Link turned to the two men with him-
and said, "You boys can't go to work."
Later in the day, McShane, Bertoncin and Link met with McCarthy in the
latter's office. McCarthy told them that there were jurisdictional disputes at the
St. Clair projects and mentioned several. McCarthy made it clear that Partlan
should not assign any pipefitter there. As of the close of the hearing in this
proceeding, Partlan had not performed any work at the St. Clair project.
B. Conclusions with respect to conduct constituting a violation of Section 8(b) (4) (A)
1. The status of McCarthy and Kelley
At all times material herein, United Engineers and Respondent International had
a written collective-bargaining agreement under which Respondent International is
recognized as the sole and exclusive bargaining representative for all journeymen
pipefitters and apprentices, and all pipefitting work is to be performed by journey-
men pipefitters and apprentices who are members of the Respondent International,
including foremen. It is apparent from the terms of the agreement and the events
which transpired in connection with the Westinghouse pipe, that the agreement
is administered in the first instance by agents of the Local Union in the territory
where United Engineers is performing the work, in this case Local 636, and in
the second instance by agents of Respondent International. Under the fabrication
clause in effect at all times material herein (section III. A. 5, supra), "it is under-
stood by the Parties of this Agreement," that where pipe of 21/z inches and over
in diameter is fabricated away from the job site, the fabrication must be performed
in the plant of an employer, "employing Journeymen of the United Association at
the prevailing building construction wage rates in effect wherever the employer's
plant may be located." The reservation paragraph of the fabrication clause gives
the "Local Unions of the United Association" the right to refuse to handle, erect
or install prefabricated pipe sent to the job which has not been fabricated in
accordance with the above terms.
At all times material herein, McCarthy, a Respondent herein, was and is busi-
ness manager of Local 636 and, under the terms of the constitution of the Re-
spondent International, was and is an officer of the Local. At all times material
herein, Bill Kelley, a Respondent herein, was and is general piping foreman of
United Engineers and president of Local 636. The following are some of the
relevant provisions of the constitution and bylaws of the Respondent United
Association:
It shall be the duty of every Local Union, District Council, and members of
the United Association to make it generally known to the entire membership
of the United Association, that all piping, pipe fittings, fixtures and equipment
fabricated and processed in a plant, shop or establishment away from the
job site shall be prepared by only members of the United Association and
shall be installed by U.A. members. (Sec. 11(i)).
It is his [the Business Manager's ] solemn duty and obligation to vigilantly
protect the trade jurisdiction of 'the United Association in the plumbing and
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 261
pipefitting industry of his locality; also to compel employers to observe and
respect collective bargaining agreements . . . (Sec. 101).
He [the President of the Local] shall have general supervisory control over
all matters pertaining to the welfare of the Local Union (Sec. 99).
The ritual of the United Association, proscribed by its constitution, requires
each member of a Local Union to take an oath whereby he promises and pledges
that he is familiar with, subscribes to, and agrees to remain loyal and true to, and
to be bound by, the provisions and requirements of the Constitution of the United
Association (p. 132). The constitution further requires each officer of a Local
Union to take an additional oath whereby he further pledges and promises that
he is familiar with the provisions and requirements of the constitution and bylaws
,of the United Association and will, to the best of his ability, perform the duties
,of his office, as laid down in the constitution and bylaws of the United Association
(section 126). The constitution also provides for the removal of an officer of a
local Union "for just cause," upon charges preferred by any member of the United
Association having personal knowledge of the offense (sec. 127), and for the
fining, suspension, or expulsion of any member of the United Association who
breaks his obligation to the United Association or any of its Locals, upon charges
preferred by any member having personal knowledge of the offense (sections 212
.and 213). The general president of the United Association is also empowered
to suspend any Local Union for violations of the laws and Constitution of the
United Association (section 89).
McCarthy's participation in the events previously described,. and his instructions
to Kelley in connection with the installation of the Clement panel boards and the
Westinghouse pipe, as hereinafter detailed, make it clear that he was acting to
implement the rules set forth in the Constitution of the United Association and
his obligations in connection with the administration of the contract beween United
Engineers and United Association. In view of such conduct, the relevant pro-
visions of United Association's Constitution and bylaws hereinabove mentioned,
and the contract between United Association and United Engineers, I find upon
the basis of the entire record that, in dealing with these issues , McCarthy was
acting as an agent, within the meaning of Section 2(13) of the Act, both of his
direct employer, Respondent Local 636, and of Respondent United Association.18
Kelley is the general piping foreman with approximately 18 piping foremen
under his supervision, all required to be members of Local 636. Through these
foremen, Kelley is charged with the detailed supervision of the pipefitters in the
handling and erection of the pipe. It is clear, and I find, that Kelley is a super-
visor within the meaning of the Act.
Kelley's obligations as a member and officer of Local 636 are prescribed in
the constitution and bylaws of the United Association, as previously set forth.
That he acted in furtherance of these obligations in connection with the issue of
the Westinghouse pipe is apparent from the record. Moreover, McCarthy testified
that Kelley takes instructions from McCarthy in matters involving the Local.
Thus, as previously found, early in January 1957, when McCarthy gave his clear-
ance for the installation of the Clement panel boards, Kelley informed Construc-
tion Manager Brown the very next day that McCarthy had been in touch with
him and that "we are all set on the panel boards." When the carloads of West-
inghouse pipe arrived on January 21, Kelley immediately informed McCarthy
about it that evening. On January 22, when Smith, erector for Westinghouse,
asked Kelley why the pipe was not being unloaded, Kelley replied by reading the
reservation paragraph of the fabrication clause in the contract between the United
Association and United Engineers, and informed Smith that the members of the
Local had been discussing prefabricated piping at a previous meeting. It was at
the suggestion of Bradshaw, an organizer and officer of the International, that
Kelley was called into the meeting between McCarthy, Bradshaw, Brown, and
Oleksiak on January 24. At this meeting the position of the United Association
and the Local not to handle the Westinghouse pipe or the Clement boards was
made clear. It was Kelley who arranged the threeway telephone conversation
between McCarthy, Oleksiak, and Kelley on January 30, at which time McCarthy
informed Oleksiak of what work the pipefitters would perform, as outlined by
McCartin to Johnston the preceding day. Kelley then instructed Foreman Stol-
liker to perform the work which McCarthy had indicated in the threeway tele-
Is Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et at.
(Sand Door & Plywood Co.), 113 NLRB 1210, 1213, 1229, enfd. 241 F. 2d 147 (C.A. 9).
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phone conversation that the pipefitters would perform. On March 12, when Brown
told Kelley to start work on the Westinghouse pipe that day, Kelley replied that
he would first have to call the union hall. Kelley then telephoned to McCarthy in
Washington, D.C. and, after relating Brown's instructions , asked what he should
do. When McCarthy told Kelley that there had been no settlement of the issue
involving the Westinghouse pipe and that nothing should be done until a meeting
had been held between United Engineers and United Association in Washington,
Kelley refused to comply with Brown's instructions even if he were to be dis-
charged. When Foremen Stolliker and Morgan refused to comply with Brown's
identical instructions, stated in Kelley's presence, Kelley told Stolliker and Morgan
that they did not have to give any reasons but merely to state that it would be
done in the future. Finally, on May 9, when Attorney O'Donoghue announced
in the Federal district court that McCarthy had given the orders for the pipefitters
to work on the disputed pipe, it was Kelley who called General Superintendent
Dallam that same morning and announced that the "pipefitters would install the
Westinghouse pipe."
The record leaves no doubt that when the responsibilities flowing from Kelley's
relationship to Local 636 and the United Association ran counter to the duty he
owed his employer, United Engineers, to have the pipefitters work on the West-
inghouse pipe, he gave primary importance to his union obligations. It is there-
fore clear, under all the circumstances, that, with regard to the Westinghouse pipe,
Kelley, like Foreman Steinart in the Sand Door case 19 and Foreman Trustworthy
in the Booher Lumber Co. case,20 was acting not as a representative of manage-
ment but as an instrumentality of the Respondents through whom the constitution
and bylaws could be enforced. Upon the entire record considered as a whole, I
find that in dealing with the issue of the installation of the Westinghouse pipe,
Kelley was carrying out union rules, in accord with his union obligations and
upon the instructions of Business Manager McCarthy, and that he was therefore
an agent within the meaning of Section 2(13) of the Act of each of the three
Respondents, United Association, Local 636, and Business Manager Tim McCarthy.
2. Inducement or encouragement by Kelley
As previously found, on March 12, Dallam, general superintendent for United
Engineers over the River Rouge project, told Foremen Morgan and Stolliker, who
were both in Kelley's office at the time, that he wanted them to start erecting the
Westinghouse pipe and detailed the specific work to be done. Each refused. The
implication of Morgan's reason was that the pipe was prefabricated; while Stolliker
indicated that it was because it was Westinghouse pipe. Each indicated that he
would install the pipe, as requested by Dallam, if he were requested to so by the
Union. Kelley, who was present throughout this incident, remained silent until
Morgan and Stolliker indicated that they would erect the pipe if instructed to
do so by the Union. At that point, Kelley told them that "you don't have to give
him any reasons. You can just say it will be done in the near future."
Stolliker worked with a crew of about 12 pipefitters in the turbine room. Mor-
gan worked in the yard, presumably with a crew. Pipefitters are skilled craftsmen.
Stolliker and Morgan were under the supervision of Kelley who, in turn, was
under the supervision of Gene Weiss, piping superintendent. Although Stolliker
and Morgan bore the title of foremen, there is no showing that either possessed
the authority to perform any of the functions required to constitute them as super-
visors within the meaning of Section 2(11) of the Act. Accordingly, I find that
they are not supervisors within the meaning of the Act.
As members of Local 636, Stolliker and Morgan were obligated to be familiar
with, and to be loyal to and bound by, the provisions and requirements of the
constitution of the United Association, including the requirement that piping fabri-
cated in a plant away from the job site "shall be prepared by only members of
the United Association," and the penalty of a fine, suspension, or expulsion for
breaking their obligation. The issue of prefabricated pipe had been discussed at
an earlier union meeting. They knew that Kelley was president of their Local
and also the general piping foreman from whom they normally took instructions.
They also knew that it was a most unusual procedure for such instructions to
be given to them by Dallam, rather than by Kelley. Under the circumstances, Kel-
19 Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL, et al.
(Sand Door & Plywood Co.), 113 NLRB 1210, 1213, enfd. 241 F. 2d 147, 156 (C.A. 9).
20Local 1016, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, et al.
(Booher Lumber Co. Inc.), 117 NLRB 1739.
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 263
ley's failure to confirm Dallam's instructions could not help but indicate to them
that Kelley was not in favor of having the work done. That Kelley was acting
in this respect in his capacity as president of Local 636, was also apparent to
them from his failure to tell them to do the work after they indicated that they
would do it if instructed by the Union. For Kelley represented the Union to
them. Finally, implicit in Kelley's advice that they did not have to give any
reason but need only say that they would do it in the near future, was an affirma-
tive direction not to do the work at that time. Since Kelley's position was con-
trary to that of his superior, it was equally clear that such direction was being
given by Kelley in his union capacity.
On March 13 Kelley accompanied Dallam on a tour of the plant during which
Dallam told approximately 80 pipefitters, individually, that he wanted them to
erect the Westinghouse pipe and asked if they would do it, as previously found.
Each pipefitter replied, in effect, that he would not do the work unless instructed to
do so by the Union or his foreman. To the pipefitters, Kelley stood in the posi-
tion of their foreman and their union. Under these circumstances, and in view
of the unusual situation whereby Dallam, rather than Kelley, was asking them to
do the work, Kelley's silence could not help but indicate that his position was
opposed to that of Dallam's. Since it was obvious that Kelley would not be
defying his superiors in this manner in his capacity as a management representa-
tive, it was equally clear to them that Kelley was acting in his union capacity.
As in the case of the incident of the preceding day, I find that, under all the
circumstances, Kelley's conduct during the polling episode indicated to the men
that Kelley, acting in his union capacity, was unwilling to have them work on the
Westinghouse pipe, and "was certainly no more subtle than `a nod or a wink.' " 21
Respondents' contention in their brief that Dallam's statements did not consti-
tute a request to perform the work because made upon the advice of counsel, is
clearly without merit. The fact remains that Dallam made it clear to the men
that he wanted them to perform the work, and they refused. Moreover, Dallam,
who was a very credible witness, emphatically testified that he did in fact want
the work done and that otherwise he would not have undertaken such a disagree-
able chore. Moreover, he further credibly testified that if he had not been in-
structed by Brown to order the men to do the work at that time, he would have
undertaken to do so of his own accord because "at that time were were considerably
behind our schedule." Nor is there any merit to Respondents' further contention
that there was no inducement to concerted action because in conducting the poll
Dallam spoke to the pipefitters individually rather than as a group. The Board
has held, under similar circumstances, that it would be manifestly unrealistic to
view each incident in isolation but that the total pattern of Respondents' conduct
must be taken into consideration.22 As Dallam testified, "as the word spreads
ahead of a trip like ours the boys know what the answers are, and they stick
pretty well to the form." Viewing the total activities, I am convinced and find
that Kelley's conduct was aimed at inducing all the pipefitters to take the same
kind of action, that is, to refuse to work on the Westinghouse pipe.
Upon the basis of the entire record, and in view of the provisions of United
Association's constitution and bylaws previously set forth, I find that Kelley's
conduct on March 12 and 13, 1957, described above, constituted inducement or
encouragement within the meaning of Section 8(b) (4) (A).
3. Respondents' unlawful objectives
Respondents contend that they had no unlawful objective but that this was
merely a primary dispute with United Engineers arising out of the latter's violation
of the fabrication clause of the contract under which Respondent International and
its affiliated Local Unions were granted the right to perform all fabrication of
pipe on any job undertaken by United Engineers. However, the fact remains that
the target of Respondents' conduct was the use of pipe fabricated by non-UA
members and that United Engineers, as well as Edison, were the innocent victims
of this course. The Westinghouse pipe was fabricated by employees who were
neither members of, nor represented by, any Local of the United Association.
Thus, on the morning of January 22, 1957, McCarthy told Brown that they were
"in serious trouble," that some pipe had just arrived on the job "that we don't like"
' Booher Lumber Co. case, supra, at footnote 9.
22 Direct Transit Lines , Inc., 92 NLRB 1715, 1721 ; United Brotherhood of Carpenters
and Joiners of America, et al. (Wadsworth Building Company ), 81 NLRB 802, 818,
enfd. 184 F. 2d 60 (C.A. 10 ) ; Amalgamated Meat Cutters, etc. v. N.L.R.B., 237 F. 2d
20, 24 (C.A., D.C.).
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because "it wasn't fabricated in a UA shop," and that he had "orders from Wash-
ington not to handle the pipe" for that reason. That afternoon when Smith asked
Kelley why the Westinghouse pipe was not being unloaded, Kelley read the reserva-
tion paragraph of the fabrication clause in the contract to the effect that the
pipefitters could refuse to handle prefabricated pipe which was not fabricated by
members of the United Association receiving the prevailing building construction
rates. Kelley also told Smith that the members had discussed the matter of pre-
fabricated pipe at a previous union meeting. At the meeting of January 24, Inter-
national Organizer Bradshaw, an officer of the United Association according to its
constitution, told Brown that the pipefitters would not erect the Westinghouse pipe
because it "was fabricated in a shop not manned by our people." That Respondents
were not solely concerned with any contract violations as such, is also apparent
from the fact that they would not agree to permit the resumption of work on the
hydrogen control pipe, which had arrived in straight lengths, with all processing
and fabrication still to be done at the job site exactly as set forth in the contract.
Nor had there ever been any prior claims of a contract violation with respect to
the installation of prefabricated pipe at Units 1, 2, 3, and 4 at St. Clair, although
about 9 percent of the prefabricated pipe installed at each of those units was piping
under 21/z inches in diameter, and the piping of larger diameter was in some
instances prefabricated in a non-UA shop.
Furthermore, United Engineers made it perfectly clear to Respondents, to no
avail, that United Engineers itself made no purchases and had no control over
where the pipe was to be purchased by Edison. United Engineers was thus a
neutral party in this respect. It could not resolve the dispute by purchasing pipe
from a United Association shop. It could resolve the dispute only by not handling
or using the Westinghouse pipe purchased by Edison, by prevailing upon Edison
to purchase piping fabricated in a United Association shop, or by ceasing to do
business with Edison. Thus, in this situation, United Engineers in reality occupied
the status of a secondary employer and Westinghouse occupied the status of a
primary employer. And it is clear that at least one of the objects of Respondents'
conduct was to force or require United Engineers to cease handling or using a
product of Westinghouse because that product was not fabricated by employees
represented by a Local of United Association. Although no active dispute existed
between Respondents and Westinghouse, such conduct has nevertheless been held
by the Board and the courts to constitute a secondary boycott of the type proscribed
by Section 8(b) (4) (A) of the Act 23
Moreover, the record establishes the existence of still other objects of the
Respondents' conduct which fall within the interdiction of Section 8(b)(4)(A).
Thus, Bradshaw made it perfectly clear at the meeting of January 24 that the
Westinghouse pipe was a minor issue and that Respondents were really concerned
about Edison's purchasing policy for St. Clair Units Nos. 5 and 6 and the fact
that Edison was seeking bids for the power piping from a contractor which did
not have a contract with United Association and hence was not regarded as a
'fair shop." Bradshaw indicated that the issue concerning the Westinghouse pipe
could be settled if United Engineers would give the Respondents some assurance that
Edison would purchase the piping for the St. Clair units from a "fair shop."
When United Engineers pointed out that it did not and could not control Edison's
,purchases and was therefore in no position to give or obtain such assurances,
Bradshaw replied that that was the situation and that Respondents would not
handle the Westinghouse pipe or the Clement boards until the situation at St. Clair
was cleared up. Any further doubt as to Respondents' objectives in this respect
is completely dispelled by the Memorandum of Agreement of May 21, 1957, in
which United Association agreed through its Local 636 to furnish men necessary
to complete the piping work at River Rouge Units 2 and 3, and United Engineers
.agreed not to request pipefitters for, or to transfer pipefitters to, Edison's St. Clair
project until it could assure United Association that Edison would abide by the
terms of the Agreement requiring prefabricated pipe to be fabricated in a United
Association shop. The inevitable result of United Engineers' failure to obtain
such assurance would be a cessation of business between United Engineers and
Edison.
It is thus clear from the foregoing that a further objective of Respondents'
conduct was to force or require Edison to cease doing business with Westinghouse
23 Washington- Oregon Shingle Weavers' District Council, et at. (Sound Shingle Co.),
101 NLRB 1159, enfd. 211 F. 2d 149, 152 (C.A. 9) ; The Sand Door & Plywood Co. case,
supra; Booher Lumber Co. case, supra; Joliet Contractors Association, 99 NLRB 1391,
1395, 1415, enfd. 202 F. 2d 606, 610 (C.A. 7).
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 265
and with any other person or company which did not have a contract with United
Association. Under Section 8(b)(4)(A), it is not necessary that the employer or
person whom the labor organizations seek to force to cease doing business with
any other person be the employer of the employees who have been induced or
encouraged to engage in a work stoppage for that purpose.24 Moreover, it is also
obvious that an alternative objective of Respondents' conduct was to force or
require United Engineers to cease doing business with Edison, an objective which
was ultimately accomplished when Edison canceled United Engineers' contract for
Units Nos. 5 and 6 at St. Clair because of the May 21 Memorandum of Agree-
ment. Accordingly, I find that additional objects of Respondents' conduct, pro-
scribed by Section 8(b) (4) (A) of the Act, was to force or require Edison to
cease doing business with Westinghouse and with any other person who did not
have a contract with United Association or to force or require United Engineers
to cease doing business with Edison.
4. The contract urged as a defense by Respondents
The Respondents contend that the fabrication clause then in effect, set forth in
full in section III A. 5, supra,25 renders lawful any of Respondents' conduct which
might otherwise be violative of Section 8(b)(4)(A). The Charging Parties and
the General Counsel contend that the fabrication clause was intended by the
contracting parties to apply only to a situation where the United Engineers has
full control over the purchase of the piping and hence was not applicable to the
instant case; that, in any event, the fabrication clause is tantamount to a "hot-
cargo" clause which has been held by the Board to be no defense to conduct
otherwise proscribed by Section 8(b)(4)(A); and that the fabrication clause is
contrary to public policy and void.
While I have grave doubts that the fabrication clause was in fact intended by
the contracting parties to apply to the type of situation present in the instant case,
I find it unnecessary to, and hence do not, resolve this issue in view of my findings
that Respondents' defense is without merit . Respondents contend that a distinction
should be made between the fabrication clause and a "hot-cargo" clause; that the
fabrication clause is a "work jurisdiction" or "job protection" clause and is
analogous to a clause restricting an employer's right to subcontract the work.
I note that article XV of the 1956 agreement with United Association, in effect at
all material times except for the fabrication clause,26 contains a specific clause,
entitled "Subcontractor," in which the "Employer agrees not to sublet or contract
out any work covered herein unless the contractor to whom the work is sublet is
in agreement either with the Union or any of its Local Unions." It is thus
apparent that the fabrication clause was not intended as a restriction on United
Engineers' right to subcontract, as that purpose was already accomplished by
another clause. In any event, the fabrication clause, in my opinion, is tantamount
to a "hot" pipe clause. Any pipe not fabricated by United Association members
is, in effect , declared to be "hot" and the pipefitters reserved the right not to handle
it for that reason. However the clause may be designated, the principles enunciated
by the Board in those cases where a "hot-cargo" clause was involved are equally
applicable here.27 Accordingly, I find that while the Act does not forbid the
21 The Sand Door & Plywood Co. case, supra, 113 NLRB at p. 1214.
2 This clause , which is entitled "Erection," provides in substance that all pipe work
must be performed by journeymen members of the United Association ; that if pipe of
21/ inches and over in diameter is fabricated off the jobsite , it is to be fabricated by an
employer employing journeymen of the United Association ; and that the Local Unions of
the United Association reserve the right to refuse to 'handle fabricated materials sent to
the jobsite that have not been 'fabricated by members of the United Association receiving
the prevailing building construction wage rates in the area.
20 The fabrication clause contained in the 1947 agreement continued to be in effect at
all times material herein.
21 The Sand Door case , supra; General Drivers, Chauffeurs, Warehousemen and Helpers
Union, Local No. 886, et al . ( American Iron and Machine Works ), 115 NLRB 800;
Milk Drivers and Dairy Employees Local Union No. 338 et al . ( Crowley's Milk Company,.
Inc.), 116 NLRB 1408.
Although the American Iron and Machine Works and Crowley's Milk cases have been
reversed by the Courts of Appeals for the District of Columbia and the Second Circuit,
respectively , the Board has not accepted these decisions as final but has petitioned the
Supreme Court for writs of certiorari . Consequently , until the Supreme Court rules to
the contrary , the Board 's decisions in these cases remain binding upon me.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
execution of the fabrication clause in question nor the Respondents ' enforcement
thereof by appeals to United Engineers to honor its contract , Section 8 (b) (4) (A)
does preclude enforcement of this clause by appeals to employees for a proscribed
object . And this is so even though United Engineers finally acquiesced in Re-
spondents ' demands that the employees refuse to handle the prefabricated pipe
in question.28
5. Liability of the named Respondents
As Kelley participated directly in the unlawful conduct, there is no question as
to his responsibility for the violation herein found . As Kelley was also the agent
of Local 636 and the United Association , as previously found, there is likewise no
question as to the liability of Respondents Local 636 and the International for the
unfair labor practices found. I have also found that in inducing or encouraging
the employees of United Engineers not to handle the Westinghouse pipe, Kelley
was also acting as the agent and pursuant to the orders of Business Manager
McCarthy rendered in his capacity as an agent of the Local and the International.
Hence, McCarthy, was also liable for the unlawful conduct in his capacity as an
agent of the two labor organizations.
I find, therefore , that all named Respondents violated Section 8(b)(4)(A) of
the Act by inducing or encouraging the employees of United Engineers to engage
in a concerted refusal in the course of their employment to handle or work on
Westinghouse pipe with the object of forcing or requiring United Engineers to
cease using or handling pipe prefabricated by Westinghouse, forcing or requiring
Edison to cease doing business with Westinghouse or with any other person who
did not have a contract with United Association or its affiliated Locals, or forcing
or requiring United Engineers to cease doing business with Edison.29
C. Conclusions with respect to other alleged violations
The complaint , as amended , further alleges that Respondents also violated the
Act with respect to the employees of DiDuca Brothers, Inc., General Electric
Corporation, Allis-Chalmers Manufacturing Company, Spitzley Plumbing and
Heating Company of Detroit, Babcock & Wilcox, Clement Electric Company and
Crane Company . As there is no evidence in the record to support these allegations,
I will recommend their dismissal.
The complaint , as amended , also alleges a violation with respect to employees
of United Engineers at Edison 's projects at St. Clair and Monroe , Michigan.
The record shows that at all times material herein, there were no pipefitters
employed by United Engineers at these projects. The record does show, as pre-
viously found, that Respondents took the position that they would refuse to furnish
pipefitters for St. Clair and for the Enrico Fermi project at Monroe, even if re-
quested , until United Engineers assured Respondents that the piping for St. Clair
would be fabricated in a "fair shop," that is, in a shop under contract with the
United Association. It is also apparent from the record, as admitted by McCarthy,
that Respondents ' position was the same with respect to any other contractor
employed by Edison on these projects. The record further shows that on March
13, Local 636 refused Brown 's request for 12 pipefitters and a foreman for the
River Rouge Unit No. 2, because of the dispute over the Westinghouse pipe. In
addition , as previously found, Local 636 refused to furnish men to DiDuca
Brothers and to J. W. Partlan Company for work at the St. Clair job site on the
asserted ground that some jurisdictional disputes existed there . It is the theory
of the General Counsel and the Charging Parties that these refusals to furnish
pipefitters for work on Edison's projects , as well as the May 20 Memorandum of
Agreement in which United Engineers agreed not to transfer pipefitters from River
211 find no merit in Respondents ' further contention that Edison and Westinghouse
were not persons wholly unconcerned in the dispute and therefore not entitled to protec-
tion under the philosophy underlying the "ally doctrine ." That doctrine is clearly in-
applicable to the instant situation , as is readily apparent from the decisions in which the
Board has applied it. Irwin-Lyons Lumber Company, 87 NLRB 54; United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, et at. (J. G. Roy and Sons Company),
118 NLRB 286.
2 I find it unnecessary to determine whether any other conduct of Respondents , except
that discussed in the following section, also constituted unlawful inducement and en-
couragement of employees for a proscribed objective because findings of a further vio-
lation, even if made, would not in any event affect the Order which is hereinafter
recommended.
LOCAL 636, PLUMBING AND PIPE FITTING INDUSTRY 267
Rouge to St. Clair nor to ask for pipefitters for the St. Clair or Monroe projects,
constituted a form of strike or unlawful inducement or encouragement of em-
ployees violative of the Act.
Local 636 has jurisdiction over Detroit and the surrounding area. It furnishes
pipefitters, upon request, to contractors performing work in this territory in
accordance with the terms of the national agreement to which such contractors
may be a party. I agree with the position of the Respondents, cogently set forth
in their brief, that no violation can be predicated on Respondents' refusal to fur-
nish or refer pipefitters, because no employment relationship had yet been estab-
lished between the United Engineers and the other contractors, on the one hand,
and the men who were not referred, on the other hand. United Marine Division,
Local 333 (New York Shipping Association), 107 NLRB 686, 709, relied on by the
General Counsel and the Charging Parties, is not apposite to the situation pre-
sented here. That case dealt with the shipping industry where longshoremen
functioned as part of steady gangs or were regular workers at piers and hence were
found by the Board to be employees although all of them would not have been
selected for work each day under the "shape-up" system peculiar to that industry 30
The situation in the present case is controlled by Glazier's Union, Local 27 et al.
(Joliet Contractors Association), 107 NLRB 1391, 1392-1394, where the Board
held that the Union's refusal to furnish glaziers to member-employers of the Joliet
Contractors Association constituted neither a strike nor inducement or encourage-
ment of employees "in the course of their employment." Thus the Board stated,
"men cannot quit before they are hired; they cannot work before they start.. .
We cannot construe "in the course of their employment" to include employment
by several unrelated employers for varying periods, with no continuity or assur-
ance of renewal at any definite period of time." In affirming the Board's findings
in this respect, the Court of Appeals for the Seventh Circuit stated (202 F. 2d 606,
609):
We also agree with the Board that the mere refusal on the part of the
Union to permit its members to work on a job where preglazed sash is used,
or a concerted refusal on the part of the employees to do so, does not come
within the condemnation of the statute. This is so because the plain language
limits the activities to "employees . . . in the course of their employment."
We agree with the view that employees cannot be on a strike or engaged in
a refusal "in the course of their employment" prior to the establishment of
an employer-employee relationship. If Congress had intended to proscribe
the refusal to accept employment, either individually or in concert, it no
doubt would have employed language appropriate to accomplish such purpose.
We suspect that Congress deliberately refrained from so doing in order to
escape a serious constitutional challenge. At any rate, we would doubt the
power of Congress to make the refusal to work an unfair labor practice. So
far as we are aware, people have a right either as individuals or groups to
refuse to work for any reason which they may regard as sufficient or for no
reason. It is only after the employer-employee relationship has been estab-
lished that Congress has prescribed a code of conduct for both employer and
employee in which it has specifically designated that which constitutes an unfair
labor practice on the part of the parties respectively.
I will accordingly recommend the dismissal of the complaint in so far as it
alleges a violation based on Respondents' conduct in refusing to furnish or refer
men to any of Edison's projects.
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 employers set forth 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 commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in conduct violative of Section
8(b) (4) (A) of the Act, I will recommend that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
00 See also Local 1422 , International Longshoremen 's Association, Independent, et at.
( Charleston Stevedoring Company ), 118 NLRB 920.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is apparent from the record that Local 636 and the United Association are
the main source of supply of journeymen pipefitters and apprentices in the area,
over which Local 636 has jurisdiction. It is also apparent from the record that
Respondents' target was the use of pipe fabricated by employees who were not
members of or represented by the United Association or one of its Locals, and that
all persons who used, bought or sold such prefabricated pipe were the intended
victims of Respondents' course. As previously found, Edison has already ordered
the turbine generator for St. Clair Unit No. 6 from Westinghouse; and for the
Enrico Fermi project, from Allis-Chalmers. The employees who fabricate the
pipe for Westinghouse and Allis-Chalmers are represented by Locals which are
not affiliated with United Association. Although Edison has canceled its contract
with United Engineers for St. Clair, any other contractor hired by Edison will
have to look to the United Association and Local 636 for its main source of pipe-
fitters and will presumably be in the same position as United Engineers was with
respect to the use of prefabricated pipe. Under all the circumstances, and in view
of the incidents involving Crane pipe and the Monroe panel boards, Respondents'
refusal to furnish pipefitters for River Rouge, Respondents' announced intention
not to furnish pipefitters to any contractor who did not comply with the fabrica-
tion clause of its contract, including those at Edison's St. Clair and Enrico Fermi
projects, and Respondents' pressures upon United Engineers to get Edison to
purchase its power piping from a "fair shop" (that is, a shop under contract with
United Association or one of its Locals), I am convinced that the record discloses
a danger that Respondents' unlawful conduct may be extended to employees of
other employers than those immediately involved in this case. I therefore find, in
agreement with the General Counsel and the Charging Parties, that it is necessary
in order to effectuate the policies of the Act to recommend a cease and desist
provision sufficiently broad to meet this situation.
The Charging Parties also contend that the Recommended Order should contain
a provision requiring United Association and Local 636 to honor all requests for
pipefitters which may be made by any employer under contract with them, and
that the United Association and Local 636 should be ordered to instruct all its
members and all employees represented by them, who are employed on Edison's
construction projects, that they are not to strike or otherwise engage in a con-
certed refusal to perform services in the course of their employment for a pro-
scribed object. Like the Respondents, I have grave doubts as to the power of the
Board to issue such an order.31 In any event, I am of the opinion that the Order
herein recommended is adequate to effectuate the policies of the Act.
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. Local No. 636 of the United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-
CIO, and United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of the Act.
2. The above-named labor organizations and their agents, including Tim Mc-
Carthy and William B. Kelley, have engaged in unfair labor practices within the
meaning of Section 8(b)(4)(A) of the Act by inducing or encouraging the
employees of United Engineers and Constructors, Inc., to engage in a concerted
refusal in the course of their employment to handle or work on Westinghouse
pipe with the object of forcing or requiring United Engineers to cease using or
handling pipe prefabricated by Westinghouse Electric Corporation, forcing or re-
quiring The Detroit Edison Company to cease doing business with Westinghouse
or with any other person who did not have a contract with the United Association
or its affiliated Locals, or forcing or requiring United Engineers to cease doing
business with Edison.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
sl Joliet Contractors Association case, supra . See also international Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America et at. (Clark Bros. Transfer
Company), 116 NLRB 1891, 1893, 1913, where the Board reversed the Trial Examiner's
Recommended Order, directing the Union to request its members and other employees
represented by it to cease refusing to handle the freight of certain employers.
MAX SILVER & SON 269
4. The Respondents have not engaged in unfair labor practices with respect
:to the employees of DiDuca Brothers, Inc., General Electric Corporation, Allis-
Chalmers Manufacturing Company, Spitzley Plumbing and Heating Company of
Detroit, Babcock and Wilcox , Clement Electric Company, and Crane Company,
nor by refusing to furnish or refer pipefitters for work on any of Edison 's projects.
[Recommendations omitted from publication.]
Max Silver, Irwin Silver and Edward Braude , Co-Partners,
d/b/a Max Silver & Son and International Ladies' Garment
Workers' Union , AFL-CIO. Case No. 4-CA-1719. March 16,
1959
DECISION AND ORDER
On December 24, 1958, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and -,vere engaging in certain un-
fair labor practices, and recommending that they cease and desist
therefrom and take certain affirmative action, and further finding
that the Respondents had not engaged in other unfair labor practices,
as alleged in the complaint, and recommending that the complaint
be dismissed insofar as it alleged such violations, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Respondents, the General Counsel, and the Charging Party filed
exceptions to the Intermediate Report, together with supporting
briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman Lee-
dom and Members Bean and Fanning]. .
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the -case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Max Silver, Irwin Silver and
Edward Braude, d/b/a Max Silver & Son, Philadelphia, Pennsyl-
vania, their agents, successors, and assigns shall:
:' The Trial Examiner 's recommended order is modified in certain respects , to remedy
all of the specific violations found. As the extent of such violations does not warrant
the broad order recommended by the Trial Examiner , we have adopted a narrow order.
123 NLRB No. 33.