United Association of Journeymen, Etc.

National Labor Relations Board - Board Decisions

May 25, 1956

115 N.L.R.B. 1411 (N.L.R.B. 1956)

UNITED ASSOCIATION OF JOURNEYMEN, ETC. 1411
charges regarding Barenboim's connection with IAM. Although it
denied any connection with Barenboim in its campaign literature,. the
IAM, itself, has not joined in the Employer's objections or submitted
any statement to the Board or the Regional Director on this point.
Moreover, even if we assume the falsity of Petitioner's charges, and
that Barenboim's connection with IAM was of vital concern to the
voters, we cannot equate the effect of such charge upon the voters with
that of the misrepresentation in Gummed Products. There the peti-
tioner misrepresented a matter of which it necessarily had first-hand
knowledge, namely, the wage rates in a contract negotiated by it. Here,
the employees were free to weigh the charge of the Petitioner, which
did not purport to be based on first-hand knowledge, against the sub-
sequent public repudiation of Barenboim by the IAM. Accordingly,
we believe that, unlike the situation in Gummed Products, the Peti-
tioner's charge did not unduly impair the employees' freedom of choice,
but was merely permissible campaign propaganda.
In view of all the foregoing considerations, we deny the Employer's
request for a hearing and find no merit in its exceptions to the Regional
Director's ruling on its objections.
As the tally of ballots shows that the Petitioner received a majority
of the valid ballots cast, we shall certify it as the collective-bargaining
representative of the employees in the appropriate unit.
[The Board certified Mason Can Employees Independent Union as
the designated collective-bargaining representative in the unit here-
tofore found appropriate.]
MEMBER RODGERS took no part in the consideration of the above Sup-
plemental Decision and Certification of Representatives.
United Association of Journeymen & Apprentices of the Plumb-
ing & Pipe Fitting Industry of the U. S. & Canada, Local No.
533, AFL-CIO and Kansas City Power & Light Company. Case
No. 17-CD-924. May 25, 1956
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which
provides that "Whenever it is charged that any person has engaged
in an unfair labor practice within the meaning of paragraph (4)
(D) of Section 8 (b), the Board is empowered and directed to hear
and determine the dispute out of which such unfair labor practice
shall have arisen....
On November 18, 1955, Kansas City Power & Light Company,
herein called the Company, filed with the Regional Director for the
115-NLRB No. 223.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seventeenth Region a charge, amended on December 14, 1955, alleg-
ing that United Association of Journeymen & Apprentices of the
Plumbing & Pipe Fitting Industry of the U. S. & Canada, Local No.
533, AFL-CIO, herein called Plumbers or Respondent, had engaged in
and was engaging in certain activities proscribed by Section 8 (b)
(4) (D) of the amended Act. It was charged, in substance, that
Plumbers induced and encouraged employees of the Company to
engage in a strike or a concerted refusal to work in the course of their
employment with an object of forcing the Company to assign particu-
lar work to members of the Plumbers rather than to its employees.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the Regional
Director investigated the charge and provided for an appropriate
hearing upon due notice served on all the parties on December 15,
1955. The hearing was held before Harry Irwig, hearing officer,
on January 6 and 26, 1956. Both parties appeared at the hearing
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing on the issues. The
rulings of the hearing officer made at the hearing are free from preju-
dicial error and are hereby affirmed. The Company filed a brief with
the Board.
On January 6, 1956, shortly before the hearing came to order, a
letter was given to the Regional Director by the Respondent Plumb-
ers. A copy of the letter is attached to this Decision and Determination
as an appendix. On the basis of this letter, at the opening of the
hearing the Respondent moved that the notice of hearing be quashed.
This motion was renewed at the conclusion of the hearing. The hear-
ing officer referred these motions to the Board for ruling. They are
hereby denied for reasons hereinafter stated.
Upon the entire record in the case, the Board finds :
1. The Company is engaged in commerce within the meaning of the
Act.
2. Plumbers Local No. 533 is a labor organization within the mean-
ing of the Act.
3. The dispute :
The Facts
The Company was engaged in the installation and tying in of a
steam pipe between the Company's lines and the municipal garage.
This job started on November 3, 1955, and the Company expected to,
finish it by November 30, 1955, in time for the official opening of the
garage by the city on December 5. The Company employed its own.
employees on the job. They have been represented by International
Brotherhood of Electrical Workers, Local 1464, since the IBEW was
certified by the Board, as the result of an election , on May 17, 1949.
UNITED ASSOCIATION OF JOURNEYMEN, ETC. 1413
About 1 week prior to November 18, 1955, Devine, a representative
of Local 533, told Hurst, the Company's labor foreman on the job,
that he would like to get the work being done by the Company's
employees for members of his organization. Hurst suggested that
he see Hawley, the Company's superintendent of the underground
department. On November 16, 1955, Devine called Hawley, saying
that he had been referred by Hurst. Devine told Hawley that the
work belonged to his local and suggested that the Company contract
the work to a contractor who would employ members of Local 533.
Hawley explained that the Company's contract with the IBEW Local
1464 provided that the Company would not contract out any work
done by its regular employees if it would result in a layoff of any
of these employees. -Devine then suggested that the Company deal
directly with Local 533 and hire 3 or 4 of its members. Hawley re-
fused to do that. Devine suggested that Hawley discuss the matter
,over lunch with Peterson of the Building Trades Council. The invi-
tation was declined.
Hawley testified that later the same day a man who identified
himself as Peterson of the Building Trades Council called him, re-
ferred to Devine's conversation with Hawley, stated that the work
belonged to Local 533, and suggested that the Company let out the
work to a contractor who would hire members of Local 533. Hawley
replied in the same manner as he had to similar requests by Devine.
On November 17, 1955, Trainor, representative of Local 533, came
to see Hawley at his office and asked Hawley to contract out the work
so that members of 533 could do it. Hawley informed him that the
Company did not intend to do that.
On November 18 Loca1533 placed a picket at the job site . He carried
a sign reading, "The pipe fitting work being done by the Kansas City
Power & Light Company on this job is not being performed by a
contractor that employs members of Pipe Fitters Local 533, A. F. of L."
The,Company's employees scheduled to work that morning did not
cross the picket line.
On November 21, 1955, Humphrey, business manager of Local 533,
called Hawley and told him that the work belonged to Local 533
members. On the same date the Company's employees reported for
work but still refused to cross the picket line. Nash, IBEW steward,
told Hurst that the men would not cross the picket line until James,
business manager of IBEW Local 1464, told them to do so.
On November 28, 1955, Nash informed Hurst that the employees
were going to cross the picket line. At that time there were about 15
persons not employed by the Company standing across the street, and
James told the employees not to go to work, that he did not want any
violence . Either that evening or the next day the picketing was
discontinued.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 26 the Respondent by letter to the city manager,.
Kansas City, informed him that charges had been filed against Local
533 for causing the work stoppage and offered to supply men to do the-
job without cost.
After the work stoppage-the record does not show exactly when-
Kansas City informed the Company that, if it could not finish the
job, the city would give a contract to a local firm to do it. The city
thereupon gave the work to, and it was completed by, another com-
pany employing members of Local 533.
Contentions of the Parties
The Company contends that by the above conduct the Respondent
violated Section 8 (b) (4) (D) of the amended Act. The Respondent
contends that (1) it is not responsible for the work stoppage, as the
Company's employees refused to work at the direction of officials of
their own representative, IBEW Local 1464; (2) that, as the picket-
ing was discontinued and has never been resumed and as this job has
been completed, the case is moot; and (3) that by its letter to the
Regional Director on the morning of the hearing the Respondent
agreed to do everything which the Board could require in a Section
10 (k) proceeding, and, therefore, the Board is without jurisdiction.
Applicability of the Statute
The charge, which was duly investigated by the Regional Director,
alleges a violation of Section 8 (b) (4) (D) of the Act, and the
Regional Director was satisfied, on the basis of his investigation,
that a violation of the section had been committed.
In a proceeding under Section 10 (k) of the Act, the Board is
required to find that there is reasonable cause to believe that Section
8 (b) (4) (D) has been violated before proceeding with a determina-
tion of the dispute out of which the unfair labor practice has arisen.
As set forth above, the Respondent contends that it was not re-
sponsible for the work stoppage and thus had not violated Section 8 (b)
(4) (D). It is uncontroverted that the Respondent set up the picket
line, and the evidence shows that its objective was to force the assign-
ment of work to its members. Viewed in the light most favorable to the
Respondent's contention, any direction which may have been given by
IBEW Local 1464 to its members not to cross the Respondent's picket
line would have a bearing only on the question of joint participation
with Local 533 in a violation of Section 8 (b) (4) (D). Local 533
would still be responsible for setting up a picket line for a proscribed
objective. In any event, however, even if there had been no work
stoppage at all, the Respondent would still have violated the Act, for
a work stoppage is not a necessary element to a finding that Respond-
UNITED ASSOCIATION OF JOURNEYMEN, ETC. 1415
ent "induced and encouraged employees" in violation of Section 8 (b)
(4) (D). As held by the Court of Appeals for the Second Circuit in
N. L. B. B. v. Associated Musicians, Local 802, AFL, 226 F. 2d 900,
November 3, 1955, enforcing 110 NLRB 2166, the words "induce and
encourage" do not refer only to a successful inducement or encourage-
ment-"success was not intended to be an essential element of a viola-
tion. . . ." Although Associated Musicians involved Section 8 (b)
(4) (A), the holding in this respect applies equally to Section 8 (b)
(4) (D). The difference between these subsections of 8 (b) (4) goes
only to the objective and not to the acts of inducement or encourage-
ment. (See Local 58, International Brotherhood of Electricians
(Taylor Electric, Inc. ), 107 NLRB 1004, footnote 3.)
With respect to the Respondent's contention that the case is moot
because the job has been finished, the Board has in many cases held
that a dispute is not moot merely because the job has been completed.
See, for example, United Brotherhood of Carpenters (Ora Collard),
98 NLRB 346, and Local 58, International Brotherhood of Electrical
"Workers (Taylor Electric, Inc.), 107 NLRB 1004.
The third defense relied on by the Respondent is its letter of January
6, 1956, which it handed to the Regional Director shortly before the
hearing began. A copy of this letter is attached as an appendix to
this Decision. In this letter the Respondent requested that no further
action be taken in this proceeding, stated that it neither admitted nor
denied the allegations of the charges, admitted that it was not lawfully
entitled to force or require the Company to assign the work of tying in
steam pipe to its members, and stated that it will not induce or
encourage employees to strike in order to force such assignment. It
is noted that the language of the letter is that currently used by the
Board in its Determination of Dispute in Section 10 (k) proceedings.
At the hearing the Respondent, as noted above, moved that the
charges be dismissed "on the grounds that Local 533 has taken all
the action required under the law and the Board is without jurisdic-
tion." In its brief the Company urges that the letter of January 6,
1956, constituted neither satisfactory evidence that the parties have
adjusted or agreed upon methods for adjustment nor an informal set-
tlement-that the letter was a unilateral declaration not accepted by
the Company or the IBEW and not approved by the Regional
Director.
We find merit in the Company's contentions. The Respondent's
letter, for the reasons urged by the Company, constitutes neither evi-
dence of an agreed upon method for voluntary adjustment of the dis-
pute nor an informal settlement. Nor does it render the dispute moot.
The letter states specifically that the Respondent neither admits nor
denies the allegations of the charges. It does not admit the facts
alleged. There is no indication that the Respondent is willing to con-
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fer with the Regional Director and the Company with respect to a set-
tlement of the charges, that it would be willing to sign such a settle-
ment, or that it would give any protection against future recurrence
of the conduct alleged as violative of Section 8 (b) (4) (D).
To the contrary, the Respondent's conduct is quite opposite from
that which would persuade us that the Respondent had made a good-
faith offer to settle the dispute and refrain from the conduct which is
the subject of the charges filed herein-a factor which our dissenting
colleague apparently finds easy to disregard. The record shows that
the Respondent set up a picket line for the purpose of inducing the
Company's employees to cease work in order to force the assignment
of work to its members. The Respondent's efforts were successful; the
Company lost the contract; and the Respondent did secure the work
assignment. Then at the very last moment, immediately before the
hearing in this proceeding came to order, the Respondent submitted a
letter to the Regional Director stating that it will not violate Section
8 (b) (4) (D). We would be shortsighted indeed and remiss in our
responsibility under the statute were we to accept that document as a
settlement. To terminate this proceeding at this stage without a deter-
mination would leave the Board with the possibility of again facing a
last minute effort to forestall Board action at some time in the future.
Under the circumstances we believe that the policies of the Act and the
direction of Section 10. (k) impel that we make findings of fact and
issue a Determination of Dispute in this proceeding.
We are satisfied, and find, that there is reasonable cause to believe
that the Respondent induced or encouraged employees working on the
job to engage in a work stoppage in violation of Section 8 (b) (4) (D).
We find, accordingly, that the dispute involved in this proceeding is
properly before the Board for determination under Section 10 (k) of
the Act.
Merits of the Dispute
When the Respondent demanded that its members be assigned the
work of tying in the steam lines, employees of the Company were per-
forming that work. The dispute, therefore, was one over an employ-
er's assignment of work to his own employees rather than to persons
represented by the Plumbers.
It is well established (Juneau Spruce Corporation, 82 NLRB 650)
that an employer is entitled to make such assignments free of strike-
pressure by a labor organization, "unless such employer is failing to
conform to an order or certification of the Board determining the
bargaining representative for employees performing such work."
The Board finds, accordingly, that the Respondent was not lawfully
entitled to require the Company to assign the work of tying in the steam
pipe at the municipal garage at Kansas City, Missouri , to members of
UNITED ASSOCIATION OF JOURNEYMEN, ETC. 1417
the Respondent rather than to employees assigned by the Company to
perform such work.
Determination of Dispute
Upon the basis of the foregoing findings, and the entire record in
this case, the Board makes the following determination of dispute pur-
suant to Section 10 (k) of the Act:
1. United Association of Journeymen & Apprentices of the Plumb-
ing & Pipe Fitting Industry of the U. S. & Canada, Local No. 533,
AFL-CIO, and its agents are not and have not been lawfully entitled
to force or require the Kansas City Power & Light Company, to
assign the work in dispute to members of Local 533 rather than to the
Company's own employees.
2. Said Local No. 533 shall, within ten (10) days from the date of
this Decision and Determination, notify, in writing, the Regional
Director for the Seventeenth Region of the National Labor Relations
Board, whether or not it accepts the Board's determination of this
dispute, and whether or not it will refrain from forcing or requiring
the Kansas City Power & Light Company, by means proscribed by
Section 8 (b) (4) (D) of the Act, to assign the work in dispute, to
members of Local 533 rather than to employees in the Company's
employ.
MEMBER MURDOCK, dissenting:
I cannot agree with the majority that this is the type of case in
which Congress intended the Board to continue with proceedings
under Sections 10 (k) and 8 (b) (4) (D) of the Act. The futility and
lack of purpose of the action taken here indicates that once this Agency
starts a case down the road of Board consideration, regardless of
changed circumstances, if the wheels have sunk into the well worn
ruts, the vehicle must continue along the entire route.
If ever a case was moot, this is it. On either the evening of Novem-
ber 28, 1955, or the next day, the picketing by the Respondent ceased.
There is nothing in the record even to suggest that this cessation of
Respondent's conduct charged as violative of Section 8 (b) (4) (D)
was other than entirely voluntary. Since that date the Respondent
has not picketed any of the Company's job sites. The Company's
superintendent of underground construction, labor foreman, and gen-
eral foreman of steam distribution, all testified that since November
28, 1955, the Respondent has not picketed any company site. On
January 6, 1956, before the hearing began, the Respondent delivered to
the Regional Director the letter which is attached as an appendix to
the majority decision, in which it completely surrendered any claim
to the work dispute. What remains for the Board to adjudicate?
Truly, this proceeding is "beating a dead horse."
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The majority opinion is directly counter to the concept of voluntary
action in the settlement of "jurisdictional disputes" which Section 10
(k), by its very language, provides. This concept was appropriately
described by Senator Murray in speaking of Section 10 (k) as it
-appeared in the Senate bill (93 Cong. Rec. 4155) :
We believe this provision of the bill to be sound, and are pleased
to note that full opportunity is given the parties to reach a volun-
tary accommodation without governmental intervention if they
so desire. We are confident that the mere threat of governmental
action will have a beneficial effect in stimulating labor organiza-
tions to set up appropriate machinery for the settlement of such
controversies within their own ranks, where they properly should
be settled.
The Respondent's letter of January 6, 1956, delivered before the hear-
ing, constituted a complete surrender of its claim to the disputed work
and a commitment not to engage in conduct proscribed by Section
8 (b) (4) (D) in the future; as such, it should have had the effect
of terminating any further action in this proceeding.
If the parties had "agreed upon methods for the voluntary adjust-
ment of the dispute," the Board would have no difficulty quashing
the notice of hearing despite the fact that there could be no certainty
the Union would accept the determination in the eventual voluntary
adjustment. Indeed, in a case where one of the parties had refused
to comply with an award already made and was still pressing its claim
to the work, and had been restrained from continuing its strike only
by an injunction proceeding under Section 10 (1) of the Act in the
United States District Court, the Board nevertheless quashed a notice
of hearing because the Union as a party to the Joint Board agree-
ment had literally "agreed upon methods for the voluntary adjust-
ment of the dispute." In Local Union No. 9, Wood, Wire, and Metal
Lathers International Union, AFL (A. W. Lee, Inc.), -113 NLRB
947, the Board said :
The fact that Lathers Local 9 has refused to abide by the deter-
mination, in derogation of its agreement, is, in our opinion, im-
material. As previously noted, the proviso to Section 10 (k)
applies equally to adjustment or an agreement upon a method of
adjustment. The Board has previously held that the refusal of
a party to abide by a determination made pursuant to an agreed-
upon method, does not nullify the agreement on a method for
voluntary adjustment within the meaning of the proviso to Sec-
tion 10 (k).
Yet in the present case where we have a complete surrender by the
Respondent-an admission that it is not entitled to force the, assign-
ment of the work by the means alleged in the charge, a voluntary
UNITED ASSOCIATION OF JOURNEYMEN , ETC. 1419
cessation of the strike, and a promise to refrain in the future from
conduct proscribed by Section 8 (b) (4) (D)-the majority is un-
-willing to quash the notice. If the facts in cases such as A. IV. Lee
warrant the quashing of the notice of hearing, the majority should
have no difficulty here. One would think that a complete surrender
of work claims should be worth at least as much if not more than an
.agreement on a "method" of adjusting a live dispute. Yet my col-
leagues reject the letter of surrender as "a unilateral declaration" not
accepted by the Company or IBEW or by the Regional Director.
Surely the surrender could not be made any more complete or effec-
tive by a formal note of acceptance.
Finally, a quick comparison of the Determination and the Respond-
ent's letter of January 6, 1956, demonstrates how meaningless it is to
persist and adhere to the form of procedures in this case. The Deter-
mination of Dispute finds that the Respondent is not "lawfully
entitled" to force or require the Company to assign the work to its
members; it directs it to notify the Regional Director whether it
accepts this determination, and whether or not it will refrain from
forcing or requiring the Company by means proscribed by Section
8 (b) (4) (D) to assign the work to its members. But the Respondent
has already in its letter of January 6, 1956, to the Regional Director
stated it "admits that it is not lawfully entitled" to force or require
the Company to assign the work to its members, and informed him
that it "will not induce or encourage the employees of any employer
to engage in a strike or a concerted refusal to work where an object
thereof is to cause the Kansas City Power & Light Company to
assign the work of tying in of steam pipe to members of this Organiza-
tion rather than to members of any other craft or class of employees."
What is the sense of ordering the Respondent to do again what it has
already done?
For the reasons stated above, I would quash the notice of hearing
in this case.
APPENDIX
January 6,1956.
MR. HUGH E. SPERRY,
Regional Director 17th Region,
National Labor Relations Board,
Kansas City, Missouri.
Re 17 CD 24
DEAR MR. SPERRY : Without either admitting or denying the allega-
tions contained in the charges filed in the above entitled matter you
are hereby advised that United Association of Journeymen & Ap-
prentices of the Plumbing and Pipefitting Industry of the United
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States & Canada, Local No. 533, AFL-CIO admits that it is not
lawfully entitled to force or require the Kansas City Power & Light
Company to assign the work of tying in steam pipe to members of
this Organization rather than to members of any other craft or class
of employees.
This Organization advises you that it will not induce or encourage
the employees of any employer to engage in a strike or a concerted
refusal to work where an object thereof is to cause the Kansas City
Power & Light Company to assign the work of tying in of steam
pipe to members of this Organization rather than to members of
any other craft or class of employees.
We wish to further advise you that any inducement which allegedly
had such a purpose or effect has long since ceased. We respectfully
urge that no further action be taken in this matter and that the
charges heretofore filed be withdrawn or dismissed.
Yours truly,
CHICK IIuDMPHREY,
Bus Mgr. Local 533.
Westinghouse Electric Corporation and Buffalo Section, West-
inghouse Engineers Association , Engineers and Scientists of
America,' Petitioner . Case No. 3-RC-1634. May 28, 1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Bernard Marcus, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer s
1 The name of the Petitioner appears as amended at the bearing.
f The hearing officer referred to the Board the motions to dismiss made at the hearing
by the Intervenor . For the reasons set forth below , these motions and the motions to
dismiss made in the Employer' s brief are hereby denied.
s Buffalo Salaried Employees Association , Incorporated , herein called the Intervenor,
was permitted to intervene in this proceeding on the basis of its contractual Interest in
the employees whom the Petitioner seeks to represent . The motion to Intervene was
granted without objection, but the Petitioner , later In the hearing and in its brief filed
after the hearing, contended that the Intervenor had no standing as its most recent con-
tract failed to reflect a change In Its name. We find this contention without merit. Ac-
cordingly , the Intervenor 's petition to reopen hearing, filed on April 30, 1956, to take
evidence as to its change in name, is hereby denied.
The Petitioner and the Intervenor refused to stipulate that each was a labor organiza-
tion within the meaning of the Act. We find that as both the Petitioner and the Intervenor
115 NLRB No. 228.