Local 32, 40, 82, 175, 358, 549, 598, 631, & 695

National Labor Relations Board - Board DecisionsNov 23, 1964

149 N.L.R.B. 1014 (N.L.R.B. 1964)

1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assist the above-named or any other labor organization , to bargain collectively through representatives of their own choosing , to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection , or to refrain from any or all such activities. Roy MILLER FREIGHT LINES, INC, Employer Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced , or covered by any other material Employees may communicate directly with the Board 's Regional Office, 849 South Broadway , Los Angeles , California, Telephone No. Richmond 9-4711, Extension 1031, if they have any questions concerning this notice or compliance with its provisions. Local Unions Nos. 32 , 40, 82 , 175, 358, 549, 598, 631, and 695 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada; and Washington State Association of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and Cascade Natural Gas Corporation , Charging Party and International Chemical Workers Union Local 121 , Party to Contract . Case No. 19-CD-85. November 23, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, following a charge filed on March 25, 1964, by the Employer, Cascade Natural Gas Corporation, herein called Cas- cade, alleging that the above-named locals of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and its affiliated Wash- ington State Association, herein called the Plumbers, had violated Section 8(b) (4) (D) of the Act. A duly scheduled hearing was held before Hearing Officer Patrick H. Walker on April 30 and 31, and May 4 and 5, 1964. All parties appearing were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to ad- duce evidence bearing on the issues. The rulings niade at the hear- ing are free from prejudicial error and are hereby affirmed. Briefs were filed by the Employer, the Plumbers, and the International Chemical Workers Union Local 121, herein called Chemical Workers, all of whom appeared at the hearing as parties to the dispute. Upon the entire record in the case, the Board 1 makes the follow- ing findings : 'Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated Its powers in connection with this case to a three-member panel [Members Fanning , Brown, and Jenkins]. 149 NLRB No. 86. LOCALS 32, 40, 82 , 175, 358, 549, 598 , 631, & 695 1015 1. The business of the Employer The parties stipulated that Cascade Natural Gas Corporation is a Washington corporation engaged in the distribution and sale, in the States of Washington and Oregon, of natural gas purchased from the interstate transmission system operated by El . Paso Natural Gas Company and from the international transmission system operated by Pacific Gas Transmission Company, whose gas supply is located in Canada. The parties also stipulated that Cascade buys for resale from the above suppliers natural gas at a cost in excess of $10,000,000. We find that the Employer is engaged in commerce within the mean- ing of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations involved The Plumbers and the Chemical Workers are labor organizations within the meaning of the Act. 3. The dispute A. The work at issue The work which gave rise to this proceeding consists of piping work from the gas meter into the structure to be served by the gas- line. There is no dispute over piping work from the main line in the street up to the meter, Cascade generally having used and pres- ently using its own servicemen to lay this particular portion of the pipe. Historically, Cascade has employed three different methods of handling the installation of piping downstream from the meter,2 that is, by using their own servicemen, by contracting with a mechanical contractor to perform the work with his employees, or by allowing the installation to be performed by dealers who sold gas appliances to the customer. None of the above-described methods were objec- tionable to the Plumbers. Subsequent to January 1964, Cascade, in order to enhance its com- petitive position, decided to offer to potential gas customers a greater amount of free piping installation depending on the overall B.t.u. output of the appliances to be installed in the building. In further- ance of this policy, it issued rule 8 (rule 7 in Oregon).3 It is con- ceded that in almost every instance this new regulation will involve the installation of piping on the downstream side of the meter, and this work will now be done by Cascade's employees when free piping is involved. 2 This term is used to denote the portion of work from the meter to the appliance itself 3 This rule establishes a new rate tariff under which specified lineal footage of service lines is to be offered to customers at no additional cost. 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Contentions of the parties The Employer contends that the Board shall find a jurisdictional dispute and assign the work of installing piping on the downstream side of the meter to its employees who are represented by the Chemi- cal Workers Union. The Chemical Workers also urges the Board to find a jurisdictional dispute and to award the work to Cascade's employees represented by it. The Plumbers contends that first, there is no jurisdictional dispute within the meaning of Section 8 (b) (4) (D) of the Act in that there was no picketing for the object of securing work assignments, but rather, that the picketing was for the singular purpose of publicizing the fact that Cascade was not paying "area standard" wages to its employees. The Plumbers also contends that in the event the Board finds that a jurisdictional dispute exists, the work should be awarded to them, or in the alternative, that a negative award be made to the effect that the work shall not be assigned by Cascade to its employees. C. Applicability of the statute Section 10(k) of the Act empowers the Board to determine the dispute out of which an 8(b) (4) (D) charge has arisen. However, before the Board proceeds with a determination of dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated. In order to conclude that reasonable cause exists, the Board must find evidence in the record showing that conduct proscribed by this section has occurred and that such con- duct was engaged in for the purpose of forcing or requiring an employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class. The Plumbers contends that upon learning of the new regulation, their representatives set out upon a course of conduct directed at protesting to Cascade the threat to their area standard wages inherent in Cascade's action. The Plumbers further asserts that in order to advise the general public of this matter it was decided that area standard picketing would be adopted and that only the general offices of Cascade would be picketed. Relying on the Board's decision in Calumet Contractors Association, 133 NLRB 512, the Plumbers con- tends that picketing for an object of protesting subnormal wages does not violate Section 8(b) (4) of the Act. In our opinion, the record does not support the Plumbers ' claim. The record adequately shows that on several occasions in discussing rule 8 with Cascade's officials, representatives of the Plumbers clearly LOCALS 32, 40, 82, 175, 358, 549, 598, 631, & 695 1017 stated that the work in question belonged to the Plumbers because of the type of work in dispute and the fact that, historically, this work had always been assigned to members of the Plumbers' Union. Thus, at one meeting with Cascade's officials, a Plumbers business agent took the position that the work belonged to the plumbers, regardless of whether they were union members or not. On another occasion, a plumbing contractor was told by a business agent that the picketing was going on because Cascade was doing work belonging to the plumbers. Again, a representative from the Carpenters Union who physically stationed a picket in front of Cascade's Mount Vernon, Washington, office told the district manager that piping done since the first of the year was plumbers' work. In addition to these various oral statements, the picket signs themselves lend little support to the Plumbers' contention. With but one exception, where a reference was made to living standards, the signs carried the following message : BUILDING TRADESMEN PROTECT YOUR RIGHT TO WORK DO NOT PATRONIZE CASCADE NATURAL GAS TELL YOUR FRIENDS LOCAL XXXX PLUMBERS AND FITTERS. Picketing started on March 23 and continued until April 9, 1964, when it was agreed between the parties in the injunction proceeding in the U.S. District Court that picketing would cease pending dis- position of the issue by the Board. Upon the evidence before us, we are satisfied that there is reason- able cause to believe that the Plumbers engaged in the picketing as described above with an object of forcing the assignment of the dis- puted work to its members or to employees classified as plumbers represented by it rather than to employees represented by the Chemi- cal Workers. Such circumstances are sufficient to invoke the Board's jurisdiction to hear and determine the dispute within the meaning of Sections 8(b) (4) and 10(k) of the Act. Merits of the Dispute Section 10 (k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors, and the Board has held that its determination in 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jurisdictional dispute cases is an act of judgment based upon com- monsense and experience in balancing such factors.4 The servicemen working for Cascade are trained, capable, and licensed to do the work of installing pipe inside structures and down- stream from the meter, and have done so in the past. Although this work is very closely related, if not identical, to piping work per- formed by plumbers, the record in no way indicates that in perform- ing this work the servicemen are required to perform a fuller gamut of the specialized skills usually possessed and exercised by journey- men plumbers and pipefitters in the construction industry generally. These factors tend to support an award of the work to the servicemen. Past and area practice offer little support to either claim. Prior to 1958, Cascade sold and installed gas appliances including piping from the meter to the appliance. After 1959, all appliances were sold through independent dealers who made arrangements through their own employees (for the most part journeymen plumbers) or through plumbing contractors for installation. Even under the new regula- tion instituted January 1, 1964, plumbers will continue to install appliances , and where free piping under the rule is insufficient to reach the appliance, plumbers may perform the necessary additional piping. In view of the noncompetitive status of Cascade, a gas pub- lic utility, there is no "area practice" in the usual meaning. How- ever , witnesses for both positions testified that, through their own personal knowledge, they were familiar with gas utility compaines in other parts of the country, some of which employed their own servicemen to install pipe downstream from the meter while others had the work subcontracted to employers who employed plumbers. As to the skills involved, there is no question but that both the servicemen and plumbers are qualified to do the work in dispute. Thus, although the Plumbers Union has long represented skilled journeymen in the pipefitting craft in the building and construction industry in this area , it is still a requirement in most of the local areas that in order to work on gas lines, each individual secures a license from the proper authority. The record clearly shows that both servicemen and plumbers have been so licensed after passing the required tests.5 We view the dispute to be decided here as a na-rrow one, limited to the piping work performed by the servicemen in the initial job of 4International Association, of Machinists , Lodge No 1748, AFL-CIO ( J A Jones Con- struction Company ), 135 NLRB 1402 , citing NLRB v Radio & Television Broadcast Engineers Union , Local 1212 , etc (Columbia B)oadcastinq System ), 364 U S 573. 5 The record also shows , however , that where the local authoi ity does not have a gas regulation , final inspection of any installation performed by a plumber is carried out by the gas company. LOCALS 32, 40, 82, 175, 358, 549, 598, 631, & 695 1019 installing service piping from the street into a new customer's struc- ture, under the new rule 8. Upon consideration of all pertinent fac- tors in the entire record, we shall not disturb the Employer's assign- ment of the disputed work to its servicemen. The Employer is satisfied with the results achieved by its assignment and desires no change in its practice. The servicemen are sufficiently skilled to perform the work in question, have had the work assigned to them by the Employer, and have been represented by the Chemical Work- ers for approximately 10 years and currently operate under a contract which includes language supporting the Chemical Workers' claim that the work properly belongs to the servicemen. Accordingly, we shall determine the existing jurisdictional dispute by deciding that the servicemen, represented by the Chemical Workers, are entitled to the work of installing piping under the Employer's rule 8 (rule 7 in Oregon). In making this determination, we are awarding the work in question to employees represented by the Chemical Workers, but not to the Chemical Workers or its members. Our present determi- nation is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in this proceeding, the Board makes the following Determination of Dispute, pursuant to Section 10(k) of the Act : 1. Servicemen employed by Cascade Natural Gas Corporation, who are represented by International Chemical Workers Union Local 121, are entitled to perform the work of installing piping under the Employer's rule 8 (rule 7 in Oregon). 2. Local Unions Nos. 32, 40, 82, 175, 358, 549, 598, 631, and 695 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada; and Washington State Association of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Indus- try of the United States and Canada, are not entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require the Employer to assign the above work to plumbers who are represented by the Plumbers. 3. Within 10 days from the date of this Decision and Determina- tion, the Plumbers shall notify the Regional Director for Region 19, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b) (4) (D) of the Act, to assign the work in dispute to plumbers rather than to service- men employed by the Employer.