The Plumbing Contractors Association of Baltimore, Maryland, Inc., et al.

National Labor Relations Board - Board Decisions

Mar 30, 1951

93 N.L.R.B. 1081 (N.L.R.B. 1951)

THE PLUMBING CONTRACTORS ASSN. OF BALTIMORE, MD., INC. 1081
cence, that there is mo warrant in this case for setting aside the elec-
tion.
Upon the basis of the foregoing, we find, contrary to the Regional
Director, that the objections filed by the Petitioner do not raise sub-
stantial or material issues. Accordingly, we hereby overrule the
objections. As no collective bargaining representative was chosen in
the election, we shall dismiss the petition.
Order r
IT IS III.ImEnv OIWEI{ :D that the petition filed herein be, and it hereby
is, dismissed.
Denton Slecpivy flainieat ,lfills, Inr, 93 NLRB 329, Inteinational Harvester Com-
pany, R'ctit Pullman lyon s, 93 NLRB No 48
In view of our findings herein, i,e do not pass upon the other issues raised by the
Emploler in its exceptions
THE PLUMIING CONTRACTORS ASSOCIATION OF BALTIMORE, MARYLAND,
INC., ET AT..; FREDERICK C. KNIESE; EDWARD J. MCCANN & CO.;
WILLIAM J. HENSLER and UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE
UNITED S'I'A'ITS AND CANADA, LOCAL No. 48, AFL, PETITIONER. Cases
Nos. 5-RC-96, 5-RC-94, 5-RC-95, and 5-RC-700. March 30, 1951
Decision , Order , and Direction of Election
Upon separate petitions i duly filed under Section 9 (c) of the
National Labor Relations Act, a hearing in these consolidated cases
was held before P.alph Winkler, hearing officer. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby aflirnied. 2
On February 1:3, 1951, the Board heard oral argument 3 at Washing-
ton, I). C., In which the Petitioner, The Plumbing Contractors Asso-
ciation of Baltimore, Maryland, Inc., hereinafter called the Associa-
tion, and the Intervenors' participated.
I At the hearing, the Petitioner requested permission to withdrawn its petitions in
Cases Nos. 5-RC-94 and 700 The healing officer referred this request to the Board.
In the absence of objections thereto, the request is hereby granted.
2 The Intervenors moved at the hearing to dismiss the petitions herein, on various
grounds discussed hereinafter. The hearing officer referred this motion to the Board
For the reasons set forth in Seetion 1, infra, the motion is granted as to the petition in
Case No 5-RC-95. For the additional reasons set forth hereinafter, the motion is
otherwise denied
3 Case No 3-TJA-626, which was consolidated with this proceeding for purposes of
oral argument , is Revered herefrom See Plumbing and Heating Contractors Association
of Olean, New York, 93 NLRB 1099, decided this day
4 Because of the alleged novelty of certain of the issues in this proceeding, and because
certain of the Intervenors represent employees of the Employers other than the employees
designated in the petitions, the Board permitted the following labor organizations to
intervolic' ITltPrniltlfnal Association of Bridge, Structural and Ornamental Iron workers;
93 NLRB No. 177.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board finds :
1. The business of the Employers :
(a) Edward J. McCann & Co., hereinafter called McCann, is en-
gaged in business as a plumbing contractor in Baltimore, Maryland.
During 1949, McCann purchased supplies and equipment valued at
approximately $35,000; all such purchases were made from supply
houses located in Baltimore, Maryland. Approximately 90 percent
of the supplies and equipment sold by such supply houses was manu-
factured outside the State of Maryland. During the same period, Mc-
Cann's gross income amounted to approximately $78,000. It does
not appear that any of such income was derived from work per-
formed outside Maryland, or from work performed within Maryland
for firms over which the Board would assert jurisdiction. We find,
therefore, that while McCann's operations affect commerce within
the meaning of the Act, it would not effectuate the policies of the Act
to assert jurisdiction over McCann a
Nor do we find merit in the Petitioner's contention that jurisdiction
should be asserted over McCann as part of the Association. Although
McCann is not a member of the Association, it customarily adheres to
the terms of the collective bargaining, agreements negotiated between
the Petitioner and the Association, has agreed in advance to adhere to
the terms of such agreements, would join the Association if asked,
and would prefer to bargain through the Association. The Associa-
tion, however, will not act as the bargaining agent of any employer
which is not a member of the Association, irrespective of such non-
member's desires or his adoption of the terms of the Association agree-
ments. As the Board has recently reiterated, the basic requirement
for inclusion in a multiemployer unit, and hence for basing jurisdic-
tion upon the totality of the operations of all the employers in the unit,
is "participation in joint bargaining as a group." 6 It is not sufficient
that an employer customarily adopts the terms of the agreement nego-
tiated by the multiemployer group, or agrees in advance to be bound
thereby. As McCann has not participated in group bargaining
through the Association, we must base our jurisdictional findings as
to McCann on McCann's individual operations, rather than on the
operations of the Association. Accordingly, we shall dismiss the peti-
tion as to McCann.
International Hod Carriers ', Building and Common Laborers ' Union of America ; Brick-
layers, Masons and Plasterers ' International Union of America ; United Brotherhood of
Carpenters and Joiners of America ; Sheet Metal Workers' International Association ;
International Union of Operating Engineers ; International Brotherhood of Boilermakers,
Iron Ship Builders and Helpers of America ; and International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers.
5 The relevant criteria established by the Board for asserting Jurisdiction are set forth
in Stanislaus Implement and Hardware Company, Limited , 91 NLRB 618; Hollow Tree
Lumber Company, 91 NLRB 635; Federal Dairy Co., Inc., 91 NLRB 638; Dorn's House
of Miracles, Inc., 91 NLRB 632; and The Rutledge Paper Products , Inc., 91 NLRB 625.
Pacific Metals Company, Ltd., et al., 91 NLRB No. 127.
THE PLUMBING CONTRACTORS ASSN. OF BALTIMORE, MD., INC. 1083
(b) The Association is a Maryland corporation organized for the
purpose, among others, of engaging in collective bargaining on behalf
of its members.? All the members of the Association are engaged in
business as plumbing contractors in Baltimore, Maryland. Certain
of them also operate in other areas of Maryland and in other States,
and at least one 8 maintains offices in other States. Some of the mem-
bers of the Association also engage in other types of building con-
struction activity and, in connection therewith, maintain membership
in other similar employer associations. During 1949, the members of
the Association made purchases of supplies and equipment valued in
excess of $3,250,000. Of this amount, in excess of $750,000 repre-
sented supplies and equipment shipped directly to members of the
Association from outside Maryland. The remaining purchases were
made from supply houses located in Maryland; approximately 90 per-
cent of the supplies and equipment sold by such supply houses was
manufactured outside the State of Maryland. During this same
period, the gross income of the members of the Association amounted
to more than $9,350,000; of this amount, more than $325,000 was de-
rived from work performed by Association members outside the State
of Maryland, and more than $500,000 from work performed within
Maryland for firms over which the Board would assert jurisdiction.
On the basis of the foregoing, we find that the operations of the
members of the Association, considered as a group,9 affect commerce
within the meaning of the Act,10 and that the totality of such opera-
The following 22 Employers are members of the Association : Brown & Shilling, Inc. ;
H E. Crook Company, Inc. ; Albert M. Diem ; Harry Elgin & Sons, Inc. ; Federal Plumbing
& Heating Co , Inc ; Wesley Freeman, Inc. ; Groener-Kaspar Company ; Frank J. Knell ;
Millette R. Linsley, t/a M It. Linsley Plumbing & Heating ; J. W. Marchant ; Francis R.
McKewin ; Mechanical Contractors, Inc. ; Lloyd E. Mitchell, Inc. ; The Paul-Rice Engineer-
ing Co , The George A. Peters Company ; Poole and Kent Company, Riggs, Distler &
Company, Inc ; The Sidney Sappington Corp. ; The George H. Schuman Co., Inc. ; Standard
Engineering Co, Inc., Edwin B. Tack, Inc. ; and Wm. E. Wood Company.
8 Riggs, Distler & Company, Inc., which we find is a multistate enterprise within the
meaning of The Borden Company, Southern Division, 91 NLRB 628.
We reject the Intervenors' contention that in order to assert jurisdiction over a group
of employers associated for the purposes of collective bargaining, the Board must find
that the operations of each member of the group affect commerce and satisfy the minimum
iequirements of the Board's jurisdictional policy. Avondale Dairy Co., et al., 92 NLRB
99, Cleveland Builders Supply Go, 90 NLRB 923; Carpenter & Skaer, Inc, 90 NLRB
417 It is true, as the Intervenors assert, that an individual employer may be able to
invoke or defeat the jurisdiction of the Board merely by joining or withdrawing from an
employer association Pacific Metals Company, Ltd., et al., 91 NLRB 696; Johnson
Optical Company, et al, 87 NLRB 539. Such action, to be effective, must however be
taken at an appropriate time. Purity Stores, Ltd., 93 NLRB 199; Engineering Metal
Products Corporation, 92 NLRB 823
In any event, we do not believe that the possibility that employers may join or quit
associations for that reason is sufficient ground to deny the benefits of the Act to labor
organizations and employers where, as in the instant case, the employers involved are
willing to participate in, and be bound by, group action. There is no suggestion in the
present record that the instant Employers joined the Association in order to bring their
operations within the Board's jurisdiction.
to We find without merit the Intervenors' contention that, as building construction
is a purely local activity, the operations of the Association members do not affect
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions more than satisfies the minimum criteria established by the
Board for the assertion of jurisdiction herein.ri
The Intervenors urge, nevertheless, that the Board should create'
an exception to its established jurisdictional policy and, because of
certain other asserted basic policy considerations, should reaffirm its
alleged historic policy 12 of declining to assert jurisdiction over the
building and construction industry. They assert, in this connection,
that if the Board assumes jurisdiction over the industry, and directs
elections in this and other pending cases, the result will be to disturb
existing arrangements in the industry. They point out that, although
jurisdictional disputes are common in the industry, the National Joint
Board for Settlement of Jurisdictional Disputes in the Building and
Construction Industry, hereinafter called the Joint Board ,13 which
was established with the knowledge of this Board, for the purpose of
considering and deciding such disputes, has heretofore enjoyed sub-
stantial success in adjusting them, and in avoiding work stoppages
commerce International Brotherhood of Electrical iVoikeis, Local 501, et at, V N L.
It B, 181 F 2d 34 (C. A 2), cert. granted 71 S Ct 278 (December 11, 1950). The
cases cited by the Intervenors, holding that building construction is a purely local activity,
were decided on the basis of the more limited commerce definition contained in the Fair
Labor Standards Act, 29 U S C A, Sec 203 (b), and hence are not controlling with
respect to the jurisdiction of this Board See Earl A101lillian Company, 81 NLRB 639
11 See cases cited in footnotes 5 and 8, supra.
,2 The Board did not, under the Wagner Act, customarily assert jurisdiction over the
building and construction industry See Johns-Jianville Corporation , 61 NLRB 1. Since
the enactment of the amended Act in 1947, however, the Board has treated this industry
the same as any other industry, asserting jurisdiction when the facts in the case pointed
to a substantial effect on commerce, and declining to assert juiisdiction when the facts
in the case indicated otherwise Examination of the legislative debate in 1947 made it
clear that Congress intended us to do so
See, for example, Edward Besch d .Sons, 92 NLRB 520, i1'hite Constriction and
Engineering Company, Ire, 92 NLRB 53 , Denver Building and Construction Trades
Council (William G Churches), 90 NLRB 378; Guy F. Atkinson and J A Jones Con-
struction Company, 90 NLRB 143, International Brotherhood of Electrical Workers,
Local 501, A. F. of L, and William Patterson (Samuel Langer), 82 NLRB 1028, enf 181
F. 2d 34 (C A 2), cert granted 7L S Ct 278, Denver Building and Construction Trades
Council et at (Gould & Picisner), 82 NLRB 1195, set aside on other grounds, 186 F 2d
326 (C A, D C ), cert granted 71 S Ct 281, United Brotherhood of Carpenters and
Joiners of America, et at (Wadsworth Building Company, Inc ), 81 NLRB 802, enf 184
F. 2d 60 (C A 10) ; Local 711, United Brotherhood of Carpenters and Joiners of Anie, ica,
A F of L et al (liatson's Specialty Store), 80 NLRB 533, enf 181 F. 2d 126 (C A 6),
cert granted 71 S Ct 277; Ozark Dam Constructors, 77 NLRB 1136
The history of the Board's policy with respect to this industry is thus different from
its history with respect to the hotel industry The legislative history is esen mole
contrasting, for Congress has indicated a des" e • that w e not exercise jurisdiction over
hotels Cf. Hotel Association of St Louis, 92 NLRB 1 388
iJ The Joint Board is composed of four labor members selected by the Building and
Construction Trades Department of the American Federation of Labor, tour employer
members selected by national associations or general and specialty contractors, and an
impartial chairman It is empowered to consider and decide only such disputes as are
referred to it by the affected international unions or employers Its rules and pioceduies
prohibit work stoppages pending its decision in a dispute. It has, however, no direct
power to enforce its decisions , but must rely on the voluntary cooperation of the unions
and employers which have agreed to be bound thereby. Direct action to enforce such
decisions can be taken only by the unions themselves, either individually, or concertedly
through the American Federation of Labor or its Building and Construction Trades
Department ; i e , by concerted activity against a recalcitrant employer , or suspension or
expulsion of a recalcitrant union.
C;
THE PLUMBING CONTRACTORS ASSN. OF BALTIMORE, MD., INC. 1085
based thereon. They contend that if the Board asserts jurisdiction,
conducts elections, and issues certifications to labor organizations in
this industry, the Joint Board's power to adjust disputes will be im-
paired, work stoppages based on such disputes will increase, and the
policies of the Act to promote collective bargaining and the peaceful
settlement of disputes will be frustrated. They also assert that the,
certification of one craft union in the industry would place noncer-
tified unions in such a disadvantageous position that the Board, in the
exercise of its discretion, should refuse to certify any unions in the
industry. Otherwise, they assert, all unions in the industry, in order
to protect themselves, would be forced to seek certification, thereby
inundating the Board with an overwhelming volume of cases.
Although the Board has asserted jurisdiction over the building and
construction industry in both unfair labor practice and representation
cases, the representation cases have involved either multicraft units
of construction employees on large projects of substantial duration,"
or shop employees.15 The Board is here for the first time confronted
with the question of whether it should direct an election in a proposed
single craft unit of employees employed in the actual construction
operations.
As the Board has pointed out in earlier cases involving the building
and construction industry,1e the legislative history of the amended
Act clearly establishes the intent of Congress in 1947 that the Board
should assert jurisdiction in that industry for the purpose of pre-
venting certain unfair labor practices by labor organizations. Con-
sistent with that intent, the Board has asserted jurisdiction in unfair
labor practice cases arising under Section 8 (b) (4) of the Act, when
such assertion was appropriate on the basis of the commerce facts
established therein.'' In addition, however, to proscribing certain
conduct by labor organizations, Section 8 (b) (4) excepts from such
proscription, or grants certain benefits to, a labor organization which
has been cetrtifed pursuant to Section (9) (c).18 Section 8 (b) (2),
when read in conjunction with Section 8 (a) (3), grants to a labor
organization which has been certified pursuant to Section 9 (e) (1)
the right to enter into and enforce a union-security contract. If, as
we think it must, the Board is to continue in appropriate cases to
process complaints and issue cease and desist orders against labor
organizations in the building industry, it would be most inequitable
for the Board, at,the same time, to deny to labor organizations the
14 See. foi example Ozorl, Dam Conctrue,tors. supra
15 See, for example. While Constiuctson and Fngiueerenq Company, Inc. supra.
'-See Denier Building and Con,truction Trades Council (Wallucnx G. Churches), supra,
and eases cited therein
17Inteinational Brotherhood of Electrical Workers. Local 501, A. F. of L, and William
Patterson ( Samuel Lange ). supra , Denver Building and Construction Trades Council
et al (Gould et Premier), supra.
11 See General Box Company, 82 NLRB 678
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits which accrue from certification when, in appropriate cases,
our jurisdiction is invoked. We do not believe that Congress intended
that in this industry the Board would wield the sword given it by the
Act, but that labor organizations desiring it should be denied the
shield of the Act. We believe, rather, that in providing that certain
benefits would flow from certification, Congress intended that the
shield should go with the sword, and that the Board should to this
end assert jurisdiction in representation and union-security authoriza-
tion cases to the same extent and on the same basis as in unfair labor
practice cases. Unless and until Congress, for reasons of policy,
provides otherwise by appropriate legislation, we must proceed on
that basis. We could not take, any other course without flouting the
will of Congress as now expressed in the 1947 statute.
Moreover, we do not believe that the results which the Intervenors
fear will necessarily flow in fact from our decision here. The Inter-
venors are mostly concerned about the effect of our decision on the
operations of the Joint Board. As we have said, the Joint Board was
organized to settle jurisdictional disputes voluntarily submitted to it
by employers and unions. Nothing in this decision will prevent, or
interfere with, such voluntary submission by employers and unions to
the Joint Board, or their voluntary compliance with its awards.19
The Intervenors contend, however, that certification will encourage
raiding by certified unions of the jurisdiction of noncertified unions,
and that the Joint Board and the noncertified unions will be powerless
to prevent such raiding or to enforce any award which the Joint
Board might make in favor of a noncertified union as against a certi-
fied one. They point out that in its original petition, although not
in the amended petition on which the case was heard, the Petitioner
sought a unit of employees performing certain specified "work tasks."
They also point out that the current contract between the Petitioner
and the Association specifies that certain work tasks shall be per-
formed by members of the Petitioner. They assert that certification
of the Petitioner as the representative of the employees in the pro-
posed unit would also be a certification that the members of the Peti-
tioner were entitled to perform all of the specific work tasks enumer-
ated in the original petition and the contract, some of which tasks,
the Intervenors assert, are in dispute or are rightfully within the
jurisdiction of certain of the Intervenors. They further assert that
if the Petitioner were thus certified, it could bargain with the Asso-
ciation for, and the Association could assign to the Petitioner's mem-
bers, all of the work tasks thus enumerated, or even all of the work
i'As Section 8 (b) (4) prohibits only engaging in, or inducing, or encouraging
employees to engage in a strike or boycott, a mere award by the Joint Board, and voluntary
compliance with that award, could not, contrary to the contention of the Intervenors,
result in a violation of any of the provisions of Section 8 (b) (4).
THE PLUMBING CONTRACTORS ASSN. OF BALTIMORE, MD., INC. 1087
which it was within the power of the Association to assign. They
contend that if a contract were concluded assigning to members of the
Petitioner work tasks which were in dispute or rightfully within the
jurisdiction of another craft, any attempt to enforce an award of the
Joint Board against the certified union, or any attempt by a non-
certified union to protect its rights, would be outlawed by Section
8 (b) (4) (C) and (D) .20 Thus, the Intervenors argue, the value of
the Joint Board as an agency for the peaceful settlement of jurisdic-
tional disputes would be impaired.
We believe that the Intervenors misapprehend the effect of a Board
certification in a representation proceeding. As the Board has here-
tofore held '21 and as we here reiterate, a Board certification in a repre-
sentation proceeding is not a jurisdictional award; it is merely a de-
termination that a majority of the employees in an appropriate unit
have selected a particular labor organization as their representative
for purposes of collective bargaining. It is true that such certifica-
tion presupposes a determination that the group of employees in-
volved constitute an appropriate unit for collective bargaining pur-
poses, and that in making such determination the Board considers the
general nature of the duties and work tasks of such employees. How-
ever, unlike a jurisdictional award, this determination by the Board
does not freeze the duties or work tasks of the employees in the unit
found appropriate. Thus, the Board's unit finding does not per se
preclude the employer from adding to, or subtracting from, the
employees' work assignments. While that finding may be determined
by, it does not determine, job content; nor does it signify approval,
in any respect, of any work task claims which the certified union may
have made before this Board or elsewhere.22
While a certified union may be able, through collective bargaining,
to secure a contract assigning to its members certain specified work
tasks which may impinge upon the claimed jurisdiction of other
20 Section 8 (b) (4) (C) prohibits a labor organization or its agents from engaging in
the conduct proscribed by Section 8 (b) (4) (see footnote 19, supra ), when an object
thereof is "forcing or requiring any employer to recognize or bargain with a particular
labor organization as the representative of his employees if another labor organization
has been certified as the representative of such employees under the provisions of section 9."
Section 8 (b) (4) (D) prohibits a labor organization or its agents from engaging in
such conduct when an object thereof is "forcing or requiring any employer to assign
particular work to employees in a particular labor organization or in a particular trade,
craft, or class rather than to employees in another labor organization or in another trade,
craft, or class , unless such employer is failing to conform to an older or certification
of the Board determining the bargaining representative for employees performing such
work."
21 General Analine & Film Corporation, Ansco Division, 89 NLRB 467 . We reject the
contention that the General Analine case should be overruled , and that the appropriate
unit should be defined in terms of work jurisdiction , so limited as not to impinge upon
the jurisdiction of othet unions
n The Petitioner has acknowledged that if it is certified in this proceeding it will not,
by virtue of such certification , attempt to assert or gain the right to claim for its members
any specified work tasks.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unions, such a contract may also be secured without certification, as
witness the current contract between the Petitioner and the Associa-
tion. There is, therefore, no necessary connection between a certifi-
cation and a contract assigning work tasks; nor would a Board certi-
fication stimulate the result feared by the Intervenors.
We also believe that the Intervenors misapprehend the meaning and
effect of Section 8 (b) (4) (C) and (D) of the Act, and are therefore
unduly concerned. Section 8 (b) (4) (C) prohibits the proscribed
conduct when it has as an object forcing or requiring an employer to
recognize or bargain with a noncertified, rather than the certified
union, as the representative of the employees in the unit with respect
to which the certification was issued. Accordingly, so long as the
noncertified union was merely seeking to secure a reassignment of work
to employees outside that unit, and was not seeking or claiming to
represent the employees within the unit, Section 8 (b) (4) (C)
would not be applicable.
Section 8 (b) (4) (D), on the other hand, constitutes an absolute
prohibition against certain types of economic action by unions when
engaged in for an object which falls within the scope of the Joint
Board's jurisdiction, i. e., securing the reassignment of work tasks,
except that under certain circumstances a certification might legalize
conduct by or on behalf of a certified union which would have been
unlawful if engaged in by or on behalf of a noncertified union 23
While certification of a union may give it certain immunities under
Section 8 (b) (4) (D), a noncertified union with a rival jurisdictional
claim would be in no worse position as a result of such certification.
It is true that a jurisdictional strike by a noncertified union, even if
the purpose of such strike were to enforce an award of the Joint Board
against the certified union, would violate Section 8 (b) (4) (D). But
this would be equally true if neither union were certified; for there
has been no ruling by the Board that the legality of a jurisdictional
strike depends on whether the union against which it was directed
was or was not certified. Thus, contrary to the Intervenor's conten-
tion, the certification of one union would not, under present Board
rulings, increase the disabilities of other noncertified unions under
Section 8 (b) (4) (D). We are therefore of the opinion that the di-
rection of an election in this case, and the possible resulting -certifica-
tion of the Petitioner, will have no adverse effect upon the ability of
the joint Board to continue its present highly desirable efforts to
secure the voluntary settlement of jurisdictional disputes, or upon the
enforcement of its awards.
23 We do not in this proceeding purport to define the meaning or limits of the phrase
" order or certification of the Board determining the bargaining representative for employees
performing such work ," as used in Section 8 ( b) (4) '(D).
THE PLUMBING CONTRACTORS ASSN . OF BALTIMORE , MD., INC. 1089
Moreover , assuming arguendo that, as the Intervenors apprehend,
this Board's assertion of jurisdiction in representation cases in the
building and construction industry might unstabilize labor relations
in that industry, or might adversely affect the operations of the Joint
Board, we are not free, in the absence of a mandate from Congress to.
accord special treatment to that industry , to take such considerations
into account in determining whether or not to exercise this Board's
authority under the Act. If, as the Intervenors predict, favorable
action on the petition in this case will precipitate a flood of petitions,
from other unions in the building and construction industry, the
Board would no doubt be confronted with serious administrative andi
budgetary problems. However, we cannot accord special treatment
to this industry, for jurisdictional purposes because of such a possible
increase in case load. A like argument could be made for withholding
the exercise of this Board 's jurisdiction over any one of a number of
other industries . Should the budgetary problem become a real one,,
the Board will have no alternative but to submit it to the President
and Congress for solution. Congress may then see fit to indicate in,
appropriate legislation whether it desires the Board to continue to,
assert jurisdiction over this and other cases in the building and con-
struction industry. Unless and until Congress so directs us, we can-
not presume to exercise an administrative discretion which we do not
possess . If the results which the Intervenors fear should in fact flow
from our decision , or if other problems not now foreseen should arise
therefrom, whatever relief may be thought appropriate must be sought
from Congress, and not from this Board.
Accordingly, on the basis of all of the foregoing considerations, we,
find that it will effectuate the policies of the Act to assert jurisdiction
over the Association.
2. The Petitioner is a labor organization claiming to represent cer-
tain employees employed by the members of the Association. The
Intervenors are labor organizations affiliated with the Building and
Construction Trades Department of the American Federation of
Labor.
3. The question concerning representation :
The Petitioner is currently recognized by the Association as the
collective bargaining representative of the employees in the proposed
unit. The Petitioner and the Association are parties to a collective
bargaining agreement running from April 1, 1950, to March 31, 1951,
and from year to year thereafter , in the absence of timely notice to,
modify or terminate. None of the Intervenors seeks to represent the,
employees in the proposed unit. We find, contrary to the contention
of the Intervenors, that the Act does not, under these circumstances,,
require that the petition be dismissed. The assertion by the Petitioner,
943732-51-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its majority status, and the filing of a petition expressing its desire
to secure a certificate, is itself sufficient to raise a question' concerning
representation.24
The Intervenors also assert as bars to the petition (1) a contract be-
tween the Association and the District Council of Baltimore and
Vicinity, International Hod Carriers, Building and Common Laborers
of America; (2) a contract between the Sheet Metal Contractors Asso-
ciation of Baltimore, Maryland, to which certain members of the
Association also belong, and Local Union No. 122 of Sheet Metal
Workers' International Association of Baltimore, Maryland, and
vicinity; and (3) the current agreement with respect to the Joint
Board. As the original petition herein was filed before the execution
or automatic renewal of the foregoing agreements, We find that none
of them constitutes a bar to this proceeding.25 We find it unnecessary,
therefore, to consider the other reasons advanced by the Petitioner for
holding that such agreements do not constitute a bar.
We find, accordingly, that a question affecting commerce exists con-
cerning the representation of employees of the Association members,
within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of
the Act.
4. The appropriate unit :
The Petitioner seeks a unit of all plumbers, plumbers' apprentices,
and gasfitters employed by the members of the Association in Balti-
more, Maryland, and vicinity. The Petitioner and the Association
have engaged in collective bargaining with respect to this proposed
unit for more than 20 years. The plumbers sought by the Petitioner,
who must undergo a 5-year apprenticeship training program before
they can qualify as licensed journeymen plumbers, 28 are engaged in
performing duties traditionally associated with their eraft.27 Al-
though each of the Association members employs some employees
other than those sought by the Petitioner, and certain of such em-
ployees work with the plumbers on occasion in the performance of
their duties,28 there is no interchange between the various groups of
employees.28
24 General Bow Company, supra.
25 The Westinghouse Air Brake Company, 85 NLRB 1133 ; International Harvester Co.
( McCormick Works ), 85 NLRB 1260.
28 There are no separate gasfitters as such, but some of the journeymen plumbers are
also qualified as gasfitters.
24 The fact that the employees in the proposed unit may perform some duties which
may not be strictly within the limits of their recognized craft does not destroy their
identity as a separate craft group when, as here , the substantial majority of their duties
are within the recognized scope of their craft Detroit Branch, Reliance Steel Division,
Detroit Steel Corporation , 90 NLRB No. 62.
"This fact does not derogate from the right to separate representation of craftsmen
otherwise entitled thereto Danly Machine Specialties , Inc, 90 NLRB No. 14.
29 The other employees are separately represented by other labor organizations
affiliated with the Building and Construction Trades Department of the American
Federation of Labor.
THE PLUMBING CONTRACTORS ASSN. OF BALTIMORE , MD., INC. 1091
Thus, the unit sought by the Petitioner is composed of the type of
craftsmen which the Board has consistently held may constitute a
separate appropriate bargaining unit, even in the face of a bargaining
history on a broader. basis 30 The Intervenors contend, however, that
a single craft unit is inappropriate in the building and construction
industry'31 because of the alleged integrated nature of the building
construction operation. As the Intervenors assert, the construction of
a building involves a series of successive operations by each of the
crafts involved, in which the work of each craft must precede or follow
the work of other crafts in a specified order, and is dependent for the
performance of its work upon the performance by the other crafts of
their particular work. We do not believe„however, that the degree
of integration established by the record in this case is so great that the
employees sought by the Petitioner have become an integral part of
an assembly line operation ..32 Rather, although their skills may be
used in the production of the end product, they remain a separate
group of craft employees whose work is neither repetitive nor syn-
chronized with assembly line operations.33 In addition, the pattern of
bargaining on a craft basis in the area, and the long history of separate
representation of the very employees sought herein, is further evidence
of the appropriateness of the proposed single craft unit.34 In any
event, as none of the other labor organizations involved seeks to repre-
sent the employees sought by the Petitioner, the question of the ap-
propriateness of some unit other than the single craft unit sought by
the Petitioner is not squarely before us.
On the basis of the foregoing, and the entire record in this case,
we find that all plumbers, plumbers' apprentices, and gasfitters em-
ployed by the members of The Plumbing Contractors Association of
Baltimore, Maryland, Inc., in Baltimore, Maryland, and vicinity, ex-
cluding supervisors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
5. Stability of employment :
During the period from January 1, 1950, through October 31, 1950,
approximately three-quarters of the employees in the appropriate
unit worked in that unit during more than 50 percent of the number of
weeks in the said period. During the same period, indeed, more
"United States Rubber Company, 91 NLRB No. 213; General Electric Company, 89
NLRB 726; Robertshaw -Fulton Controls Company, 88 NLRB 1508 ; General Electric
Company, 77 NLRB 1198.
31 We find without merit the Intervenors' further contention that a multi -employer unit,
such as is involved herein, is not an appropriate unit within the meaning of Section 9 (b).
Association of Motion Picture Producers , Inc., et al., 85 NLRB 902.
32 Cf. Ford Motor Company, 78 NLRB 887.
83 See The Plomb Tool Company, 87 NLRB 134.
31 Laycob Hat Company, 88 NLRB 257 . Cf. National Tube Company, 76 NLRB 1199;
The Permanente Metals Corporation, 89 NLRB 804.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than half the employees in the unit worked in the unit more than
80 percent of the number of weeks in the period. On these facts, we
find that employment in the unit is sufficiently stable to permit an
election to be held therein.
Order
IT IS HEREBY ORDERED that the petitions' in Cases Nos. 5-RC-94, 90,
and 700 be, and they hereby are, dismissed.
[Text of Direction of Election omitted from publication in this
volume.]
F. BURKART MANUFACTURING COMPANY i and INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORK-
ERS OF AMERICA, C. I. 0., PETITIONER. Case No. 14-RC-1257.
March 30, 1951
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 Milton O. Talent,
hearing officer . The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby afrined.2
At the hearing the Employer made a motion , joined in by Uphol-
sterers International Union of North America, A. F . L., and its Local
702, one of the Intervenors herein, that the petition should be dis-
missed upon the ground that the Petitioner had caused , fomented,
and incited a strike at the Employer 's plant in order to entrap the
Employer and the Upholsterers International Union of North Amer-
ica, A. F. L., and its Local 702, into reopening and revising a pres-
ently existing contract between them and that by reason thereof the
Petitioner should not be permitted to take advantage of the situa-
tion created by it to file and have considered the instant petition.
This motion was referred to the Board. If the Employer and the
Intervenor Upholsterers International Union of North America,
'The Employer's name appears as amended at the hearing
2 The hearing in this matter was scheduled for 10 a in, December 4, 1950 In view
of the fact that all parties were not present at the appointed time, the hearing officer
granted a recess of 1 hour. At approximately 11 a. in , the hearing officer proceeded
with the hearing having denied the motions of Upholsterers International Union of North
America, A F L., and its Local 702, one of the Intervenors lieiem, and the Employer to
continue the hearing because no iepresentative had appeared for Hod Carriers, Building
and Common Laborers Union of America, AFL, which apparently had an interest in
this proceeding Under the circumstances. particularly as the Hod Carriers had received
due notice of the hearing, we do not find that the hearing officer abused his discretion
in so proceeding See Howard County Lumber Co , Inc, 86 NLRB 512.
3 hood Bay Salmon Company, 83 NLRB 656 , Parks-Belk Company of Elazabethton,
77 NLRB 429, and cases cited theiein
93 NLRB No. 183.