Local 562, United Association of Journeymen, Etc.

National Labor Relations Board - Board DecisionsNov 9, 1965

155 N.L.R.B. 695 (N.L.R.B. 1965)

LOCAL 562, UNITED ASSOC. OF JOURNEYMEN, ETC. 695, 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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California, Telephone No. 688-5204. Local 562, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , AFL-CIO; Local 318, United Association of Jour- neymen and Apprentices of the Plumbing and Pipefitting In- dustry of the United States and Canada, AFL -CIO and Layne- Western Company and Local 554, Well Drillers Division , Inter- national Union of Operating Engineers, AFL-CIO. Case No. 14-CD-198. November 9, 1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following the filing of charges on May 24, 1965, by the Layne-Western Company (hereinafter called Layne or the Employer), alleging a violation of Section 8(b) (4) (i) and (ii) (D) of the Act. The charge was subsequently amended on May 27, 1965. The charge, as amended, alleged that Locals 318 and 562 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (hereinafter referred to as Local 318 and Local 562, or collectively as Pipefitters), have.induced or encouraged employees of Layne to cease work and have threatened Layne, where in each case an object was to force or require Layne to assign certain steps in the installation of a vertical turbine pump at Southeast Missouri State College to mem- bers of Local 562 rather than to its own employees who are repre- sented by Local 554, Well Drillers Division, International Union of Operating Engineers, AFL-CIO (hereinafter called Local 554 or Operating Engineers). Thereafter, a duly scheduled hearing was held before Hearing Officer Philip Dexter on July 12, 1965. The Employer and the Pipefitters appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues.' The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. A brief filed by the Employer has been duly considered. 'The Operating Engineers, a party in interest , was served with formal papers but did not appear or participate at the hearing. 155 NLRB No. 66. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. Upon the entire record in this case, the Board makes the following findings : I. THE BUSINESS OF THE EMPLOYER The Layne-Western Company is a Delaware corporation with an office in Kirkwood, Missouri. It is engaged in the business of selling, installing, testing, and repairing well and pumping equipment, in- cluding deep-well vertical turbine pumps. The uncontroverted evi- dence indicates that during the period from June 24, 1964, to June 22, 1965, it purchased in excess of $100,000 worth of equipment, shipped directly to Missouri or Illinois from outside the boundaries of those States. We find that the Layne-Western Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The Employer and the Pipefitters stipulated, and we find, that Local 318, Local 562, and Local 554 are labor organizations within the mean- ing of Section 2 (5) of the Act. M. THE DISPUTE A. The work in issue The parties stipulated that the work in issue in this case is the installation of a vertical turbine deep-well pump and 40-horsepower electric motor in a predrilled water well casing at Southeast Missouri State College, Cape Girardeau, Missouri. However, it appears from the record before us, and we find, that the work in issue also includes the assembly of the component parts of both the pump and the revolv- ing shaft, as well as the subsequent testing of the equipment after installation. Electrical connections and the piping leading away from the pump are not in issue. B. The basic facts Layne has a contract with the State of Missouri, which provides for the "furnishing and installation, as well as testing" of the pump here in question. Learning of this contract before the actual installation of the pump had begun, Local 562s business agent, Edward J. Steska, telephoned Edwin Smith, vice president of Layne. Steska told Smith that pump installation work normally belonged to the Pipefitters. Smith testi- LOCAL 562, UNITED ASSOC. OF JOURNEYMEN, ETC. 697 fled that Steska stated that he could shut down the entire project if Pipefitters were not used on the pump installation. Steska denied making such a statement. In any event, Steska suggested that Layne retain a piping contractor to install the pump. Smith said that he would think it over and Steska asked him to call back. Smith, how- ever, never returned the call. Layne's working foreman, Herb Conrad, was sent to the job on May 17, 1965, and while pouring concrete for a pump base, was visited by Davis, business agent of Local 318, and two other men, a business agent of the Common Laborer's Union, and another individual who he thought was an Electricians' business agent. Davis told Conrad that Layne could do the preliminary work, but that the Pipefitters claimed the actual installation. Davis told Conrad that Layne could get fit- ters through Gillmore Contracting Company, which employed mem- bers of the Pipefitters, or from Steska and Local 562. On May 24, 1965, Conrad returned to the job with two Layne employees and started to move the pump over to the wellhead. Davis approached and, upon seeing that the Layne employees-members of the Operating Engineers-were performing the pump work, promptly threatened to shut down the whole job. Conrad then called Smith, and Smith decided to call the Layne employees back to the office. On June 1, 1965, Conrad returned to the jobsite with the same two Layne employees. Davis again came up and asserted that the work belonged to the Pipefitters and that the Layne employees were not to continue. Davis told them, "Well, there is only three of you but there is Fitters on both sides." At this point, Conrad's crew refused to do any more work until an Operating Engineers business agent should come to the job. On July 9, 1965, despite this opposition, Conrad and the same two Layne employees returned to the jobsite. The remainder of the work, with the exception of the testing, was completed at this time. C. The contentions of the parties Layne contends that the work is properly that of its employees, who are represented by Local 554 of the Operating Engineers. It cites their extensive experience and skill, which, it maintains, are essential if the work is to be performed to the tolerances required for the suc- cessful operation of the pump. It also relies upon past practice, employer preference, and its collective-bargaining agreement with the Operating Engineers. The Pipefitters contends, in limine, that inasmuch as both unions are bound by the decisions of the National Joint Board for the Settlement of Jurisdictional Disputes, there is present here an "agreed upon method(s) for the voluntary adjustment of the dispute" within the meaning of Section 10(k) of the Act. Hence, the Pipefitters argues. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we should dismiss the charge. The Pipefitters further contends that there is, in any event, no reasonable cause to believe that Section 8(b) (4) (D) has been violated, arguing that the absence of the Operating Engineers at the hearing precludes a finding, essential to an 8 (b) (4) (D) violation, that there are two competing unions or groups of employees claiming the work in dispute. Alternatively, the Pipefitters contends that, should the Board decide against them on both the above issues, the work here in question belongs to Local 562 on the merits. They maintain that Local 562's members have the requisite skill and have made comparable installa- tions in the area. D. Applicability of the statute In a proceeding under Section 10(k) of the Act, the Board is only required to find that there is reasonable cause to believe that Section 8(b) (4) (D ) has been violated before making a determination of the dispute out of which the alleged unfair labor practice has arisen. In so finding, we need not conclusively resolve conflicts in testimony? Accordingly , we find that there is reasonable cause to believe, from the record before us, that the actions of the representatives of Locals 562 and 318 of the Pipefitters constituted inducements and threats and that it was these same actions which caused Layne's employees to cease working . We further conclude that there is reasonable cause to believe that these actions were undertaken in an attempt to force Layne to assign the work here in issue to Local 562's members rather than to Layne's own employees, who are represented by the Operating Engineers. We reject the contention that the absence of the Operating Engi- neers at the hearing precludes the finding that there are two compet- ing unions or groups of employees craiming the work in issue. In the instant case , Layne maintained its work assignment in the face of continuing opposition by the Pipefitters . Layne's employees, mem- bers of the Operating Engineers , notwithstanding work stoppages caused by the Pipefitters , persisted in their efforts to , and ultimately did, complete most of the work in issue . Their performance of the disputed work in the face of such resistance seems to us to be an une- quivocal claim to it. Moreover, the Operating Engineers has a claim to work assignments of this nature pursuant to its collective-bargaining agreement with the Layne-Western Company, which was entered into on October 1 , 1963, and does not expire until October 1, 1966. Also, the Pipefitters has not withdrawn its claim, made on behalf of Local 562, to the work. In view of this clear evidence , and in light of Local Union No. 8, International Brotherhood of Electrical Workers, AFL-CIO (West- Electric Company, Incorporated), 141 NLRB 888, 893. LOCAL 562, UNITED ASSOC. OF JOURNEYMEN, ETC. 699 the fact that there is no evidence that the parties have adjusted the dispute, we conclude that there are competing claims for the work in issue which are, as yet, unresolved. We also reject the contention that the National Joint Board for the Settlement of Jurisdictional Disputes constitutes "an agreed upon method(s) for the voluntary adjustment of the dispute" within the meaning of Section 10(k) of the Act. We do this in light of the fact that there is no evidence that this dispute was submitted to the Joint Board by the parties and the record does not reveal any agreement on the part of the Employer to be bound by a Joint Board decision .3 Accordingly, we conclude that there is reasonable cause to believe that Section 8(b) (4) (D) of the Act has been violated and that this dispute is properly before us for determination under Section 10(k) of the Act. E. Merits of the dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to the var- ious relevant factors.4 The Board has held that its determination in a jurisdictional dispute case is an act of judgment based upon com- monsense and experience and a balancing of such factors.5 1. Relative experience and skill Both the Pipefitters and the Operating Engineers apparently have the requisite knowledge and skills to perform pump installation work. However, extensive testimony indicates that the difficulty of this type of work varies directly with the depth of the installation. The evi- dence indicates that the critical range is approximately 25 to 30 feet. Installations on either side of this range are of a totally different quality. The Pipefitters could cite only one installation made by its members which was materially deeper than this range. It was of approximately 100 feet while the pump in issue extends downward in excess of 520 feet. On the other hand, the record indicates that in the course of its business, Layne, using its own employees who are rep- resented by the Operating Engineers, frequently performs jobs simi- lar to the one involved here. Thus, while it seems clear that both the Pipefitters and the Operat- ing Engineers could perform many types of pump installations, the sLocal 825 , International Union of Operating Engineers ( Nichols Electric Company), 140 NLRB 458, enfd. 326 F. 2d 218 ( C.A. 3) ; and United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Local 1622 ( 0. R. Karst ), 139 NLRB 591. * N.L.R.B. v. Radio c6 Television Broadcast Engineers Union, Local 1212 , Electrical Workers (Columbia Broadcasting System), 364 U.S. 573. 5 International Association of Machinists, Lodge No. 1743 (J. A. Jones Construction Company ), 135 NLRB 1402. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD significantly greater experience of the Operating Engineers in deep installations clearly favors an award to its members of the work here in dispute. 2. Area practice The testimony as to area practice is in substantial conflict. Layne maintains that the only pumps sold by it and installed at a depth of more than 30 feet by other than its own employees in this immediate area in the recent past are those where the customer had an agreement with the Pipefitters requiring that all such work performed on the customer's premises be done by the Pipefitters. There is no evidence of any such contract here. Layne also points out that in those in- stances when pipefitters are used, they are supervised by a Layne employee. The Pipefitters claim that its members install such pumps and specifically mentioned the one discussed above. It would appear that the evidence as to area practice is inconclusive and not inconsistent with an award to either the Pipefitters or the Operating Engineers. 3. The Employer's past practice, preference, and the collective-bargaining agreement Except in the circumstances discussed above, Layne's customary practice is to assign this work to its own employees, who are members of Local 554 of the Operating Engineers. Since 1947, Layne has been a party to a series of collective-bargaining agreements with the Oper- ating Engineers that appear to cover the work in issue. Layne is satisfied with its own employees and wishes to retain them for this work. The Employer's past practice, preference, and the collective- bargaining agreement thus favor an award to the Operating Engineers. F. Concbusions as to the merits of the dispute Weighing all relevant factors, we believe that, on balance, the employees represented by the Operating Engineers are entitled to the work in dispute. We rely primarily on the significantly greater experience of the Operating Engineers with installation of this depth; on the fact that the Employer has normally assigned this work to them pursuant to its collective-bargaining agreement; and on the fact that the operating engineers are sufficiently skilled to perform the work and have performed it to the satisfaction of the Employer who desires to continue using them. Accordingly, we shall determine the existing jurisdictional dispute by awarding the work in issue to employees represented by the Operating Engineers rather than to individuals represented by the Pipefitters. In making this determi- LOCAL 562, UNITED ASSOC. OF JOURNEYMEN, ETC. 701 nation, we are assigning the work to a group of employees represented by Local 554 of Operating Engineers, but not to the Union itself or to its members. G. Scope of the determination With the exception of the final testing, the work here in issue had been completed at the time of the hearing. Layne seeks a determina- tion extending beyond the work here in issue and applicable to the area in which it operates, asserting that the dispute is of a type that may arise again. When it has deemed it appropriate, the Board, in making an award in a dispute that is likely to recur between the same parties, has made that award broad enough to encompass at least the geographical area in which the employer operates, and in which the jurisdictions of the unions coincide. However, as no evidence was adduced in this case to show either that this dispute is of a recurring nature or one of long standing, we do not think it appropriate to determine here more than the specific work dispute which gave rise to the alleged 8(b) (4) (D) violation. DETERMINATION OF DISPUTE Pursuant, to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of this Dispute : 1. Employees of the Layne-Western Company, currently repre- sented by Local 554, Well Drillers Division, International Union of Operating Engineers, AFL-CIO, are entitled to perform the follow- ing work : The assembly of the component parts of a vertical turbine deep-well pump and revolving shaft at Southeast Missouri State College, Cape Girardeau, Missouri; the installation thereof, in conjunction with a 40-horsepower electric motor, in a predrilled waterwell casing; and the subsequent testing of the equipment after installation. 2. Locals 562 and 318, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, are not entitled by means proscribed by Section 8 (b) (4) (D) of the Act to force or require Layne-Western Company to assign the above work to members of Pipefitters Local 562. 3. Within 10 days from the date of this Decision and Determination of Dispute, Locals 562 and 318, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, shall notify the Regional Director for Region 14, in writing, whether or not they will refrain from forcing or requiring Layne-Western Company by means pro- '702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD :scribed by Section 8(b) (4) (D ) of the Act to assign the above work to members of Local 562 rather than to employees of the Layne- 'Western Company represented by Local 554 , Well Drillers Division, International Union of Operating Engineers , AFL-CIO. Lockheed Aircraft Corporation and Engineers and Architects As- sociation of Southern California, Burbank Chapter, Petitioner. Case No. 31-B-2213 (formerly 21-R-2213). November 10,196'5 SUPPLEMENTAL DECISION AND ORDER DENYING MOTION TO CLARIFY The Petitioner requests clarification of a unit of engineering employees for which it was certified by the National Labor Relations Board in 1944. At that time the Board set up separate voting groups of salaried engineering employees (with listed exclusions) and hourly paid engineering employees (with listed exclusions) 1 but provided that if either union won in both groups, the groups would be merged into a single appropriate unit .2 As a result of those elections the Engineers and Architects Association of Southern California, Bur- bank Chapter-now known as Engineers and Scientists Guild, Lock- heed Section, and herein referred to as the Guild-was certified on December 29, 1944, in a single unit of engineering employees. Specif- ically the certification reads as follows : All engineering employees of the Lockheed Aircraft Corpora- tion, Burbank, California, in the classifications listed in Appendix A and C of the Decision and Direction of Election [58 NLRB 1188], including employees in the classification of field service men who, upon investigation, are shown to be such engineering employees temporarily assigned to field duty, but excluding employees in the classifications listed in Appendix B and Appen- dix D of the said Decision, and all administrative, executive, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appro- priate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. This was a unit of 49 classifications. Early in 1947 the classifica- tion of commercial artist was included as the result of Petitioner's representation petition seeking 11 additional classifications .3 In its 1 58 NLRB 1188. 9 59 NLRB 274, Supplemental Decision and Amendment to Decision and Direction of Elections. 8 72 NLRB 551. 155 NLRB No. 62.