W.L. Rives Co., 1050 (1962)
to him or to the Union, Respondent has engaged in unfair labor practices proscribed by Section 8 (a) (5) and (1) of the Act.
The aforesaid unfair labor practices affect commerce within the meaning of the Act.
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-CA1707, 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 Intermediate 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 Intermediate 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 represented by the Pipefitters,2 installed the pipe at the jobsite; Rives itself 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 representation 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 representative, 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 Pipefitters 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 commenced. 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 October 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.
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 denying 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 proceeding 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 agreement, 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 bargaining representative of those employees. Subsequently, the Pipefitters 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 transferred to the newly hired employees in the 117-M plant. SMW ceased to be recognized as representative of all employees engaged in assembling 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 deprive 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 discouraging 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 unmindful 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...
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