Local 300, United Assoc. of Journeymen, Etc.

National Labor Relations Board - Board Decisions

Nov 15, 1965

155 N.L.R.B. 836 (N.L.R.B. 1965)

836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Edward R . Watts immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to any seniority
or other rights and privileges previously enjoyed, and make him whole for any
loss of pay suffered as a result of the discrimination against him.
WE WILL notify the above -named employee , if presently serving in the Armed
Forces of the United States, of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
WE WILL make whole the employees named below for any loss of pay suffered
by them by reason of the discrimination against them in accordance with the
Recommended Order of the Trial Examiner's Decision:
Julia Gomes Edna Britto Gail Lomba
Joan Whetstone Judy Vierra Jo-Ann (Raleigh) Leonard
Bernice Vanover Rosemary Diaz Nancy Lopez
Diane ( Macomber ) Berger Madeline Shorts
All our employees are free to become or remain, or refrain from becoming or
remaining, members of Amalgamated Jewelry Workers Union, Local 18, AFL-CIO,
or any other labor organization.
VACUUM PLATING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, Boston Five
Cents Savings Bank Building , 24 School Street, Boston , Massachusetts , Telephone No.
523-8100.
Local 300, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO and D 'Annunzio Bros ., Inc. Case No. 2P-
CD-95. November 15,1965
DECISION AND ORDER
Upon a charge filed on May 25, 1964, by D'Annunzio Bros., Inc.,
herein called the Company, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 22, issued a
complaint on June 4, 1965, against Local. 300, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO, herein called the
Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section
S(b) (4) (:i) and (ii) (D) of the National Labor Relations Act, as
amended. In substance, the complaint alleges that the Respondent
violated the Act by engaging in picketing activities at the Raritan-
Millstone Plant Extension of the Elizabethtown Water Company,
Bridgewater Township, New Jersey, with an object of forcing or
requiring the Company to assign the work of unloading, hanclling,
distributing, and installing reinforced concrete pipe, concrete lock
155 NLRB No. 55.
LOCAL 300, UNITED ASSOC. OF JOURNEYMEN, ETC. 837
joint, cast iron pipe, and appurtenances used in the filtration and treat-
ment of raw water to render it into a potable state, to employees repre-
sented by the Respondent, rather than to employees represented by
Local 4'12, International Hod Carriers, Building and Common Labor-
ers Union of America, AFL-CIO, herein called the Laborers.
On June 23, 1965, the Respondent, the Company, and the General
Counsel entered into a stipulation submitting this proceeding directly
to the Board for the issuance of findings of fact, conclusions of law,
and a Decision and Order. It was agreed that the entire record in this
case shall consist of : The Decision and Determination of Dispute,
the transcript of testimony, depositions and exhibits in the prior 10 (k)
proceeding,' and the formal papers in the present proceeding. The
parties waived a hearing before a Trial Examiner, the making of
findings of fact and conclusions of law by a Trial Examiner, and the
issuance of a Trial Examiner's Decision. On June 30, 1965, the Board
issued an order approving the stipulation and transferred the case to
itself. Thereafter, a brief was filed by the respondent.
Upon the entire record in the case,2 the Board 3 makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
D'Annunzio Bros., Inc., is a general contractor engaged in the busi-
ness of performing excavation, pipeline, and other construction work
in the building and construction industry in New Jersey. During the
past year the Company made gross purchases of goods and services
valued at more than $50,000 which were furnished directly to it from
outside the State of New Jersey. We find that the Company is
engaged in commerce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondent and the Laborers are labor organizations within
the meaning of Section 2(5) of the Act.
I On May 19, 1965, in a proceeding pursuant to Section 10(k), the Board (Member
Panning dissenting) issued its Decision and Determination of Dispute (152 NLRB 707),
in which the Board concluded that employees of the Company represented by Laborers
were entitled to perform the work in dispute. The parties have stipulated that since this
Decision Respondent has taken the position that it will not comply therewith and so
notified the Regional Director by letter on about June 3, 1965.
2 The requests of Respondent and the Company for oral argument are denied, as the
record and briefs in our opinion adequately present their positions.
3Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman McCulloch and
Members Brown and Jenkins].
Although he did not participate in the Board's Decision and Determination of Dispute
(152 NLRB 707), Member Brown concurs in the present Decision and Order.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The Company, having recently completed a contract (contract E)
for the Elizabethtown Water Company at the Raritan project by con-
structing a 600-foot water transmission pipeline from the Raritan
River to within a few hundred feet of a pumping station, commenced
work on two additional contracts covering additional work. One of
these (contract B) called for continuation of the above pipeline to,
and construction of, a low level pumping station. This pipeline was
completed without any jurisdictional dispute arising.
The remaining contract ( contract A) called for construction of
certain (Sommer) filters, and laying the requisite piping. In Decem-
ber 1963 the part of the piping under the contract which was to be
installed underground and outside building structures was assigned
by the Company to certain of its employees , represented by the Labor-
ers. No dispute arose as to another part of the piping which was to
be performed inside buildings; such work was sublet to a plumb-
ing contractor specializing in mechanical Plumbing work, Remsco
Associates.
In early April 1964 Powers, Respondent 's business manager
appeared at the worksite and made a demand upon D'Annunzio, the
Company's president , for the outside piping work being performed
under contract A. D'Annunzio refused to comply with this demand
on the ground that the Company had been using laborers to lay out-
side pipe in New Jersey for many years. Thereafter, on April 14,
1964, Respondent through its International representative submitted
the dispute to the National Joint Board for Settlement of Jurisdic-
tional Disputes of the Building and Construction Trades Department,
AFL-CIO, herein called the Joint Board. The Laborers are bound
to the settlement procedures of the Joint Board, as an affiliate of an
International union which is a member of the Building and Construc-
tion Trades Department of the AFL-CIO and subject to the constitu-
tion of that department.
At the time of this submission, the Company had no contract with
the Respondent. The Company did have a contract with the Laborers,
recognizing that union as the bargaining agent of all its employees.
This contract contained the following provision :
The Employer (Company recognizes the Union as the sole and
exclusive Collective Bargaining Agent for all employees em-
ployed by the Employer engaged in the excavation, foundation,
highway, rock drilling, blasting, sewers, railroad track, cold
patch work, wrapping and coating of all pipe, landscape work,
power buggy and duct line work, heavy and general construction
work and other work (in the State of New Jersey) as defined and
LOCAL 300, UNITED ASSOC. OF JOURNEYMEN, ETC. 839
fixed in the -Manual of Jurisdiction (Part I) of October 1961, of
the International Hod Carriers' Building and Common Laborers'
Union of America, except to the extent that any work jurisdic-
tion claimed therein has been or shall be determined to be the
work of another union, either by decision of a jurisdictional dis-
pute board, or by any duly authorized competent agency, or by
agreement between unions, or by any other legal means , but this
shall not preclude the Union from processing its claim for any
such work jurisdiction by any lawful means. In the event of a
jurisdictional dispute arising under this agreement, there shall
be no work stoppage, and the dispute shall be submitted for
determination in any lawful manner provided for settlement of
work jurisdictional disputes, including but not limited to the
Joint Jurisdictional Dispute Board.
On April 23 or 24, 1964, the Joint Board, acting without the par-
ticipation of the Company or the Laborers, rendered a decision con-
cerning the disputed work, and notified the Company and the Labor-
ers that it had assigned the work to the Respondent. Powers then
promptly made a second demand for the work on the Company,
accompanied by a strike threat. The Company rejected the demand,
emphasizing that the costs of such a work assignment to plumbers
could eventually become prohibitive.
The Respondent has stipulated, and we find, that following the
above events, from May S to June 3, 1964, it picketed the entrance
to the construction site, thereby inducing individuals employed by
the Company and other persons to engage in work stoppages, and also
threatening, coercing, or restraining the Company and other such
persons .4 Respondent further stipulated, and we find, that the
Respondent engaged in such picketing with an object of forcing or
requiring the Company to change the assignment of the disputed
work from its own employees, who were members of or represented
by the Laborers, to employees who were members of or represented
by the Respondent.
The Respondent's defense herein, as argued in its brief, is in the
nature of a request for reconsideration of the Board's Decision and
Determination of Dispute issued in the 10(k) proceeding.
The brief asserts that in none of the decisions which relate to Sec-
tion 10(k) did the Board explicate its reasons for holding that an
employer, who has allegedly been subjected to an unfair labor prac-
tice which contravenes Section S (b) (4) (D), is a necessary party to
4 On June 3, 1964, the picketing was voluntarily discontinued by the Respondent upon
notification that a notice of hearing pursuant to Section 10(k) of the Act would be issued
with regard to the dispute.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such voluntary adjustment procedures (under Section 10(k)) as the
Board will find preclude a determination under that section. How-
ever, in one of the first 10(k) proceedings to come before it, the Board
considered and (over Member Houston's dissent) rejected: (a) the
assertion that the employer was not a necessary party to the dispute;
and (b) the contention that the legislative history showed that Sec-
tions 10(k) and 8(b) (4) (D) referred to different disputes, and were
not coterminous with respect to the scope of the dispute in question.
In subsequent decisions the Board has consistently followed this inter-
pretation of Section 10(k), and has found that it was the employer
and also the rival unions who comprised the "parties to such dispute"
who would have to approve and enter into a voluntary adjustment
procedure under Section 10(k) to preclude a hearing and determine
tion pursuant to that section.6 We note, moreover, that the Board's
longstanding interpretation of this aspect of Section 10(k) was nei-
ther questioned nor disturbed when the -National Labor Relations Act
was most recently amended by Congress in 1959. Accordingly, we find
no merit in Respondent's contention that the parties to the present dis-
pute had agreed to such a voluntary adjustment procedure under
Section 10(k) as would now require us to dismiss the present com-
plaint. We have also examined the remaining arguments in support
of Respondent's position, and find nothing therein which was not pre-
viously considered by the Board. We perceive no reason for disturb-
ing the prior Decision and Determination of Dispute.
In the circumstances, we conclude that Respondent's picketing
activities violated Section 8(b) (4) (i) and (ii) (D) of the Act.7
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above,
occurring in connection with the operation of the Company 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 and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that the Respondent violated Section 8 (b) (4) (i) and
(ii) (D) of the Act, we shall order it to cease and desist therefrom and
Lodge 68 of the International Association of Machinists (Moore Drydock Company),
81 NLRB 1108, 1114.
'United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, Local 428, AFL (Philadelphia Association),
108 NLRB 186, 197.
7, Local 69, United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada , AFL-CIO ( Bellezza Company, Inc ),
149 NLRB 599 , and cases cited therein.
LOCAL 300, UNITED ASSOC. OF JOURNEYMEN, ETC. 841
take certain affirmative action designed to effectuate the policies of
the Act.
CONCLUSIONS or LAW
1. The Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Respondent and the Laborers are labor organizations within
the meaning of Section 2(5) of the Act.
3. By its picketing at the Raritan-Millstone Plant Extension of the
Elizabethtown Water Company, Bridgewater Township, New Jersey,
with an object of forcing or requiring the Company to assign certain
work (unloading, handling, distributing, and installing reinforced
concrete pipe, concrete lock joint, cast iron pipe, and appurtenances
used in the filtration and treatment of raw water to render it into a
potable state) to employees represented by the Respondent rather than
to employees represented by the Laborers, the Respondent has engaged
in unfair labor practices within the meaning of Section 8(b) (4) (i)
and (ii) (D) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent, Local 300, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, Newark, New Jersey, its officers,
agents, and representatives, shall:
1. Cease and desist from engaging in, or inducing or encouraging
individuals employed by D'Annunzio Bros., Inc., or any other person
engaged in commerce or in an industry affecting commerce, to engage
in a strike or refusal in the course of their employment to use, manu-
facture, process, transport, or otherwise handle or work on any mate-
rials, or to perform any services; and from threatening, coercing, or
restraining the aforesaid employers, where an object in either case is
to force or require D'Annunzio Bros., Inc., to assign the work (at the
Raritan-Millstone Plant Extension of the Elizabethtown Water Com-
pany, Bridgewater Township, New Jersey) of handling, unloading,
distributing, and installing reinforced concrete pipe, concrete lock
joint, cast iron pipe, and appurtenances used in the filtration and
treatment of raw water to render it into a potable state, to employees
represented by the Respondent rather than to employees represented
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Local 472, International Hod Carriers, Building and Common
Laborers Union of America, AFL-CIO.
2. Take the following affirmative action the Board finds will effec-
tuate the policies of the Act :
(a) Post at its business offices and meeting halls in Newark, New
Jersey, copies of the attached notice marked "Appendix." 8 Copies of
said notice, to be furnished by the Regional Director for Region 22,
shall, after being duly signed by the Union's representative, be posted
by the Union immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Union to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Sign and mail copies of said notice to the Regional Director
for Region 22 for posting by D'Annunzio Bros., Inc., the Company
willing, at locations where notices to its employees are customarily
posted.
(c) Notify the Regional Director for Region 22, in writing, within
10 days from the date of this order, what steps have been taken to
comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decision of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
AVE WILL NOT engage in, or induce or encourage individuals
employed by D'Annunzio Bros., Inc., or any other person engaged
in commerce, or in an industry affecting commerce, to engage in
a strike or refusal in the course of their employment to use, man-
ufacture, process, transport, or otherwise handle or work on any
materials, or to perform any services; or threaten, coerce, or
restrain the aforesaid employers or persons, where an object in
either case is to force or require D'Annunzio Bros., Inc., to assign
the Work of unloading, handling, distributing, and installing
reinforced concrete pipe, concrete lock joint, cast iron pipe, and
appurtenances used in the filtration and treatment of raw Water
to render it into a potable state, at the Raritan-Millstone Plant
Extension of the Elizabethtown Water Company, Bridgewater
Township, New Jersey, to employees represented by this Union,
WENATCHEE THRIFTY DRUGS, INC. 843
rather than to employees represented by Local 472, International
Hod Carriers, Building and Common Laborers Union of Amer-
ica, AFL-CIO.
LOCAL 300, UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF TIIE 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 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 614 National Newark Building, 744 Broad Street, Newark, New
Jersey, Telephone No. Market 4-3088, if they have any questions con-
cerning this notice or compliance with its provisions.
Wenatchee Thrifty Drugs, Inc. and Retail Store Employees Local
631, Retail Clerks International Association , AFL-CIO. Cases
Nos. 19-CA-2687 and 19-CA-2812. November 15, 1965
SUPPLEMENTAL DECISION AND ORDER 1
On July 27, 1965, Trial Examiner Martin S. Bennett issued his
Supplemental Decision in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Supplemental Decision. The Trial Examiner fur-
ther recommended that certain allegations of the complaint be dis-
missed. Thereafter the Respondent filed limited exceptions to the
Supplemental Decision and a supporting brief. The General Counsel
and the Charging Party likewise filed limited exceptions with sup-
porting briefs. An answering brief was thereafter filed by the
Respondent.
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 [Members Fanning, Brown, and Jenkins].
i See Wenatchee Thrifty Drugs, Inc., 151 NLRB 752, wherein the Board overi tiled the
Trial Examiner's recommended dismissal of the complaint for alleged lack of Board juris-
diction and remanded the case to the Trial Examiner for a decision on the merits.
155 NLRB No. 76.