Plumbing & Pipefitting, Local 389

National Labor Relations Board - Board Decisions

Jun 4, 1969

176 N.L.R.B. 402 (N.L.R.B. 1969)

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada , AFL-CIO, Local 389
(Morris Plumbing Company, Inc.) (Paul Scheurer
Engineering Company, Inc.) and D. L. Eastridge.
Cases 16-CB-406 and 16-CB-422
June 4, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULI.OCH AND MEMBERS
BROWN 'AND ZAGORIA
On April 3, 1969, Trial Examiner William F.
Scharnikow issued his Decision in the above -entitled
proceedings , finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 Trial
Examiner ' s Decision , the exceptions and brief, and
the entire record in this case , and hereby adopts the
findings , conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order, the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
1968, and in Case 16-CB-422 on September 10, 1968, the
Regional Director for Region 16 issued an order
consolidating the two cases and a consolidated complaint
against the Respondent Union on October 31 , 1968. The
consolidated complaint alleges , but the Respondent Union
in its answer denies , that the Respondent Union
committed unfair labor practices affecting commerce
within the meaning of Section 8 (bx1XA) and (2) and
Section 2(6) and (7) of the National Labor Relations Act,
as amended , 29 U.S.C. Sec. 151, et seq ., herein called the
Act, by refusing to give Eastridge clearances for
employment and thereby causing or attempting to cause
employers Morris Plumbing Company, Inc. and Paul
Scheurer Engineering Company, Inc. (herein called
respectively the Morris Company and the Scheurer
Company) to discriminate against Eastridge in violation of
Section 8(a)(3) of the Act, that is ; ( 1) by causing Morris
Company to refuse to hire Eastridge on or about June 12,
1968 (as charged in Case l6-CB-406); and (2) by
thereafter causing Scheurer Company (in further violation
of an intervening Settlement Agreement executed by the
Respondent in the first case on July 22, 1968 ) to discharge
Eastridge on or ,,bout September 9, 1968, and to refuse to
rehire him (as ch ged in Case 16-CB-422).
As amended on November 8, 1968, the consolidated
complaint also alleges, but the Respondent Union in its
answer to the amendment denies , that the Respondent
Union refused Eastridge a clearance for employment by
Scheurer Company on September 9, 1968 because he had
filed the unfair labor practice charge in Case 16-CB-406,
and for this reason its refusal of clearance constituted a
restraint and coercion of the employees of the Scheurer
Company in the exercise of rights guaranteed by Section 7
of the Act and an unfair labor practice within the meaning
of Section 8(b)(l)(A) of the Act.
Pursuant to notice , a hearing was held at Wichita Falls,
Texas, on January 21 and 22, 1969 before me, the Trial
Examiner duly designated by the Chief Trial Examiner.
The General Counsel and the Respondent Union appeared
by counsel and were afforded full opportunity to examine
and cross-examine witnesses, and to introduce evidence
bearing upon the issues. Since the close of the hearing, I
have received and considered briefs from the General
Counsel and counsel for the Respondent Union.
Upon the entire record in the case , and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THE EMPLOYERS
'In adopting the Trial Examiner 's recommendation that the complaint be
dismissed in its entirety , we have considered the presettlement conduct
underlying the allegations in Case 16-CB-406. but, nevertheless , conclude
that, even against this background , the record fails to establish that
Respondent in Case 16-CB-422 was motivated by any considerations other
than the enforcement of a lawful hiring arrangement. See, e.g.. Northern
Calfornia Dbtrkt Council of Hod Carriers and Common Laborers of
America, AFL-CIO (Joseph 's Landscaping Servke), 154 NLRB 1384, fn.
1.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: Upon
charges filed by D.L. Eastridge , an individual , against the
Respondent Union in Case No. 16-CB-406 on June 13,
Morris Plumbing Company, Inc., herein referred to as
the Morris Company , is a Texas corporation with its
principal office and place of business in Wichita Falls,
Texas , and is engaged in the sale and installation of
plumbing fixtures . During the year preceding the issuance
of the complaint , the Morris Company , in the conduct of
its business operations , purchased goods of a value in
excess of $50,000 from points outside the State of Texas
and during the same period of time also sold and installed
plumbing fixtures outside the State of Texas of a value
also in excess of $50,000.
Paul Scheurer Engineering Company, Inc., herein
called the Scheurer Company, is also a Texas corporation
with its principal office and place of business in Wichita
Falls, Texas and is engaged in the manufacture and sale
of custom sheet metal and air-conditioning equipment and
176 NLRB No. 50
PLUMBING & PIPEFITTING, LOCAL 389
related products. During the conduct of its business
operations in the year preceding the issuance of the
complaint, it purchased and received in Wichita Falls,
Texas, goods of a value in excess of $50,000 directly from
States of the United States other than the State of Texas.
During the same year, it sold and delivered products of a
value in excess of $50,000 and shipped them to points in
the United States outside the State of Texas.
I find that the Morris Company and Scheurer
Company are employers engaged in businesses affecting
commerce within the meaning of the Act and that it will
effectuate the policies of the Act for the Board to
entertain jurisdiction in the present case.
11. THE RESPONDENT LABOR ORGANIZATION
The Respondent, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO,
Local 389 (hereinafter referred to as the Union), is a labor
organization within the meaning of the Act).
III. THE ALLEGED UNFAIR LABOR-PACTICES
A. The Relevant Facts`
At all material times, the Morris Company and the
Scheurer Company have been parties to contracts with the
Union' covering their plumbers, steamfitters, refrigeration
fitters, and welders, and containing continuing identical
provisions making the Union "the sole and exclusive
source of referrals of applicants for employment." In
accordance with the substance of these provisions so far as
they are material in the present cases , the Union was to
maintain a register or "out of work list" of available
"applicants for employment," whether Union members or
not, in the order of the applicants' registration of their
availability; the Union, upon an employer's request, was
to refer "applicants" to the employer in this order and
without discrimination; and the employer was "free to
secure applicants without using the referral procedure"
only if the "registration list" was exhausted or the Union
was unable to refer applicants within 48 hours after
receiving the employer's request . There is no dispute in
the present cases , and I accordingly find, that these
contractual provisions were, and are, valid,
nondiscriminatory exclusive hiring hall provisions binding
upon the parties to the contracts.
On June 13, 1968, D. L. Eastridge, a welder and not a
member of the Union, filed a charge with the Board's
Regional Director in Case l6-CB-406, alleging that the
Union had committed an unfair labor practice within the
meaning of Sections 8(b)(1a) and (2) of the Act in that
"since on or about June 6, 1968 . . . [the Union] caused
or attempted to cause Morris Plumbing , an employer, to
refuse to hire D. L. Eastridge, an individual, in violation
of Section 8(a)(3) of the Act and [has] refused and
continues to refuse to place said individual on its hiring
list." But the Regional Director did not thereupon issue a
complaint. For the Union (on July 22, 1968) and
Eastridge, the charging party (on July 24, 1968) executed
a "Settlement Agreement," which the Regional Director
'The Morris Company, as a member of the Associated Plumbing
Contractors of Wichita Falls, Texas, was bound by such contracts executed
by its Association and the Union . The Scheurer Company, although not a
member of the Association, had accepted and executed identical contracts
with the Union
403
approved on July 25, 1968.
Under the terms of this agreement the Union was to
pay Eastridge the sum of $139.20, and to execute and
thereafter to comply with the provisions of a "Notice" to
be posted on the business premises of the Morris
Company, in which the Union stated that it would not
cause or attempt to cause the Morris Company to
discriminate against employees in violation of Section
8(a)(3) of the Act, nor in any like or related manner
restrain or coerce employees of the Morris Company or
any other employer in the exercise of their Section 7
rights. Affirmatively, the Notice also stated that the
Union would pay the agreed sum of money to Eastridge
and would "notify Morris Plumbing Company that we
have no objection to its employment of D. L. Eastridge in
the operation of its business." Finally, the Settlement
Agreement provided that "Contingent upon compliance
with the terms and provisions hereof, no further action
shall be taken in the above case."
The Union took immediate steps to comply with the
Settlement Agreement. It paid Eastridge the sum agreed
upon and on July 22, 1968, the day it executed the
Settlement Agreement, Joe L. Burton, its business agent,
also signed the prescribed notice which was thereupon
posted by the Morris Company. On July 12, 1968, and
thus even before the execution of the Settlement
Agreement, Eastridge had asked to sign and had signed,
the Union's out-of-work list" for the first time= and
Business Agent Burton had then given him a referral to
the Morris Company which Eastridge had thereupon
presented to that company. As a result, Eastridge had
already begun working for the Morris Company on July
15, 1968.
A period of calm followed these events. Eastridge
worked as a welder for the Morris Company from July 15
until the end of August 1968. Then, J. Arlie Chadwick,
Morris' general superintendent told Eastridge that with
the Morris Company's current jobs nearing completion,
"things were slow" and Eastridge was to be "lent" to the
Scheurer Company. Such an arrangement was in fact
made in conversations which President Frank Morris of
the Morris Company had with both President Paul
Scheurer and Vice president Louis Byrd of the Scheurer
Company. According to Paul Scheurer, he simply hired
Eastridge after his conversation with Morris. But,
consistent with Morris' remark to Eastridge, Byrd testified
(and I credit his testimony) that the Scheurer Company
hired Eastridge on September 4, 1968, as a result of
Frank Morris' telling Byrd that Eastridge was a good
welder, that Morris would like to see Eastridge stay in the
community, and that he would appreciate it if the
Scheurer Company would employ Eastridge "on a
temporary basis" when the Morris Company ran out of
work.
As a result, Eastridge was hired by the Scheurer
Company and began work on a job for Scheurer at the
Midwestern University on Thursday, September 5. The
Scheurer Company had not made a request of the Union
for a referral and Eastridge did not register on the
Union's out-of-work list before taking the Scheurer
Company job. Eastridge had, however, filled out and
originally submitted to the Union on June 6, an
application for Union membership upon which the
Union's Executive Board had taken no final action
pending an investigation by Business Agent Burton of the
'Eastridge had previously filled out and originally submitted to the
Union on June 6, only an application for Union membership.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements made in the application.'
Eastridge worked without incident for the Scheurer
Company on the Midwestern University job on Thursday
and Friday, September 5 and 6. On Saturday, September
7, Jack Whitt, a member of the Union and plumber
foreman for Palco, another contractor on the University
job, telephoned Business Agent Burton and asked whether
the Union had referred Eastridge to Scheurer. Burton said
that there had been no referral . On the same day, D. H.
Muterspaugh , a union member employed by the Scheurer
Company on the University job, also telephoned Burton
about another matter . In their conversation, Burton asked
Muterspaugh about Eastridge, the new welder on the job.
Muterspaugh testified , as a witness for the General
Counsel, that he told Burton he thought Eastridge was
"Okay"; that Burton then said "the man might be okay in
some respects but that he wasn't okay in all respects";
that Muterspaugh asked Burton what Burton meant; and
that to the extent ' Muterspaugh recalled Burton ' s answer,
Burton replied that , "for some reason the man had
brought suit against our Local."' But although Burton
might thus have made somb ' reference to the earlier unfair
labor practice charge which Eastridge had filed against the
Union , I credit Burton's testimony and find that he also
told Muterspaugh that "whoever it was on the jobsite was
there wrongfully and that the referral system had been
violated and we would have to seek an adjustment."
At about 8 o'clock on Monday morning , September 9,
Business Agent Burton went to the Midwestern University
jobsite . His appearance and his conversations at that time
with Eastridge , President Paul Scheurer and Vice
president Byrd of the Scheurer Company in the presence
of the few Union-member employees of the Scheurer
Company and Palco who were about to go to work,
resulted in Scheurer ' s discharge of Eastridge and
constitute the basis of Eastridge ' s second unfair labor
practice charges against the Union which were filed a few
days later in Case l6-CB-422.
Upon considering and collecting the details of the
testimony given by the various witnesses (Eastridge,
Burton, Scheurer , and Foreman Ingram ), there appears to
be actually no dispute as to the material substance of
these conversations at the University jobsite on September
9 and Scheurer' s immediate discharge of Eastridge.'
Eastridge and several of Scheurer' s and Palco's men, all
of whom were Union members , were standing around on
the jobsite when Burton got there . Paul Scheurer and
Byrd , having been called by their foreman , arrived shortly
thereafter. Scheurer asked Burton what the problem was
and Burton replied that Scheurer had broken their
contract by hiring Eastridge without a Union referral
under the hiring hall provision . Scheurer said they had
borrowed Eastridge from the Morris Company and
urton testified, but Eastridge denied , that on June 12, Eastridge
informed him that he was withdrawing his membership application. In the
circumstances shown by the evidence , this conflict in their testimony as to
whether Eastridge's membership application was still pending, is
immaterial and the conflict is therefore , not resolved. For, under the valid
hiring ball provisions of the contract , neither Eastridge's application for
Union membership nor even his acquisition of membership would have
entitled him to a "referral ," and, as I have found, when he did sign the
"out-of-work" list as required by the hiring hall provisions , the Union,
both in compliance with its contract obligations and in anticipation of its
undertaking in the Settlement Agreement , had immediately issued him a
referral to the Morris Company and he had gone to work for that
company without Union interference
'With respect to this portion of Burton 's reply, Muterspaugh testified
that , "this is the only thing that stays with me "
Burton pointed out that Eastridge had been referred to the
Morris Company and not to Scheurer, and could not be
simply "transferred" to Scheurer. To Scheurer's question
whether the Union would nevertheless "permit" Eastridge
to work for Scheurer, Burton answered that Scheurer
could ask for a referral and Eastridge could make an
"application," but that Burton could not immediately
refer Eastridge without first checking his "out-of-work"
list. Scheurer then asked how long it would take for
Eastridge to get either a referral or a membership "card,"
apparently assuming incorrectly that membership would
satisfy the hiring hall referral requirement . Eastridge
interrupted with the statement that he had already applied
for a "bard." Whereupon one of the Union employees in
the group asked, "What would you do on an application if
someone had filed a suit against you?" Answering
Scheurer's question concerning an application for Union
membership, but without withdrawing his insistence that
the "referral" provisions of the contract be complied with,
Burton said it would take several weeks to process
Eastridge's application for membership and that the
Union's Executive Board would have to pass upon the
application. Scheurer asked Burton what it would take to
get the men bapk, to work, and Burton replied that he
didn't think the,pen would work with Eastridge. Finally,
Scheurer turned to Eastridge and told him "it looked like
he was going to be discharged [and that he should] come
in and get his pay check."
Shortly after Scheurer discharged Eastridge - perhaps
later in the day - the Union's attorney telephoned to
Paul Scheurer. According to Scheurer, the attorney told
him "that he was employed by the Union and ... it looks
like we've got troubles down here, we have and you have .
He asked me as to whether or not we could hire
[Eastridge] back and I told him no, that I couldn't afford
him. I couldn't stand any more trouble on the job ...."
On the same day, Business Agent Burton also called
Scheurer and told Scheurer "that upon the advice of [his]
attorney [Burton] was willing to refer Mr. Eastridge to the
Paul Scheurer Engineering Company" but Scheurer said,
"that he didn 't want him."
On September 11, 1968, 2 days after his discharge by
the Scheurer Company, Eastridge went to the Union hall
and signed the "out-of-work list." Since then, the Union
has given Eastridge several job referrals - the first of
which was mailed to him and received by him on
September 14, 1968.
B. Conclusions
In the present proceeding, the Union is accused of
withholding clearances or referrals for Eastridge's
employment first by the Morris Company on and after
June 6, 1968 (as charged in Case 16-CB-406) and then by
the Scheurer Company on September 9, 1968 (as charged
in Case 16-CB-422). As a result, according to the
consolidated complaint, the Union thereby caused the
Morris Company to refuse to hire Eastridge, and the
Scheurer Company to discharge him, and in both
'
At the beginning of his testimony concerning the September 9th
conversations , Eastridge stressed remarks which he said were made by
Burton as to the men's unwillingness to work with him, and, by this stress,
seemingly implied that it was solely because of this unexplained pressure
that Paul Scheurer then discharged him But he then added that there was
also a discussion of Burton's objection to his lack of a "referral" to the
Scheurer Company, which as the other witnesses more fully and
consistently testified (and I therefore find in the text), actually resulted in
Scheurer's decision to discharge Eastridge.
PLUMBING & PIPEFITTING, LOCAL 389 405
instances committed unfair labor practices within the
meaning of Sections 8 (b)(I)(A) and (2) of the Act.
But there are two factors which in combination
eliminate the possibility of reaching any such unfair labor
practice conclusions in the present cases. The first is the
evidence which appears to justify the Union's failure or
refusal to give Eastridge a job referral under the valid
hiring and referral provisions of its contracts with the two
employers. The second factor is the settlement by the
parties of the original unfair labor practices charges with
the Regional Director's approval on July 25, 1968, in
Case 16-CB-406 which, under the decisions, bars both the
revival of these charges and the consideration of any
evidence that might have supported them as material
background to the charges in Case 16-CB-422, unless it
has also been shown that the Union has not complied with
the terms of the settlement agreement or has committed
similar postsettlement unfair labor practices as are
charged in Case 16-CB-422.1 Upon this analysis, therefore,
the first question to be decided is whether, as alleged in
the charges in Case 16-CB-422, the Union committed, an
unfair labor practice within the meaning of Section
8(b)(1)(A) or (2) of the Act by causing the Scheurer
Company to discharge Eastridge on September 9, 1968.
For, only if these later charges were, ktistained by the
evidence, would the Board be justified ih ;considering the
evidence and possibly making a finding of unfair labor
practice in Case 16-CB-406.
With respect to Scheurer's discharge of Eastridge, it is
clear from my foregoing findings upon the evidence, that
the Union acting through Business Agent Burton on
September 9, 1968, did no more than object to Scheurer's
hire and continuing employment of Eastridge without first
having complied with the requirements of the valid,
nondiscriminatory, hiring and referral provisions of
Scheurer's contract with the Union. For, as Burton
pointed out to Paul Scheurer, the Scheurer Company had
not requested referral of a job applicant from the Union
nor had Eastridge signed the Union's "out-of-work list."
Nor did it even appear that if Eastridge were then to be
regarded as making an application for referral, he would
be first on the "list" and entitled to the referral.
Accordingly, Burton was fully justified in insisting upon
Scheurer's compliance with the valid terms of its contract
with the Union and he did not thereby cause or attempt to
cause Scheurer to discriminate against Eastridge in
violation of Section 8(a) (3) of the Act, as alleged in the
complaint. Furthermore, despite the bystanding Union
employee's expression of antagonism to Eastridge as an
applicant for Union membership because of his earlier
unfair labor practice charges against the Union, it does
not appear that this influenced Burton in his taking the
position, as he did, that Eastridge had been hired and was
being employed by Scheurer in breach of the referral
'Wallace Corporation v. N.L.R.B., 323 U.S. 248, 253-255; N L.R.B. v.
Superior Tool ilk Die Co ., 309 F . 2d 692 (C.A. 6); Lincoln Bearing Co. v.
N.L R.B., 311 F.2d 48 (C.A. 6); N.L.R.B. v. Garment Workers,
I L G. W. U. (Susan Evans , Inc.), 342 F .2d 988 (C.A. 2).
provisions of the contract. For these reasons , I conclude,
contrary to the allegations of the consolidated complaint
based upon the charges in Case 16-CB-422, that the
Union did not cause or attempt to cause the Scheurer
Company to discharge and refuse to rehire Eastridge
either in violation of Section 8(a)(3) of the Act or because
of Eastridge's earlier unfair labor practice charges against
the Union, and I further conclude therefore that with
respect to Eastridge's employment by Scheurer, the Union
did not commit unfair labor practices within the meaning
of Section 8(b)(1)(A) or (2) of the Act.
In view of this recommendation of a dismissal of the
allegations of the consolidated complaint in Case
16-CB-422, I find no basis for holding that the Union
committed any such unfair labor practices as would
warrant the revival of the previously settled charges in
Case 16-CB-406 relating to Eastridge's employment by the
Morris Company. I will therefore recommend that the
remaining allegations of the consolidated complaint based
upon the charges in Case 16-CB-406 should also be
dismissed and that the settlement agreement approved by
the Regional Director in that case on July 25, 1968,
should be reinstated. Furthermore, upon consideration of
the evidence produced by the General Counsel in the
present proceedings to support the unfair labor practice
charge in Case 16-CB-406, I find nothing in the way of
material background which would affect my basic findings
and conclusions that the charges and complaint in Case
16-CB-422 should be dismissed. For, without setting it
forth at length, it appears from this evidence that
Eastridge, even when seeking a job with the Morris
Company in June 1968 did not sign the Union's
"out-of-work list" and thus comply with the contractual
provisions entitling him to a referral to the Morris
Company, but that he merely filled out an application for
Union membership apparently in the mistaken belief that
this would be sufficient.
In summary, I have concluded upon the foregoing
findings and considerations, that.
(1) The settlement agreement in Case 16-CB-406 bars
any finding in the present proceedings that, as alleged in
the consolidated complaint, the Union refused Eastridge a
referral for employment by the Morris Company and
thereby committed an unfair labor practice within the
meaning of Section 8(b)(1)(A) or (2) of the Act; and
(2) That the evidence does not support a finding in
Case 16-CB-422, as also alleged in the consolidated
complaint, that the Union refused Eastridge a referral for
employment by the Scheurer Company and caused
Eastridge's discharge in violation of Section 8(b)(1)(A) or
(2) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, the
entire record in the cases, and the conclusions and reasons
set forth in this Decision , it is recommended that the
Board: (1) Dismiss the consolidated complaint in its
entirety; and (2 ) Reinstate the Settlement Agreement
executed by D. L. Eastridge and the Union, and approved
by the Regional Director on July 25, 1968, in Case
16-CB-406.