W.L. Rives Co.

National Labor Relations Board - Board Decisions

Apr 13, 1962

136 N.L.R.B. 1050 (N.L.R.B. 1962)

1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to him or to the Union, Respondent has engaged in unfair labor practices proscribed
by Section 8 (a) (5) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
the Act.
4. The Respondent has not violated Section 8 (a)(3) of the Act by discharging
Orwell Wolford.
[Recommendations omitted from publication.]
W. L. Rives Company and Sheet Metal Workers ' International
Association , AFL-CIO
W. L. Rives Company and W-M Corporation and Sheet Metal
Workers' International Association , AFL-CIO and Local 234,
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, Party to the Contract . Cases Nos. 12-CA-
1707, 12-CA-1743, and 1U-CA-1766. April 13, 1962
DECISION AND ORDER
On October 10, 1961, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that W. L. Rives Company and W-M Corporation' had not
engaged in and were not engaging in certain unfair labor practices
and recommending that the complaint be dismissed, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
both the General Counsel and Rives filed exceptions to the Inter-
mediate Report, and the General Counsel filed a supporting brief.
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 Inter-
mediate Report, the exceptions, the brief, and the entire record in the
case, and finds merit in exceptions filed by the General Counsel to the
Intermediate Report. Accordingly, the Board adopts only those
findings, conclusions, and recommendations of the Trial Examiner
consistent herewith.
Rives is engaged in the manufacture and assembling of stainless
steel pipe at its plant in Jacksonville, Florida. A large part of the
potential market for this pipe is in the construction industry. Prior
to 1957, Rives sold much of its made-to-order assembled pipe to
plumbing and general contractors whose employees, usually repre-
sented by the Pipefitters,2 installed the pipe at the jobsite; Rives it-
self does no installation. The contracts of these customers almost
I Herein separately called Rives and W-M, respectively, and collectively referred to as
the Respondent.
2 United Association of Journeymen and Apprentices of the Plumbing and Pipefltting
Industry of the United States and Canada.
13,6 NLRB No. 84.
W. L. RIVES COMPANY 1051
uniformly specify that the pipe supplied to them must bear the UA
(Pipefitters) label, which is proof that the assembling of the pipe at
the shop was done by members of the Pipefitters.
Until 1957, Rives was able to secure permission from the Pipefitters
to use its label, although Rives' employees, numbering about 35, were
then unorganized. In November 1957, the Board conducted a repre-
sentation election at the Rives plant, in which both the Sheet Metal
Workers Local 571, hereinafter called SMW, and Pipefitters Local
234 participated. The employees selected the SMW as their repre-
sentative, and SMW was certified by the Board. Shortly thereafter,
the Pipefitters withdrew permission from Rives to use the UA label.
In August 1960, Walter L. Rives approached the business manager
of Pipefitters Local 234 and offered to sign a contract with that union
covering employees at a new, plant to be constructed next door to
Rives' existing plant and operated in the name of W-M, at which
plant the Pipefitters-represented employees would be assigned the
assembling of pipe for jobs where the UA label was required 3 On
August 16, Walter Rives signed a license agreement with the Pipe-
fitters which permitted affixing the UA label to the pipe assembled
in the new plant provided he signed a bargaining contract with the
Pipefitters. In September, construction of the new plant was com-
menced. On September 16, W-M signed a contract with Pipefitters
Local 234 to cover work at the new plant, although W-M had no
employees at the time.4 The new plant began production on Oc-
tober 19, and assembly work of the type which had been performed
by employees at the old plant was assigned to members of Pipefitters
Local 234 working at the new plant. About this time, Respondent
notified SMW of its agreement with the Pipefitters. On October 20,
the Rives plant employees voted on whether to strike because of the
establishment of the W-M plant and assignment of assembly work to
the Pipefitters. The votes were not counted at that time, but were
kept in a sealed envelope until October 27 when, following the SMW's
filing of an unfair labor practice charge, the ballots were opened and
found to be in favor of a strike. The strike then began at the Rives
plant. On November 10, Respondent notified the 36 strikers named
in the complaint that their jobs had been filled and that they were
discharged .5
The complaint alleges violations of Section 8(a) (1), (2), (3), and
(5) on the basis of Respondent's conduct in connection with the
s Walter Rives and his wife are president and secretary , respectively . of both companies
and majority stockholders in each. Walter Rives determines labor nolicies and conducts
negotiations for both companies Upon the entire record , we find that Rives and W-M
constitute a single employer under the Act and are jointly responsible for the unfair labor
practices found hereinafter.
This contract was later extended from July 1 to September 1, 1961.
e These dischargees included Paul Thomas Papevius , Jr., Edward Pickett, Hilton White,
and those listed in Appendix A attached hereto.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establishment of the W-M plant. It also alleges that Respondent
violated Section 8 (a) (1) and (3) of the Act by discharging the Rives
plant strikers. In the former connection, the Trial Examiner found
that an opinion by the Court of Appeals for the Fifth Circuit deny-
ing enforcement of a Board Order against Rives in an earlier case 6
precluded any such unfair labor practice findings being made against
Respondent because of res judicata or because the court's decision
constitutes the law of this case. In any event, for reasons given in
the Intermediate Report, he was of the opinion that a dismissal of the
entire case was warranted on the merits.
We do not agree with the Trial Examiner that the doctrine of the
"law of the case" or res judicata bars our' consideration of any part of
this case on the merits. Thus, this is a wholly new and separate pro-
ceeding based on charges which relate to matters occurring more than
2 years after the events which were the subject matter of the earlier
case. The complaint alleges an 8(a) (2) violation, which was not
alleged in the prior case, based upon the execution of a prehire agree-
ment, an occurrence not present in that case. In addition, there are
significant factual differences in the cases as to the method employed
by Respondent to avoid trouble with the Pipefitters, and the "pressing
crisis" which the court found was the motivating reason for Rives'
conduct in the earlier case did not exist during the critical period in
this case. Under all the circumstances, we believe we are not precluded
by the court's opinion from considering this case on the merits.
Turning to the facts of the case, we find that, prior to the execution
of the prehire agreement with Pipefitters Local 234 and before the
opening of the W-M plant, all assembly work was performed by
Rives' employees and SMW was the certified and recognized bar-
gaining representative of those employees. Subsequently, the Pipe-
fitters made its entrance on the scene upon the invitation of Walter
Rives, the W-M plant commenced operations, and work of the type
which had theretofore been performed by Rives' employees was trans-
ferred to the newly hired employees in the 117-M plant. SMW ceased
to be recognized as representative of all employees engaged in assem-
bling pipe and Pipefitters Local 234 was recognized by Respondent
for the employees engaged. in such work in the W-M plant. All this
was accomplished by Respondent without giving notice to SMW of
the contemplated action and affording it an opportunity to bargain
therewith. The result of Respondent's unilateral conduct was to de-
prive employees represented by SMW of work of the type which they
had previously performed because they were members of the "wrong"
union, and to transfer such work to employees who were members of
Pipefitters Local 234, the intended purpose being that Respondent
8288,F. 2d 511 , denying enforcement of 125 NLRB 772
W. L. RIVES COMPANY 1053
might thereafter deal with Pipefitters Local 234 respecting that work.
Clearly, Respondent's conduct had the foreseeable effect of discourag-
ing membership in SIVIW and encouraging membership in Pipefitters
Local 234 and was in derogation of the representative status of SMW.
It was thus violative of Section 8(a) (3) and (5) of the Act. By its
execution of the prehire agreement with the Pipefitters Local 234 as
described above, Respondent also manifestly violated Section 8 (a) (2)
of the Act.'
In finding these unfair labor practices, we are of course not unmind-
ful of the predicament which continued to confront Respondent in
1960 through no fault of its own. Without a UA label, its pipe was
unacceptable in the construction industry and its ability to expand
the scope of its business was thereby affected. While fully aware of
these facts, we are nevertheless unable to find legal justification for
the solution to its problems which Rives devised. The party or parties
responsible for Respondent's predicament are not respondents before
us and we do not presume to prejudge their actions but, if they acted
in a manner inconsistent with the Act, there were remedies under the
Act available to Respondent which might have eased its situation.
In any event, Respondent was not privileged to pursue the course of
action it decided upon. The Act plainly outlaws such discrimination
against employees as was practiced by Respondent as well as the failure
to bargain with SMW; as written, it makes no allowances for the
circumstances which attended Respondent's actions. We must there-
fore hold Respondent in violation of the Act as noted above.
There remains for consideration the Respondent's discharge of the
striking employees. The Trial Examiner found no violation on this
aspect of the case, for, in his view, the strike was an economic strike
and all strikers were replaced prior to November 10, when they were
notified that they had been terminated. However, as the facts recited
above demonstrate, the strike was called on account of the establish-
ment of the W-M plant, and the assignment of assembly work to the
Pipefitters, which conduct we have found was unlawful. It accord-
ingly follows that the strike was an unfair labor practice strike, the
strikers were unfair labor practice strikers, as unfair labor practice
strikers they were not subject to replacement, and Respondent's dis-
charge of them violated Section 8(a) (3) of the Act.
THE REMEDY
Having found that the Respondent has engaged in the unfair labor
practices set forth above, we shall order that it cease and desist there-
from and take certain affirmative action designed to effectuate the
policies of the Act.
7A 0 Smxth Corporation, 122 NLRB 321
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Respondent refused to bargain with SMW in
violation of the Act, we shall order that, upon request, Respondent
bargain with that Union with respect to the certified unit.
It having been found that Respondent unlawfully recognized, and
entered into a collective-bargaining agreement with, Pipefitters Local
234, we shall order the Respondent to withdraw and withhold all
recognition from that Union unless and until it is certified as the
exclusive bargaining representative of Respondent's employees in an
appropriate unit.
It having been found that the dischargees were on strike at the time
of their discharge, they are entitled to backpay from the date they
abandoned the strike and became available for employment. The
record shows that complainants Papevius and White abandoned the
strike when they applied for reinstatement 2 days after receiving their
letter of termination of November 10, 1960, and that complainant
Pickett abandoned the strike when he applied for reinstatement on
November 16, 1960. Of these discharges, White alone was rehired,
on approximately June 22, 1961. We shall therefore order that Re-
spondent reinstate Papevius and Pickett and make them whole for
any loss of pay suffered since their application for reinstatement. In
White's case, we shall order backpay alone, to run from the date he
applied for reinstatement to the date of his reinstatement. As for the
remaining dischargees named in the complaint, there is no evidence
that they have given up the strike and are available for employment.
We shall therefore order that the Respondent, upon application, offer
such remaining strikers reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, dismissing, if necessary, any employees hired to
replace them. We shall also order that, in the event of Respondent's
refusal, if any, to reinstate them upon request, the Respondent make
whole those dischargees, by payment to each of them of a sum of
money equal to that which he would normally have earned as wages
during the period from 5 days after the date on which he applies for
reinstatement to the date of Respondent's offer of reinstatement,8 such
loss to be computed in the manner set forth in F. W. Woolworth, Com-
pany, 90 NLRB 289.
Finally, it having been found that Respondent discriminated
against Rives' employees by transferring assembly work to others un-
der the described circumstances, we shall order that Respondent make
whole such employees for any loss of wages they may have suffered
as a result of the discrimination against them, such loss also to be
computed in the manner set forth in F. W. Woolworth Company,
supra. ^_
s See Central Oklahoma Milk Producers Association, 125 NLRB 419, enfd 285 F. 2d
495 (CA. 10).
W. L. RIVES COMPANY
CONCLUSIONS OF LAW
1055
The Board, upon the basis of the foregoing facts and the entire
record, concludes as follows :
1. Respondent is and at all times relevant herein was engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Unions herein involved are labor organizations within the
meaning of the Act.
3. By refusing to bargain collectively with Sheet Metal Workers
International Association, AFL-CIO, the certified bargaining repre-
sentative of employees of Respondent, the Respondent has engaged
in unfair labor practices within the meaning of Section 8(a) (5) of
the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of employees, thereby discouraging membership in Sheet Metal
Workers International Association, AFL-CIO, and encouraging mem-
bership in Local 234, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a) (3) of the Act.
5. By unlawfully recognizing and entering into a collective-
bargaining agreement with Local 234, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a) (2) of the
Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act, the Respond-
ent has engaged in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
ORDER
Upon the entire record in the case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, W. L. Rives Com-
pany and W-M Corporation, its officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Discouraging membership in Sheet Metal Workers Interna-
tional Association, AFL-CIO, or encouraging membership in Local
234, United Association of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States and Canada, AFL-
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO, or in any other labor organization of its employees, by discrimi-
nating in regard to hire or tenure of employment or any term or
condition of employment.
(b) Refusing to bargain collectively with Sheet Metal Workers
International Association, AFL-CIO, as the exclusive bargaining
representative of its employees in the certified unit with respect to
rates of pay, wages, hours of employment, or other conditions of em-
ployment, and from making unilateral changes with respect thereto
without consulting or negotiating with the Union or otherwise der-
ogating from the certified authority of the Union.
(c) Recognizing Local 234, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
'States and Canada, AFL-CIO, as the representative of its employees
for the purpose of collective bargaining unless and until such labor
organization shall have been certified by the National Labor Relations
3oard as the exclusive bargaining representative of its employees in
an appropriate unit.
(d) Giving effect to any collective-bargaining agreement with
Local 234, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO, unless and until said labor organization shall have been
certified by the National Labor Relations Board.
(e) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities.
1 2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Paul Thomas Papevius, Jr., and LaVerne Pickett im-
mediate and full reinstatement to their former or substantially equiv-
alent positions without prejudice to their seniority and other rights
and privileges, and make them whole for any loss of pay suffered as
a result of the discrimination against. them, in the manner set forth
in the section of this Decision entitled "The Remedy," dismissing, if
necessary any employee hired to replace them.
(b) Make whole Hilton White and Respondent's employees at the
Rives plant for any loss of pay they may have suffered as t result of the
discrimination against them, in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Upon application, offer all employees listed in Appendix A
-,ittached hereto immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority
.and other rights and privileges in the manner set forth in the section
W. L. RIVES COMPANY 1057
of this Decision entitled "The Remedy," dismissing, if necessary, any
employees hired to replace them, and make each of them whole for any
loss of pay suffered by him as a result of its failure to reinstate hiln
within 5 days after his unconditional application for reinstatement.
(d) Upon request, bargain collectively with Sheet Metal Workers
International Association, AFL-CIO, as the exclusive bargaining
representative of all employees in the certified unit.
(e) Withdraw and withhold recognition from Local 234, United
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO, as
the representative of its employees unless and until such labor organi-
zation shall have been certified as the exclusive bargaining representa-
tive of its employees in an appropriate unit.
(f) Preserve and, upon request, make available to the Board and its
agents, for examination and copying, all payroll records, social secur-
ity payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amounts of backpay due and
the rights of employment under the terms of this Order.
(g) Post at its plants at Jacksonville, Florida, copies of the notice
attached hereto as "Appendix B." 9 Copies of said notice, to be
furnished by the Regional Director for the Twelfth Region (Tampa,
Florida), shall, after being duly signed by the Respondent or its rep-
resentative, be posted by the Respondent immediately upon receipt
thereof, and maintained by it for 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(h) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
9In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
Leonard Pharr Wesley Thompson Al Connors
John Bradley Robert Yaw Albert Connors
'Carl Baker Charles White William Sweat
John Hauser Joe Anderson Walter Koch
Larry Russ T. J. Anderson George Hacker
Larry Kissame Andrew Cain Marian Pickett
Donald Johnson George Deas George Chitty
Robert Thacker Carl Frey Jessie York
Carrol Thornton Byron Hitchcock Bobby Coleman
Kirby Eddins Russell Hitchcock Willis H. Wilson
William Wiggins Clifford Mattox Joseph Taylor
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO 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, we hereby notify our employees that :
WE WILL NOT discourage membership in Sheet Metal Workers
International Association, AFL-CIO, or encourage membership
in Local 234, United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO, or in any other labor organization of
our employees, by discriminating in regard to hire or tenure of
employment or any term or condition of employment.
WE WILL NOT recognize, and hereby withdraw and withhold
recognition from, Local 234, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO, as the exclusive repre-
sentative of our employees for the purposes of collective bargain-
ing unless and until said labor organization shall have been
certified by the National Labor Relations Board as the exclusive
bargaining representative of our employees in an appropriate unit.
WE WILL, upon request, bargain collectively with Sheet Metal
Workers International Association, AFL-CIO, as the exclusive
bargaining representative in the certified unit with respect to
rates of pay, wages, hours of employment, or other conditions of
employment.
WE WILL offer to Paul Thomas Papevius, Jr., and LaVerne
Pickett immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority
and other rights and privileges, and make them whole for any
loss of pay suffered as a result of the discrimination against them.
WE WILL make whole Hilton White and our employees at the
Rives plant for any loss of pay suffered as a result of our dis-
crimination against them.
WE WILL offer to all employees named in Appendix A immedi-
ate and full reinstatement, upon application, to their former or
substantially equivalent positions, without prejudice to their se-
niority and other rights and privileges, and make each whole for
any loss of pay suffered as a result of our failure to reinstate him
within 5 days after his application.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
W. L. RIVES COMPANY 1059
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any and all such activities.
W. L. RIVES
`V-M CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 112 East Cass Street, Tampa 2, Florida, Telephone Number
223-4623, if they have any question concerning this notice or compli-
ance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges filed by the Charging Party, herein called the Sheet Metal
Workers or the Union , which were duly consolidated , the General Counsel of the
National Labor Relations Board , by the Regional Director for the Twelfth Region
(Tampa, Florida ), issued his complaint dated February 17, 1961 , against W. L.
Rives Company and W-M Corporation , herein called Rives and W-M, respectively,
and collectively the Respondents or the Companies , alleging that the Respondents
constitute a single integrated business enterprise and have engaged in and are en-
gaging in unfair labor practices within the meaning of Section 8 ( a)(1), (2), and
(3), and (5) of the National Labor Relations Act, as amended , herein called the
Act. The answer admits certain allegations of the complaint but denies the com-
mission of any unfair labor practices.
Pursuant to notice a hearing was held before the duly designated Trial Examiner
on July 17 , 18, and 19 , 1961, at Jacksonville, Florida . All parties were present
and represented at the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , to introduce relevant evidence , to present oral
argument , and to file briefs . Counsel for the Respondents submitted a brief about
August 18 , which I have fully considered .1,
Upon the entire record and from my observation of the witnesses , I make the
following:
i On August 18, counsel for the Respondents filed a motion to correct the record and on
September 7, the General Counsel submitted a motion containing his proposed corrections
thereto These motions are made part of the record and designated as Trial Examiner's
Exhibits Nos. 1 and 2, respectively. On September 22, counsel for the Respondents filed
his opposition to specified corrections proposed by the General Counsel, which opposition
is admitted in evidence as Trial Examiner 's Exhibit No 3. I grant both of these motions,
except paragraphs 25 and 46 of the General Counsel's motion Paragraph 25 would sub-
stitute new and different language for the answer given by Wilson in response to a
question whether he indicated to the Company the reason for the strike. I do not believe
the transcript is entirely accurate in this respect for, according to my notes , Wilson stated
the pickets carried a sign stating the Company was unfair and this testimony does not
appear in the transcript . Again, I cannot recall Wilson saying the strike was an economic
one as set forth in the record Despite the foregoing, I do not believe it would be proper,
in view of the objection , to correct the record in the manner suggested by the General
Counsel. Paragraph 46 relates to a comment allegedly made by the General Counsel and
as it has no bearing on the issues herein the transcript may stand as is I also have cer-
tain corrections and comments concerning the transcript which are received in evidence
as Trial Examiner's Exhibit No. 4
641795-63-vol . 136-68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Rives, a Florida corporation, maintains its principal office and place of business
at Jacksonville, Florida, where it is engaged in the fabrication of sheet metal
products. During the year 1960, Rives, in the course and conduct of its business,
shipped goods valued in excess of $50,000 from its place of business directly to
points outside the State of Florida.
W-M, a Florida corporation, maintains its principal office and place of business
at Jacksonville, Florida, where it is engaged in the fit-up of pipe. W-M admits
that within the last 12 months of its operations it shipped goods valued in excess
of $50,000 from its place of business directly to places outside the State of Florida.
I find each of the Respondents is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Sheet Metal Workers and Local 234, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO, Party to the Contract, herein called Pipefitters, are labor organizations
within the meaning of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
For many years Rives has been engaged in the manufacture or fabrication of
stainless steel pipe and other custom-made products and the fit-up or assembly of
these parts. These operations were performed in the Jacksonville plant. However,
the installation of its finished products at the jobsite was, and is, performed by the
customer or mechanical contractors, not by Rives. Since the installation of Rives'
products was, and is, basically within the building construction industry, hence under
the jurisdiction of the Pipefitters, the Pipefitters claimed the right to decline to in-
stall work not bearing its label, herein referred to as the UA label, that is, work
not fitted or assembled by its members or having its approval. In view of this situa-
tion, customers specified in instances that Rives' products bear the UA label. The
principal controversy therefore centers on Rives' use of the UA label, although
other issues are also involved.
B. The prior proceedings
Following statutory proceedings initiated by the Sheet Metal Workers, the Board
on March 24, 1959, issued its Decision and Order (125 NLRB 772), wherein it
found that Rives had engaged in and was engaging in unfair labor practices in
violation of Section 8(a)(1), (3), and (5) of the Act.2 Thereafter, the Circuit
Court of Appeals for the Fifth Circuit denied the Board's petition for enforcement
of its Order.3
The facts as found in the prior case and as briefly reviewed at this hearing may
be summarized as follows:
Although Rives had no agreement with the Pipefitters, and therefore was not
entitled to use the UA label, it experienced no real difficulty in having its products
accepted for installation, at least until about August 1958, for the reason that
J. W. Bryan, business agent for Local 234 of the Pipefitters, "cleared" the work at
Rives' request.
Meantime about November 15, 1957, a representation election was conducted
under the supervision of the Board among Rives' production and maintenance em-
ployess (with the usual exclusions), and a majority of the employees selected and
designated the Sheet Metal Workers, Local 571, as their statutory representative .4
Thereafter, Rives and the Sheet Metal Workers engaged in contract negotiations and
on September 25, 1958, following a strike in July, the parties executed an agree-
ment effective from October 1, 1958, to September 30, 1959.
2 During the present hearing the General Counsel proposed a stipulation that the record
in the previous case be made part of this record While counsel for the Respondents de-
clined the offer at that time, he now, in his brief, joins in this stipulation.
4 288 F. 2d 511 On June 6, 1961, the court entered its order, without opinion, deny-
ing the Board's petition for rehearing -
4 Case No 12-RC-192 The petition was filed by the Sheet Metal Workers and the
Pipefitters intervened therein Of the 27 eligible employees in the unit, 26 valid ballots
were cast; 14 for the petitioner, 2 for the intervenor, and 10 against
W. L. RIVES COMPANY 1061
The Subcontracting of Work by Rives
In the spring of 1958, Rives bid on a large job involving expansion of a paper-
mill of Bowaters Southern Paper Corporation at Calhoun, Tennessee. The instal-
lation of this work was to be performed by Jamison Company, Inc., mechanical
contractors, whose employees at that location were represented by Local 43 of the
Pipefitters. Bowaters contract specified that the pipe bear the UA label or have
UA approval. W. L. Rives, president of Rives, discussed the matter with the Sheet
Metal Workers, but they could not give him any assurance that the work would
be accepted by the Pipefitters. Rives then contacted Bryan who said that the work
would be acceptable. Rives was awarded the contract, and purchased some $90,000
worth of materials with which to start the work. Thereafter Bryan advised Rives
that his prior assurance of UA acceptance could not be carried out because "Wash-
ington" would not permit it to be done. Efforts on the part of Rives to adjust the
matter, including appeals to and meetings with the unions involved, were
unsuccessful.
Faced with this situation, plus the fact that the contract contained a penalty
clause for nonperformance, Rives subcontracted the fit-up work on the Bowaters
job to Jamison, on a cost-plus basis, so that the fit-up could be performed by mem-
bers of the Pipefitters and thereby secure the UA label or approval. This occurred
about June 16, 1958, and the decision, as well as the reasons therefor, were made
known to the employees at a meeting in the plant . When the employees expressed
concern for their jobs, they were assured the arrangement would provide more work
and job security for them.
About June 18, Jamison commenced the fit-up or assembly work on the Bowaters
job, using members of the Pipefitters. This work was performed in a designated
area in the plant, which was marked off by a red line painted on the floor, and
employees of Rives who had previously worked in that area were moved to another
part of the plant. In this manner Jamison proceeded to do all assembly work
requiring the UA label. Again, in September and October, when Rives obtained
contracts for two other projects. The Grinnel Company and the McGinnis Com-
pany, Jamison performed the assembly work on this contract in substantially the
same manner as the Bowaters job. In all, Jamison acted as subcontractor on these
jobs from around June 16 to November 21, 1958, and secured all its employees,
varying in number from 3 to 12, through Bryan of the Pipefitters. Throughout this
period Rives' employees did no fit-up or assembly work on jobs requiring the UA
label or approval, and employees who had performed this type of work were given
other employment in the shop.
The Strike; the Agreement between Rives and the Sheet Metal Workers
On June 27, 1958, Luther Manis, international representative, filed unfair labor
practice charges against Rives. Thereafter, on July 1, the employees went on strike
which continued until about September 25, 1958, when the above-mentioned con-
tract was signed between Rives and Local 571 of the Sheet Metal Workers. At the
conclusion of the strike Rives denied reinstatement to six strikers because they had
been replaced during the strike.
During the negotiations, which continued during the strike, the parties frequently
discussed Rives' problem concerning UA acceptance of its products for installation.
In the course of the negotiations, as early as May or June, Manis indicated he would
have no objections to subcontracting the assembly work if satisfactory contract terms
could be reached. However, the agreement of September 25, 1958, contained no
specific provision with respect to the subcontracting of work requiring the UA label
or approval.
In this connection, it is undisputed that on August 20, 1958, top officials of the
Sheet Metal Workers and the Pipefitters met in Jacksonville for the purpose of trying
to resolve the question as to which union would perform the assembly work and
apparently, according to Manis, they reached "an agreement with the Pipefitters on
that part of the work that they claimed." Manis at the prior hearing testified that
following this meeting he advised Rives "That there was no disagreement between
the pipefitters and the sheet metal workers." Further, when asked if he informed
Rives that the Sheet Metal Workers was ready to give up the pipefitting work in the
shop, which was normally performed in the field by pipefitters, and leave Rives free
to contract or deal with whatever union he wished to with respect to that work, if
the Company and the Sheet Metal Workers could get together on a contract covering
the rest of the shop, Manis answered:
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That sounds about like what I told him. I don't remember whether I used the
words "contract to any other union," I don't recall saying that, however I might
have. (Transcript 221-223, prior hearing.)
The Company claims that as a consequence of the August 20 meeting, the contract
of September 25 contained language assuring the Company of the concessions made
at this meeting.5
As previously stated, the Board found that by engaging in such acts and conduct,
and for the reasons stated by the Trial Examiner, the Company violated Section
8(a)(1), (3), and (5) of the Act and that the circuit court refused to enforce the
Board's Order.
C. The present case
Although the record only briefly deals with the Company's problem in 1959 and
1960 regarding the use of the UA label or obtaining acceptance of its products, there
is no doubt the Company was confronted with the same situation in that period.
Rives testified generally that he experienced difficulties in having his products
accepted by Grinnel Company and other piping contractors. Moreover, there is no
evidence remotely suggesting that the Pipefiters and the Sheet Metal Workers ever
resolved the dispute over the assembly work and the General Counsel concedes that
commencing in 1959 the Company was in the same position insofar as the use of
the UA label or acceptance of its products was concerned as it was prior thereto.
Of course, the contract between the Company and the Sheet Metal Workers was
in force and effect until September 30, 1959, and prior to the expiration date the
parties entered into negotiations covering a new agreement. Willis H. Wilson,
president of Local 571 and a company employee, testified that the UA label was a
subject of discussion during the negotiations and the Sheet Metal Workers attempted
to find some solution of the problem so that the Company would be in a position to
bid on new projects requiring UA label or approval. On cross-examination by com-
pany counsel, Wilson was asked if during one of the bargaining sessions he agreed
with C. D. Sharman, company vice president, "that it would be okay to subcontract
or to send a UA label [job] to some other place" and he answered, "I agreed, yes, sir
This agreement was-if it were to be worked out between the two Unions." There-
after, about August 20, 1959, Sharman requested Wilson to sign a letter, which he
prepared, stating that the Sheet Metal Workers had no objection to the Company
subcontracting assembly work claimed by the Pipefitters, it being Wilson's under-
standing that the purpose thereof was to make the Company's products acceptable
when a UA label was required. Wilson, after conferring with his attorney, refused
to sign the letter. Contract negotiations continued and on February 18, 1960, the
parties executed an agreement to run from January 19, 1960, to September 30, 1960.6
D. The operations of W-M
Counsel stipulated that W-M was incorporated in 1955 and that Rives and his
wife are the principal officers and majority stockholders of W-M as well as of Rives
Company. In August 1960, Rives made arrangements to construct a fitup and assem-
bly plant located about 150 feet from the Rives building. Construction commenced
in September 1960, and the plant went into production about October 19, 1960.
5 These concessions are contained in the following provisions of the contract:
Article II, Management prerogatives. A. The management of the Company's plant
and the direction of its working forces including, but not limited to, the right to
establish new jobs, establish or change existing jobs, increase the number of jobs,
establish work crews, change material, processes, products, equipment and operations,
schedule employees, assign work and work to be performed, and the right to hire and
suspend, promote, demote, discipline or discharge for proper cause, transfer or lay-
off employees because of lack of work or other legitimate reasons shall, subject to the
provisions of this agreement, be vested exclusively in the Company.
Article XVII, Acceptance of work and products. Union label.
A. The Union agrees that it will immediately and diligently proceed to do all things
necessary to provide for the acceptance of work and products of the Company by any
other union or company as the case may be.
e This agreement contains an acceptance of work clause the same as in the prior con-
tract and a management rights clause which adds that the Company shall have the right
to "select the work to be performed at the plant." The agreement also provides for a
5-cent-an-hour wage increase.
W. L. RIVES COMPANY 1063
Rives testified that the W-M plant was constructed so he would be eligible to bid
on projects requiring the UA label. He further stated that the Pipefitters and the
Sheet Metal Workers took the position that Rives had to have two unions in the shop
and while the matter was discussed frequently the unions never resolved the question.
Rives freely conceded that if the Pipefitters and Sheet Metal Workers could have
worked out some arrangement to work together under the same roof, thereby en-
abling Rives to bid on UA projects, it would have eliminated the necessity of building
the W-M plant. It is undisputed that the operations at W-M were limited to work
requiring the UA label and jobs which did not require the label were fabricated and
assembled at the Rives plant. At the time of the hearing the W-M plant was closed
down due to lack of orders but the Rives plant was in operation.
About September 16, 1960 , Rives signed a contract with Local 234 of the Pipe-
fitters wherein it recognized the local as the exclusive bargaining representative and
specified terms and conditions of the hire and tenure of employment of employees.
This agreement is effective to September 1, 1961 . The parties further stipulated that
W-M had no production employees at the time of the execution of the agreement
and since October 12, 1960, the date it first commenced hiring production employees,
it has secured all such employees from Local 234.7 Prior thereto around August 16,
1960 , W-M signed an agreement with the International Plumbers and Pipefitters
Union wherein W-M was granted the privilege of using the UA label on its products.
Rives determines labor policy and conducts contract negotiations for both Com-
panies, but the responsibility of carrying out this policy is vested in Sharman, man-
ager of the Rives plant, and John Seroyer , manager of the W-M plant . While the
plants share common facilities for the supply of water , electricity , and compressed
air, the Companies maintain separate books, records, and payrolls . Rives stated
the Rives' employees were employed on a permanent basis whereas those at W-M
were hired on a job-to-job basis .8 Rives said there has been no interchange of em-
ployees between the plants, except for isolated instances when Rives ' maintenance
men performed work at W-M. In outlining the relationship between the Com-
panies, Rives stated that when W-M obtains a contract it secures the pipe and fitting
from Rives Company, but W-M performs no work on projects secured by Rives.
According to Rives, labor costs on fit-up work on straight pipe would be around 18
or 20 percent of the total cost of the product and in the case of metal tanks or
general fabrication of stainless steel the fit -up cost would amount to about 5 percent of
the total cost.
The 1960 Negotiations Between Rives and the Sheet Metal Workers
By letter dated July 19 , 1960 , Wilson notified Rives that Local 571 desired to
modify its agreement which terminated September 30. On August 20, Wilson ad-
dressed a letter to Rives setting forth the proposed contract changes which covered
(1) revision and clarification of classifications , ( 2) resumption of monthly meetings
with management , ( 3) 3 weeks' paid vacation after 10 years, ( 4) three paid holidays,
(5) dues checkoff , and (6 ) 12 cents an hour increase.
Wilson stated that the Local 571 bargaining committee , composed of Wilson, La-
Verne Pickett , and Hilton White , met with Mr . and Mrs. Rives and Sharman on two
occasions in September but they were unable to reach agreement on the local's pro-
posals. About October 12, the local committee with Fred Kupfer, international
representative, met with the above company representatives and Superintendent
Charles Raessman at the plant and while there was some discussion of the local's
demands the meeting ended inconclusively . Before the meeting opened Kupfer
observed the W-M plant and told the committee there was nothing the local could do
about it because they did not know what it was to be used for , "it could be used for
the manufacture of shoes. " On October 14, the parties held another meeting at which
time the Company offered a 5 -cent an hour increase , agreed to resume the joint
monthly meetings and to revise and clarify the classifications , but rejected the remain-
ing proposals covering the checkoff, paid holidays , and vacations . Wilson said they
probably discussed other subjects such as responsibility of workmen for mistakes and
increases based on the cost-of-living index . Seemingly, the meeting ended with
Wilson stating he would inform the membership of the Company's position. On
October 15 , the local held a special meeting of the employees in the W-M building
and they rejected the Company 's wage offer . On October 19, the parties met again
and Wilson advised the company representatives that the employees had rejected their
7 The agreement provides the local, upon request, will furnish skilled workmen
g The payroll records of the two Companies fully support Rives' testimony.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage offer "and they still wished to negotiate on the 12 -cent an hour basis." After
the meeting there was some brief mention of the W-M plant , which was then operat-
ing, and Rives said he had an agreement with the Pipefitters.
The Strike of October 27, 1960 ; the Agreement of December 13, 1960
On the evening of October 19 or 20 , about 30 of the employees attended a meeting
at Wilson 's home for the purpose of discussing work jurisdiction since W-M was em-
ploying members of the Pipefitters at its plant . Wilson apparently expressed the hope
that Rives would contact the local and settle the matter in some way. In any event,
according to Wilson , a vote was taken as to whether the men would strike if the
Company did not work out some kind of an agreement with them . Admittedly,
the ballots were not counted at the conclusion of the voting, but sealed and held by
a committee , in order to give the Company an opportunity to come forward with a
satisfactory agreement.
Thereafter , on the evening of October 24, Wilson requested Sharman to make
arrangements for a meeting with the committee the next day . On October 25, Shar-
man handed Wilson a letter which stated that due to the shortness of the request and
previous commitments the Company could not meet with the committee until
October 28. Wilson did not reply to the letter and made no mention that a strike
vote had been taken because he believed it was the duty of the Company to approach
the local on the subject of work jurisdiction.
Accordingly , on the afternoon of October 25, Wilson held a meeting of the em-
ployees, on a lot across the street from the plant, at which they discussed the Com-
pany's failure to come forward with some agreement on the W-M operation. The
strike ballots were then opened and a majority of those cast were in favor of striking
the Company. Wilson thereupon pointed out they would have to wait until formal
charges of unfair labor practices had been filed against the Company. The next
day Manis filed charges alleging violations of Section 8(a)(1), (3), and (5) of the
Act. On the morning of October 27, about 38 of the employees, practically the
entire force , went on strike.
Around November 1 Wilson, Kupfer, and the committee met with Sharman and
Attorney Millar Actually nothing was accomplished at this meeting because Kupfer
took the position that if the Company had counsel he, too, wanted to have his
attorney present during negotiations About November 8, Mr. and Mrs. Rives and
Millar met with Wilson, Kupfer, Manis, and White. Wilson was hazy concerning
the details of the meeting but stated the parties discussed wages , the Company still
offered a 5-cent an hour increase , and responsibility of employees for mistakes or
defective work The meeting concluded with Kupfer stating he would advise the
Company of the local's position regarding its offers On November 10 the parties
held another meeting at which Local 571 agreed to accept the Company's wage
increase and changes in the responsibility clause . On December 13 the parties
executed an agreement , effective to December 31, 1961.
Kupfer was questioned only briefly regarding the poststrike meetings. Kupfer
testified he was assigned to assist Local 571 in its negotiations and, while he was
aware of the standing dispute between the Pipefitters and the Sheet Metal Workers
and considered the strike a jurisdictional one, the basic issue between the Company
and the local as far as he was concerned "was strictly wages and new agreements
fsici ."
From the testimony of Wilson, White, and Pickett it is clear that the local com-
mittee made no attempt to discuss the UA label problem with the Company or the
possible effect the W-M operation might have upon their employment . It is equally
clear that the committee did not notify the Company of the strike action or purpose
or objective of the strike Indeed, Wilson testified the men took the position it was
the Company's responsibility to resolve the UA label problem and come up with an
agreement covering the W-M plant which would be acceptable to them. Again,
the testimony of Kupfer and White was to the effect that Local 571 made no demand
or claim to represent the employees of W-M either on the basis of a separate unit or
as part of the Rives Company bargaining unit. Their contention, as I view their testi-
mony, was, and is, that assembly work such as performed at W-M was normally
within the jurisdiction of the Sheet Metal Workers.
Wilson stated the men picketed at the Rives plant from October 27 to November 10,
when agreement was reached with the Company Thereafter, the men "spot-
picketed" for about 2 week,; when picketing ceased entirely, although, apparently, the
strike has never been terminated officially.
W. L. RIVES COMPANY 1065
The Discharge of the Strikers
The complaint alleges, and the answer admits, that about November 10, 1960, the
Company notified 36 named strikers that their jobs had been filled and that they
were discharged.9
Wilson testified he received a letter from the Company, dated November 10, ad-
vising him that his job had been filled and be was therefore discharged. He stated
that other strikers received similar letters. White received a discharge letter
and about 2 days later he filed an application for work and was reemployed about
June 22, 1961. Pickett and Paul Papevius likewise received discharge letters and
about 2 days later they filed applications for jobs but have not been reemployed.
Analysis and Concluding Findings
The General Counsel in arguing his case pointed out that the only difference
between the prior and instant cases is that in the former the Pipefitters performed
assembly work at the Rives plant, whereas here they performed the work in the new
shop some 150 feet distant from the Rives building. Therefore, he concluded,
"On these facts, the General Counsel submits that the instant case cannot be dis-
tinguished from the prior case." I agree that the basic questions and issues presented
here are the same as those passed upon in the previous case. In the earlier case the
Trial Examiner and the Board held that by engaging in the course of conduct found
therein Rives thereby engaged in and was engaging in unfair labor practices pro-
scribed by the Act and entered an order granting remedial relief designed to effec-
tuate the policies of the Act. However, in enforcement proceedings, the circuit court
issued its decision wherein it reviewed and discussed at length the Board's findings,
rationale, and conclusions, and held there was no substantial support for the Board's
conclusion and order and denied enforcement thereof. The Board did not petition
the Supreme Court for writ of certiorari to review the judgment of the circuit court.
Since the circuit court has already decided the issues presented herein the matters
must be considered as res judicata or, in the alternative, the court's decision now con-
stitutes the law of the case.
In N.L.R.B. v. Ozark Dam Constructors and Flippin Materials Co., 203 F. 2d
139, the Court of Appeals for the Eighth Circuit was presented the question whether
the Board was precluded from finding that the respondents were a single employer
because of a prior proceeding against the same respondents as separate employers
which proceeding culminated in a decision by the court in N.L.R.B. v. Ozark Dam
Constructors [and Flippin Materials Company] 190 F. 2d 222. In considering this
question the circuit court stated that the issue whether Ozark and Flippin were joint
employers "was not squarely decided" in the earlier case, although the court pointed
out it was apparently the Board's theory they were not separate entities and the
court's decision and order in that case was based upon the conclusion that the re-
spondents were not a single employer. Continuing, the court stated:
The general rule is that "Any right fact or matter in issue and directly adjudi-
cated, or necessarily involved in the determination of an action before a com-
petent court in which a judgment or decree has been rendered upon the merits,
is conclusively settled by the judgment therein and cannot again be litigated
between the same parties and their privies, whether the claim, demand, pur-
pose or subject-matter of the two suits is the same or not." [Cases cited.]
We think that the question whether the respondents were one employer or
two employers was necessarily involved in the prior proceeding, and that the
Board was precluded from finding in this proceeding that they were one
employer and that the employees of Flippin were unfair labor practice strikers
because of Ozark's refusal to bargain with the Joint Council, which concededly
represented only employees of Ozark. But if the issue was not res judicata in a
strict sense, we are still of the opinion that there is an inadequate basis in the
record for visiting the sins of Ozark upon Flippin.
In The Grand Union Company case (123 NLRB 1665) the Board found that the
company was authorized under Section 8(a).(3) to enter into a union-security clause
with Robert Gray, the certified individual representative of its employees, except for
the fact that Gray was not in compliance with the then effective Section 9(f),
Rives testified concerning the replacement of the strikers at page 302 of the transcript.
My notes show he was asked if any of the replacements were members of the Pipefitters
Local and he answered in the negative. The transcript omits this phase of his testimony
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g), and (h) of the Act. In reaching this conclusion the Board construed the words
"labor organization" as defined in Section 2(5) and as used in Section 8(a)(3) as
including an individual certified as an employee representative. Thereafter the case
was considered by the United States Court of Appeals for the District of Columbia
upon the charging party's petition to review and the Board's petition for enforce-
ment. The court held that an "individual" was not encompassed within the meaning
of the term "labor organization" in the proviso to Section 8(a) (3) and remanded the
case to the Board for further proceedings consistent with its opinion.10 The Board
did not seek certiorari.
Thereafter the Board issued its Supplemental Decision and Amended Order (132
NLRB 1037), and "In conformity with the court's opinion, which is now the law
of the case . . ." found that Gray was not a labor organization within the meaning
of Sections 2(5) and 8(a)(3) of the Act, and that the respondent violated Section
8(a)(3) and (1) by entering into a contract with him containing a union-security
clause.
It is true, of course, the present case involves a violation of Section 8(a)(2) and
different discriminatees, but I consider these allegations more in the nature of corol-
laries to the longstanding basic issues rather than as a new and distinct set of unfair
labor practices, sufficient to remove this action from the scope of the circuit court's
decision. It strikes me it is reasonable to assume that as long as the jurisdictional
dispute is current the Sheet Metal Workers will have ample opportunities for filing
unfair labor practice charges in various styles and forms, albeit they all stem
from the same dispute. Certainly, the Board had not approved the relitigation of
issues. In Peyton Packing Company, Inc. (129 NLRB 1358), the Board was faced
with the question as to the propriety of twice litigating the withholding of a bonus
as a violation of a different section of the Act, and twice litigating the cause of a
strike. In brief, the Board, after reviewing its administrative practice, concluded by
stating that "Having failed in his proof, we cannot condone the General Counsel's
effort to take a different path to achieve what he failed to do in the first instance."
Accordingly, the Board dismissed the complaint insofar as it alleged the company
violated Section 8(a)(5) by withholding the bonus and refusing to bargain in that
respect, and insofar as the complaint alleged these acts, caused, and contributed to
the prolongation of, the strike.
In my opinion the subject matter of this controversy is res judicata, or the decision
of the circuit court stands as the law of the case. 1 therefore recommend that the
complaint be dismissed.
But assuming neither of the above-mentioned doctrines is applicable, I would still
reach the same conclusion on the law and facts of this case.
As found above, the Sheet Metal Workers executed an agreement with Rives
Company covering its production and maintenance employees which was effective
from October 1, 1958, to September 30, 1959. Thereafter, the parties signed a
second agreement which ran from January 19 to September 30, 1960.
In July 1960, the Sheet Metal Workers notified the Company of its desire to
modify the current agreement and on August 20 the Union submitted its proposed
changes, in writing, to the Company. Although the urgency of the UA label had
been a subject of discussion in the negotiations leading to the January 19 to Septem-
ber 30, 1960, contract, the Union's proposals made no mention of this topic, despite
the fact that this matter had never been resolved. It would be incredulous to believe
that the international representatives of the Sheet Metal Workers, the local bargain-
ing committee, and the employees were not fully cognizant of the dilemma in which
the Company was placed insofar as bidding on projects requiring the UA label was
concerned. Nor can it be doubted that these persons were well aware of the fact
that the W-M plant was being built to take care of UA label work. Indeed, Kupfer
facetiously remarked to the local committee they could do nothing about the plant
because "it could be used for the manufacture of shoes." In these circumstances
the Sheet Metal Workers and the Company held about eight negotiating sessions,
from the latter part of September to November 10, when they reached agreement
upon contract terms. Admittedly, the Union did not bring up the question of the
UA label or the W-M operation during the negotiations. (The W-M plant may
have been mentioned casually once.) Instead of bringing these questions out in
the open the local committee was content to bargain on its proposals and place the
responsibility of resolving the UA label and operation of the W-M plant upon the
Company. As might be expected, none of the union representatives or committee-
men ever explained just how the Company had the authority, means, or capability
of settling the dispute between the two unions. I have no difficulty in finding the
10 Joseph J. Schultz v. N.L R B , 284 F . 2d 254 (CA.D.C.).
W. L. RIVES COMPANY 1067
negotiations centered on wages and other terms of employment unrelated to the
UA label or the W-M plant.
In the course of the negotiations the employees went on strike on October 27,
which continued actively until about November 10. The complaint alleges the
strike was caused by the action of W-M in signing an agreement with the Pipe-
fitters when it had no employees , without notice to or consultation with the Sheet
Metal Workers . There is no doubt that the above agreement was signed before
W-M hired any production employees. While W-M did not notify or consult with
the Sheet Metal Workers concerning this agreement , the local committee , as I have
already stated , had full opportunity to discuss the W-M plant operation during the
negotiations , but it chose to ignore the subject. In addition , the testimony offered
by the General Counsel to prove the strike was an unfair labor practice one is
neither persuasive nor convincing . The gist of Wilson 's testimony is that the men
would go on strike unless the Company submitted an agreement satisfactory to
them . This may refer to the 12-cent an hour increase asked by the Union and the
Company's offer of a 5-cent increase. In any event there is nothing in Wilson's
testimony which suggests that the W-M-Pipefitters agreement was voted upon as
a strike issue . Further, Kupfer said wages constituted the principal issue during the
negotiations and he characterized the strike as a jurisdictional one. White stated
when W-M commenced operations there were rumors among the men this opera-
tion might affect their work although they were getting overtime when these rumors
were being circulated . White concluded by saying that if it had been up to him
there would have been no strike.
On the basis of the foregoing facts I find that Rives Company fulfilled its statu-
tory obligation to bargain collectively with the Sheet Metal Workers and that the
strike was not caused by any unfair labor practices on the part of the Company.
As I understand it, the General Counsel, at least in part, bottoms the refusal to
bargain aspect of the case upon the fact that the Company was obligated to recog-
nize and bargain with the Sheet Metal Workers as the representative of the pipe-
fitters at the W-M plant since the latter employees were included in the bargaining
unit. Seemingly , the General Counsel's position stems from the theory that W-M
is the alter ego of Rives and , further, as a Board certification "covers employees in
job classifications . when additional employees are employed in these job classi-
fications within a certain certified unit, they fall under and in the unit and a 'certain'
[certified ) representative is entitled to represent them." Of course there is no
doubt the Sheet Metal Workers Union was certified as the exclusive bargaining rep-
resentative of production and maintenance at the Rives Company . Had the
General Counsel claimed the pipefitters at W-M constituted an accretion to the
unit I could follow this argument . However, in his opening statement the General
Counsel explicitly disavowed the accretion doctrine as the theory of his case . Again,
the complaint describes the appropriate bargaining unit as the one for which the
Union was certified , without any mention whatever of the employees of W-M.
Moreover, the undisputed evidence shows that the Union did not claim to represent
the pipefitters at W-M and no demand was ever made upon Rives for recognition
as the representatives of the pipefitters either as a separate unit of employees at
W-M, or as part of the Rives unit . In these circumstances it is immaterial whether
W-M and Rives be considered as an integrated enterprise . Nor do the cases cited
support the General Counsel 's contention . For instance , The Plumbing Contractors
Association of Baltimore , Maryland, Inc., et al., 93 NLRB 1081 , 1087, involved the
intervenor 's contention that the certification of one craft union in the industry would
encourage raiding by certified unions of the jurisdiction of noncertified unions. The
Board rejected this argument and pointed out that a certification , unlike a jurisdic-
tional award , does not freeze the duties or work tasks of the employees in the unit
and does not preclude the employer from adding to, or subtracting from, the em-
ployee's work assignment . I fail to see how a refusal to bargain can be sustained
on the General Counsel 's theory and I so find and conclude
It is well established that the execution of an agreement by an employer with a
union at a time when he had no employees, as W-M did in this case , constitutes a
violation of Section 8 ( a)(1) and (2) of the Act. However , I do not consider the
execution of the contract as the touchstone of this case, but rather as one of a series
of events occurring in a lengthy and difficult jurisdictional dispute. Again, from
the position taken by the Sheet Metal Workers Union it is reasonable to assume it
will not, in the future, attempt to place its members on jobs previously performed
by the Pipefitters , or which require the UA label . Hence to recommend that the
contract be set aside and to withhold recognition until the Pipefitters Union is
certified would accomplish little, if anything, from a realistic standpoint. I fail
to see how the public policy of the Act would be effectuated by such action; there-
fore, I make no such recommendation.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have already found that the strike was an economic rather than an unfair labor
practice strike. I find no problem exists concerning the reinstatement of the strikers
for the reasons that: (1) the Company's undenied testimony that all strikers were
replaced prior to November 10, 1960, when they were terminated on that ground,
and (2 ) there is no evidence indicating the strikers made application for reinstate-
ment before the date of their replacement.
I have considered other arguments and contentions advanced by counsel for the
parties but in view of my findings and conclusions herein I do not deem it necessary
to discuss them."
On the law and facts of ,this case I find and conclude the Respondents have not
engaged in unfair labor practices as alleged in the complaint.
Upon the basis of the foregoing findings of fact and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The operations of W. L. Rives Company and W-M Corporation, and each of
them, occur in commerce within the meaning of Section 2(6) and (7 )of the Act.
2. Sheet Metal Workers' International Association, AFL-CIO, and Local 234,
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO, are each labor organizations
within the meaning of Section 2(5) of the Act.
3. The Respondents have not engaged in unfair labor practices within the mean-
ing of Section 8(a)(1), (2 ), ( 3), and ( 5) of the Act as alleged in the complaint.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law , I recom-
mend that the complaint be dismissed.
U I find no evidence to suport the assertion that W-M is in fact "an employer engaged
primarily in the building and construction industry ," as defined in Section 8(f) of the
Act. Therefore, the execution of the contract was not protected by that section.
United Mine Workers of America , District 50 and Turman Con-
struction Company. Case No. 9-CD-57. April 13, 1962
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10(k) of the Act which pro-
vides 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 September 13, 1961, Turman Construction Company, herein
called Turman, filed with the Regional Director for the Ninth Region
a charge alleging that United Mine Workers of America, District 50,
herein called District 50, had violated Section 8 (b) (4) (ii) (D) of
the Act by threatening, coercing, and restraining Turman and Wilson
Construction Company, herein called Wilson, from carrying on cer-
tain construction work, with an object of requiring both employers to
assign the work to members of District 50 rather than to their current
personnel.
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, as
136 NLRB No. 91.