Enterprise Assn. of Steamfitters, Loc. 638

National Labor Relations Board - Board Decisions

Mar 15, 1968

170 N.L.R.B. 385 (N.L.R.B. 1968)

ENTERPRISE ASSN. OF STEAMFITTERS, LOC. 638
Enterprise Association of Steam,- Hot Water,
Hydraulic , Sprinkler, Pneumatic Tube, Ice
Machine and General Pipefitters of New York and
Vicinity , Local Union No. 638 of the United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada , AFL-CIO and HV & AC
Contractors ' Association, Inc. Case 29-CB-339
March 15, 1968
DECISION AND-ORDER
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On December 7, 1967, Trial Examiner Melvin
Pollack issued his Decision in this proceeding, find-
ing that Respondent had engaged in and was engag-
ing in certain unfair labor practices, and recom-
mending that it-cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and the Charging Party filed a reply.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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,- and the entire record in
this case, including the espondent's exceptions
and Charging Party's reply, 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 Recom-
mended Order of the Trial Examiner and- hereby
orders that the Respondent, Enterprise Association
of Steam, Hot Water, Hydraulic, Sprinkler, Pneu-
matic Tube, Ice Machine and General Pipefitters of
New York and Vicinity, Local Union No. 638 of
the United Association of Journeymen and Ap-
prentices `of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL-CIO, its of-
ficers, agents, and representatives, shall take the ac-
tion set forth in the Trial Examiner's, Recom-
mended Order.
170 NLRB No. 44
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
385
MELVIN POLLACK, Trial Examiner: Upon a charge
filed on March 20, 1967, by HV &, AC Contractors'
Association, Inc., herein called the Association, an
amended complaint was'issued on July 31, 1967, al-
leging that the Respondent Union had violated Sec-
tion 8(b)(3) of the National Labor Relations Act,
as amended, by refusing to sign.a written agreement
with the Association embodying terms and condi-
tions of employment agreed on by the- parties, by
bargaining directly and individually with members
of the Association, and by causing the employees of
contractor John Grace & Co., Inc., to stop work in
order to force that contractor and the other mem-
bers of the Association to bargain individually with
the Union.
A hearing was held before me at Brooklyn, New
York, on September 18, 1967. At the conclusion of
the hearing, the General Counsel presented oral ar-
gument. Briefs filed by the General Counsel, the
Association, and the Respondent Union have been
carefully considered. Upon the entire record in this
case and my observation of the demeanor of the
witnesses as they testified, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE ASSOCIATION; THE LABOR
ORGANIZATION INVOLVED
The members of the- Association, a New York
corporation,- are employers engaged in-the installa-
tion and servicing of heating, ; ventilating, and air-
conditioning equipment. During the year preceding
the, issuance of the complaint, each member of the
Association received from out-of-State suppliers
goods and materials valued- in excess of $50,000. I
find that the Association and each of its members
are employers engaged: in commerce within the
meaning of Section 2(2), (6), ,and (7) of the Act.
The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
The Union is the collective-bargaining represen-
tative of steamfitters employed by members of the
Association -and also represents .steamfitters -em-
ployed by the Mechanical Contractors Association
of New York, Inc. Prior to the events described
below, the Association had no collective-bargaining
agreement with the - Union but its „members ob-
served the terms of a trade agreement effective July
1, 1961-June-30, 1966, between the Union and the
Mechanical Contractors Association: In February
1966, the Union and the Mechanical Contractors
Association began negotiations on a new contract.
350-999 0 - 71 - 26
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 20, 1966, and again on April 27, the As-
sociation's attorney, Erwin Popkin, sent letters to
President Thomas J. Murray of the Union
requesting that the Union set the "date, time, and
place" for negotiations on a contract to be effective
July 1, 1966, and that the Union submit to the As-
sociation in advance of negotiations its proposed
changes or modifications "to the present collective-
bargaining agreement." By letter dated May 25,
1966, Secretary-Treasurer James A. Mulligan of
the Unioil advised Attorney Popkin that the Union
would "be pleased to negotiate with you concern-
ing an agreement to take effect on July 1st, 1966,"
and that the meeting had been set for 11 a.m., June
2, at the Union's office. Mulligan enclosed with the
letter a copy of the Union's proposals to the
Mechanical Contractors Association for modifica-
tion of the contract expiring on June 30, 1966. Fol-
lowing additional correspondence, a meeting was
set for June 28 at the Union's office.
At the June 28 meeting, Joseph Kenner, Sidney
Walzer, and John Vittiglio of the Association met
with Robert Kennedy, John J. Wilcox, and Cor-
nelius Dunleavy of the Union. The Association
representatives said they "had come down to
negotiate" and that they "were fully empowered to
do so." The union -men said they were "the
negotiating committee" for the Union. The As-
sociation representatives inquired about the
Union's negotiations with the Mechanical Contrac-
tors Association and were advised that the Union
had withdrawn its demand for a 4-day week. The
union representatives asked if the Association was
interested in an industry promotion fund. The As-
sociation representatives replied that the members
of the Association had been discussing the matter,
that they thought it was an excellent idea, and that
the Association would have no objection "if such a
fund would be incorporated in the contract." The
Association representatives suggested that the
parties "get into a more detailed discussion." -Fol-
lowing an interruption, the union representatives
said the negotiations with the Mechanical Contrac-
tors Association had been underway for some time,
that an agreement would probably be reached soon,
and that it was "pointless" to discuss the same
things with the Association at this late date. A
union representative asked if the Association would
accept any agreement reached with the Mechanical
Contractors Association. After a caucus, the As-
sociation representatives said they would accept
"the same contract." The parties agreed they had a
"deal" and shook hands.
On July 8, 1966, Secretary-Treasurer Mulligan of
the Union sent the Association a letter transmitting
a copy of a memorandum of agreement negotiated
by Respondent and the Mechanical Contractors As-
sociation on July 6, 1966. The memorandum of
agreement, effective until June 30, 1969, made cer-
tain changes in the 1963-1966 contract and pro-
vided that "All other items of the present Trade
Agreement remain as is." The letter of transmittal
stated:
In accordance with our understanding, the
enclosed two page copy of a memorandum of
agreement embodying the terms and condi-
tions of the new Trade Agreement negotiated
by our Union and Mechanical Contractors As-
sociation of New York, Inc., shall be binding
between our respective Associations until a
more formal agreement is drawn and executed.
Kindly sign the enclosed copy of this letter,
indicating your acceptance of the terms of the
above mentioned agreement, and return same
to me.
On July 18, 1966, the Association returned the
memorandum agreement signed by its president,
Joseph Kenner, together with letters from each of
the Association's members authorizing the Associa-
tion to negotiate a collective-bargaining agreement
with the Union.
The Association thereafter sent the Union a se-
ries of letters requesting the Union to forward a for-
mal collective-bargaining agreement for execution.
In February 1967, Neil Carty, a union delegate,
telephoned Jules Nestle, who had succeeded Joseph
Kenner as the Association's president in October
1966, at his home. Nestle said the Association
wanted the formal agreement referred to in the
Union's letter of July 8 transmitting the memoran-
dum of agreement between the Union and the
Mechanical Contractors Association. 'Carty
requested a meeting at which the Union could ex-
plain its objections to a formal contract with the
Association. Nestle replied in effect that the As-
sociation felt that it needed the contract which it
had agreed upon with the Union.
On March 8, 1967, John J. Tracey, the Union's
business agent, sent each member of the Associa-
tion a letter requesting that it sign and return the
two copies of the Union's "Working Agreement,"
effective July 8, 1966, to June 30, 1969, enclosed
with the letter. By letter dated March 10, 1967, and
at a meeting with the Union later in March, the As-
sociation took the position that it had a contract
with the Union and there was no reason for its
members to sign individual contracts. The Union's
representatives insisted that it would be to the long-
term advantage of the Association's members not
to push the signing of a, formal - agreement by the
Union and the Association. The parties agreed to
discuss the matter again at a time and place to be
fixed by the Union.
On Thursday, April 20, 1967, Walter Gould, a
union delegate , told President John Vittiglio of the
John Grace Company that,he would pull a work
stoppage at the Company's - Meadowbrook's
Hospital jobsite unless Vittiglio signed the in-
dividual "Working Agreement" mailed to him. Vit-
tiglio refused to sign . Gould visited the Meadow-
brook jobsite on Friday morning, April 21, and the
union men stopped work. At a meeting later that
ENTERPRISE ASSN. OF STEAMFITTERS, LOC. 638
day, Business Agent Tracey told the Association's
representatives that unless its members signed in-
dividual contracts by Wednesday, April 26, the
Union's men would be pulled off the Association
members' jobsites.
The Grace Company's employees returned to
work on Monday, April 24. The next day, Delegate
Cummings of the Union advised President Nestle of
the Association that his employees would not re-
port to work the next day unless he signed the inde-
pendent contract previously sent to him. No work
stoppage occurred, however, as the, New York
State Supreme Court of Nassau County enjoined
the Union from pulling out the employees of the
Association's members.
B. Analysis and Conclusions
The Union advised the Association on May 25,
1966, that it would engage in bargaining negotia-
tions with the Association; on June 28, the Associa-
tion agreed to a union proposal that it accept as its
contract any agreement reached by the Union with
the Mechanical Contractors Association; and on
July 8, the' Union forwarded to the Association for
acceptance a memorandum of agreement on a new
contract reached with the Mechanical Contractors
Association, which "shall be binding between our
respective Associations until a more formal agree-
ment is drawn and executed." The Association
signed and returned the memorandum of agree-
ment on July 8, but the Union thereafter refused
the Association's requests for a formal contract, in-
sisted 'that the members of the Association execute
individual contracts, and caused a work stoppage at
a jobsite of the John Grace Company in order to
force this Company and other members of the As-
sociation to enter into individual contracts with the
Union.
I find no merit in the Union's contention that its
representatives had no authority to meet and
negotiate a contract with the Association's
representatives on June 28 or thereafter. The
Union relies on a motion approved at a union meet-
ing on May 25, 1966, that no action should be
taken by its trade board on the Association's
request for contract negotiations "until discussed
by and approved by the body." At a June 15 meet-
ing, however, the membership passed a motion "to
invite the (Association] to a meeting with our trade
board and possibly the Mechanical Contractors."
As this action was taken after a "long discussion"
on whether the Association should be "recognized
to negotiate our new agreement," I find that the
union membership authorized its trade board to
enter into contract negotiations with the Associa-
tion . In any event, the Union's secretary-treasurer
invited the Association to bargaining negotiations,
the meeting of June 28 was held at the Union's of-
fices, the Union's representatives at this meeting
held themselves out as having authority to negotiate
387
a contract with the Association , and the Union's
secretary-treasurer subsequently transmitted the
memorandum of agreement reached with the
Mechanical Contractors Association to the As-
sociation for its acceptance . 4 find from these cir-
cumstances that the Union 's representatives
reached a binding agreement with the Association
on behalf of the Union . Cf. International Union,
United Automobile , Aircraft and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO (Mare-
mont Automotive Products), 134 NLRB 1337,1338.
Accordingly, I conclude that by failing and refusing
after July 18, 1966, to execute a "more formal
agreement "embodying the terms of the July 8
memorandum agreement , by attempting to bypass
the Association and deal directly and individually
with its members , and by engaging in a work stop-
page in order to force the members of the Associa-
tion to sign individual contracts , the Union has
refused to bargain within the meaning of the Act,
thereby violating Section 8 (b)(3).
CONCLUSIONS OF LAW
1. The Association and each of its members are
employers within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Union has refused to bargain with the As-
sociation within the meaning of Section 8(b)(3) of
the Act.
4. The aforesaid unfair labor practice affects
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
It having been found that the Union has engaged
in unfair'labor practices within the meaning of Sec-
tion 8(b)(3) of the Act, my Recommended Order
will require that it cease and desist therefrom and
take certain affirmative action designed to effectu-
ate the policies of the Act.
Upon the basis of the foregoing findings'and con-
clusions and the entire record in this case, and pur-
suant to Section 10(c) of the National Labor Rela-
tions Act, as amended, there is hereby issued the
following:
RECOMMENDED ORDER
The Respondent Union, its officers, agents, and
representatives shall:
1. Cease and desist from refusing upon , the
request of the Association to prepare, execute, and
submit to the Association for its acceptance a for-
mal contract embodying the terms and conditions
of employment agreed on by the parties in the
memorandum agreement of July 8, 1966; from
dealing or attempting to deal directly and in-
dividually with members of the Association in
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
derogation of I S O bligation to bargain with the As-
sociation; from threatening to engage in or engag-
ing in work stoppages in order to force members of
the Association to sign individual contracts; and
from in any like or related manner refusing to bar-
gain. with -the Association in accordance with the
requirements of the Act.
2. Take the following affirmative action which I
find will effectuate the- policies of the Act:
- (a) Upon the request of the Association,
forthwith prepare, execute, and submit to the As-
sociation for its acceptance a formal contract, em-
bodying the, terms and conditions of employment
agreed upon by the parties in the memorandum
agreement of July 8, 1966.
(b) Post at the Union's offices-and meeting halls,
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Re-
gionalDirector for Region 29, after being duly
signed by an official representative, shall be posted
by it immediately upon receipt thereof, and, be
maintained by it for 60 consecutive days thereafter,
in conspicuous places,. including all places where
notices to its members are customarily posted.
Reasonable steps shall be taken by the Union to in-
sure that said notices are not altered, defaced, or
covered by any other material.
(c) Mail to the Regional Director for Region 29
signed copies of the notice for posting by members
of the Association, said Employers being willing, at
all locations- where notices to their employees are
customarily posted.
(d) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith!
' In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of ,a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a, United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order-."
I In the event that this Recommended Order, is adopted by the Board, this
provision shall be modified to read- "Notify said Regional Director, in writ-
ing, within 10 days from the date of this Order, what steps Respondent has
taken to-comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF ENTERPRISE
ASSOCIATION OF STEAM,'HOT WATER, HYDRAULIC,
SPRINKLER , PNEUMATIC TUBE, ICE MACHINE AND
GENERALPIPEFITTERS OF NEW YORK AND VICINITY,
LOCAL UNION No. 638 OF THE UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the-Na-
tional Labor Relations Act, as amended, we hereby
notify you that:
WE WILL, if requested to do so by HV & AC
Contractors' Association, Inc., prepare, ex-
ecute, and submit to said Association for its ac-
ceptance a formal contract embodying the
same terms and conditions of employment
agreed upon on July 8, 1966, with the
Mechanical Contractors Association of New
York, Inc.
WE WILL NOT attempt to bargain directly and
individually with the members of said Associa-
tion and WE WILL NOT threaten or engage in
work stoppages to force members of the As-
sociation to sign individual contracts, in disre-
gard of our obligation- to bargain with the As-
sociation.
Dated By
ENTERPRISE ASSOCIATION
OF STEAM, HOT WATER,
HYDRAULIC, SPRINKLER,
PNEUMATIC TUBE, ICE
MACHINE AND GENERAL
PIPEFITTERS OF NEW
YORK AND VICINITY,
LOCAL UNION No. 638 OF
THE UNITED ASSOCIATION
OF JOURNEYMEN AND
APPRENTICES OF THE
PLUMBING AND
PIPEFITTING INDUSTRY OF
THE UNITED STATES AND
CANADA, AFL-CIO
(Labor Organization)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If members have any question concerning this
notice or compliance with its provisions, they may
communicate -directly with the Board's, Regional
Office, ,16 Court Street, Fourth Floor Brooklyn,
New York 11201, Telephone 596-3535.