Oil, Chemical & Atomic Workers Int'l Union

National Labor Relations Board - Board Decisions

Mar 2, 1965

151 N.L.R.B. 374 (N.L.R.B. 1965)

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,Oil, Chemical and Atomic Workers International Union, AFL-
CIO and its Local 8-575 and Merck & Co., Inc.
Local Union No. 715, United Brotherhood of Carpenters and Join-
ers of America and Oil , Chemical and Atomic Workers Interna-
tional Union, AFL-CIO and Its Local 8-575. Cases Nos. O2-
CD-97 and 22-CD-98. March 2, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10 (k) of the National Labor
Relations Act, as amended, following charges filed by Merck &
Co., hereinafter called Merck, and Oil, Chemical and Atomic
Workers International Union, AFL-CIO and its Local 8-575
alleging, in substance, that Respondent Unions threatened to engage
in a strike or refusal to work, with an object of forcing or requir-
ing Merck to assign particular work to employees represented by
their respective Unions.' A consolidated hearing was held before
Hearing Officer Earl S. Aronson, on September 28, 29, and 30, and
October 8, 20, and 21, 1964. Merck, O.C.A.W., and the Carpenters
appeared at the hearing and were afforded full opportunity to
be heard, to examine witnesses, and to adduce evidence bearing
on the issues. The rulings of the Hearing Officer made at the
hearing are free from prejudical error and are hereby affirmed.
Thereafter, O.C.A.W., Merck, Carpenters, Sheet Metal Workers,
I.B.E.W., Steamfitters, and Plumbers filed briefs.
Upon the entire record in this case, the Board 2 makes the follow-
ing findings :
1. The business of the Employers
Merck & Co., Inc., is a New Jersey corporation with its principal
place of business located at Rahway, New Jersey, with branches
located in various other States of the United States. It is engaged
in the manufacture and sale of pharmaceutical specialties at its
1 Merck filed a charge against the O.C.A.W. O.C.A.W. then filed a charge against the
various building trades unions . Only the charge filed by Merck against the 0 C A.W.
and O .C.A W.'s charge against the Carpenters survives . At the hearing, the following
parties intervened : Local Union No. 245, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-
CIO (herein called Plumbers ) ; International Association of Sheet Metal Workers, AFL-
CIO, Local Union No. 22 ( herein called Sheet Metal Workers ) ; Local Union No. 675,
International Brotherhood of Electrical Workers, AFL-CIO (herein called LB E.W.) ;
International Association of Heat & Frost Insulators and Asbestos Workers, Local No. 32,
AFL-CIO ( herein called Asbestos Workers ) ; Steamfitters , Pipefitters & Apprentices Local
Union 475 , AFL-CIO ( herein called Steamfitters ) ; Metal Lab Equipment Company ( herein
called Metal Lab).
2 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].
151 NLRB No. 53.
OIL, CHEMICAL & ATOMIC WORKERS INT'L UNION 375
Rahway, New Jersey, plant. During the past 12 months, its gross
revenue from the sale of said products delivered directly to points
outside the State of New Jersey was in excess of $50,000.
Frank Briscoe is a New Jersey corporation engaged in the
building and construction industry. During the past 12 months,
its gross revenue from the sale of services performed outside the
State of New Jersey was in excess of $50,000.
We find that the Employers are engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and that it will
effectuate the purposes of the Act to assert jurisdiction herein.
2. The labor organizations involved
The O.C.A.W., Carpenters, Plumbers, Sheet Metal Workers,
I.B.E.W., Asbestos Workers, and Steamfitters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. The dispute
a. The basic facts
This dispute arises out of the construction of a new research
center at the Rahway, New Jersey, plant of Merck. In May
1964 Frank Briscoe Company was awarded the contract by Merck
for the erection of the shell. The agreement between Merck and
Briscoe left open the assignment of certain work, including that
in dispute herein, with respect to which Merck retained an option
to have Briscoe perform the work or have it done by its own employ-
ees. Thereafter, by supplemental agreement, Merck awarded the
optional work, including that in dispute, to Briscoe.
The disputed work involves the installation of the laboratory
furniture, including the connection of the laboratory furniture to
the various service outlets, such as electricity and plumbing in
the erected building. In addition, the disputed work also involves
the building of a steam line from Merck's powerhouse plant to a
point near or connected to the new building.
Merck and the O.C.A.W. have been parties to collective-bargaining
agreements covering Merck's production and maintenance employ-
ees since 1954. Briscoe is a member of the Building Contractors
Association of New Jersey, which is party to collective-bargaining
agreements with the building trades unions in New Jersey, includ-
:ng an agreement between the Association and the Central Jersey
District Council of Carpenters. Briscoe has subcontracts with
various companies to perform work, and has subcontracted the
disputed work.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence discloses that on or about May 20, 1964, during
the period the disputed work was in option, William Kelly, president
of Briscoe, called a preconstruction job conference with the business
agents of the building trades. Kelly informed them of the scope
of the work to be performed. At the meeting, a union representative
stated that he wanted to know who was going to perform the
installation of the laboratory furniture. Representatives from
several unions stated that they would not furnish men to do the
job unless they were to build the whole job. Kelly testified,
however, this was an expression of opinion and not an official
statement from the building trades that they would not furnish
men to do the job if the O.C.A.W. performed any of the work.
On May 27, 1964, Kelly wrote Merck that he had been informed
by the Carpenters Union that it would not furnish men until
such time as Merck agreed that the installation of laboratory
furniture would be performed by its members. However, Kelly
testified that the letter was in error because the Union had in
fact furnished carpenters for the project and that he mentioned
the Carpenters because he knew that they were the next trade
to be hired in the sequence of construction .3 In this connection,
the record shows that on May 22 Briscoe requested two carpenters
who arrived on May 25 and 26.
In the first week of June 1964, Briscoe's project manager at
the worksite, Frank Hlavenka, called the Carpenters office and
spoke to Carpenters Representative Knudsen. During this con-
versation, Hlavenka asked if Knudsen would supply him with
three or four additional carpenters. According to Hlavenka,
Knudsen said that before he would commit himself he wanted
to know the disposition of the laboratory furniture problem.
Hlavenka replied that he had no knowledge and could not answer
his question. He testified, "I put my order in for men like I do
many other times, and concluded the conversation." Also, Hlavenka
testified that Knudsen did not say that men would not be furnished
until the option was exercised.
On June 10 Kelly met with the building trades and asked them
to proceed with the job before the 90-day option in Merck's contract
with Briscoe expired, expressing the hope that the question as to
the assignment of the optional work would be resolved within
the next 80 days. At first, Business Agent Knudsen said he would
do so but changed his mind and withheld committing himself when
other union representatives objected and said they wanted to know
now what Merck intended to do. Kelly testified that no one at
the meeting ever stated positively whether he would or would
3 The letter was received into evidence merely to show that such letter was sent, but
not as to the truth of its contents.
OIL, CHEMICAL & ATOMIC WORKERS INT'L UNION 377
not furnish men. Following the meeting, Kelly informed Merck
that he could not get an assurance from the unions that the work
would proceed without interruption.
On June 11, Merck notified Briscoe that it would exercise the
option and award the work to Briscoe. On the same day, Kelly
told Hlavenka to request three carpenters. Hlavenka did so, but
at the time of the request he had no actual knowledge of this
award and only assumed that the dispute was settled. The carpen-
ters arrived on June 12. Also on June 12, Merck informed O.C.A.W.
that it had decided to contract out the entire project to Briscoe.
O.C.A.W. wanted Merck to change its decision and threatened
a shutdown if it did not. On July 9 the O.C.A.W. local officers
told Merck there might be a strike unless Merck assigned the
disputed work to Merck employees represented by O.C.A.W.
b. Contentions of the parties
O.C.A.W. contends that the Carpenters by its refusal to furnish
additional carpenters coerced Merck into exercising the option so
that the work in dispute would be assigned to the building trades
rather than to employees of Merck represented by the O.C.A.W.
As to the merits of the dispute, it lays claim to the disputed work
on the basis of contractual relations and past practice thereunder,
as well as its certification.
Although Merck assigned the disputed work to the building
trades unions by exercising the option in favor of Briscoe, its
position is that it initially intended and would still prefer to have
the disputed work performed by its own employees represented
by the O.C.A.W.
The Carpenters and other building trade unions contend that
there is insufficient evidence for the Board to find probable cause
that the Carpenters engaged in conduct violative of Section 8(b)
(4) (D). As to the work in dispute, the Carpenters and the build-
ing trades take the position that the subcontracting clause in Merck's
contract with O.C.A.W. does not give O.C.A.W. any clearly defined
contractual right to the work. They also assert that in awarding
the disputed work to the building trades, Merck's work assign-
ment should be accorded great weight and, moreover, that the
assignment is supported by Merck's past practice, as well as the
custom and practice in the area.
c. Applicability of the statute
Before the Board may proceed with a determination of dispute
pursuant to Section 10(k) of the Act, it must be satisfied that
there is reasonable cause to believe that Section 8 (b) (4) (D) has
been violated.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence shows that on June 12, Merck representatives met
with O.C.A.W. local officers and told them that: Merck had decided
to contract out the entire project; the O.C.A.W. exhibited distress
at the decision; on June 24 O.C.A.W. representatives told Merck
representatives that it wanted Merck to change its decision and
threatened a shutdown if it did not; around July 7 Merck's attorney
indicated there might be a strike over the dispute; and on July 9
the O.C.A.W. local officers admitted to Merck that they planned
a work stoppage at the plant because they felt the work belonged
to their members. We therefore find that there is reasonable
cause to believe that a violation of Section 8(b) (4) (D) has
occurred. Accordingly, we also find that the dispute is properly
before the Board determination under Section 10(k) of the Act.
Local 715 of the Carpenters was also charged with a violation.
However, we have already found probable cause to believe that
Section 8(b) (4) (D) has been violated. Therefore it is unneces-
sary for us to decide whether there is sufficient evidence of probable
cause to believe that the Carpenters engaged in conduct violative
of Section 8(b) (4) (D).
d. 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 dispute cases is an act of judgment based upon commonsense
and experience in balancing such factors .4 Certain of the usual
factors considered by the Board in these cases, such as certifica-
tions, skills, and efficency of operation, provide little basis for
determining the instant dispute. Although the O.C.A.W. was
certified to represent the mechanical force, the certification does
not define the work actually performed by the skilled employees.
Carpenters has never been certified. The requisite skills to perform
the work in question are possessed by members of both unions.
Neither of the rival claiming groups has advanced any persuasive
evidence that the other is less qualified to perform it.
Significant factors' remain, however. They are the Employer's
preference, contract interpretation, and past practice thereunder.
In the instant dispute, O.C.A.W.'s contract 5 with Merck provides
that the Company will not subcontract work "normally performed"
4International Association of Machinists , Lodge No. 1743, AFL-CIO (J. A. Jones
Construction Co.), 135 NLRB 1402.
5 The contract provides:
The Company will not contract out work to individuals or to other companies which
is normally performed by bargaining unit employees where the necessary equipment
is at hand , qualified employees available , project completion dates can be met and
the results would be consistent with efficient and economic operations.
OIL, CHEMICAL & ATOMIC WORKERS INT'L UNION 379
by bargaining unit employees. Pursuant to this provision, Merck
has had a mixed practice. It has contracted out most of the instal-
lation of laboratory furniture and steam lines in connection with
new construction work to companies in the construction industry
and assigned all of the installation of laboratory furniture and
steam lines in renovated projects to its own employees represented
by the O.C.A.W. However, on one occasion Merck had O.C.A.W.
employees install laboratory furniture in a newly constructed
building. Merck employees classified as pipefitters, carpenters,
electricians, tinsmiths, pipe coverers, and welders were used on
this project.
Since 1958 Merck employees have installed and hooked up
laboratory furniture in approximately 23 renovated projects and
have installed many steam lines in connection with such projects.
The evidence also shows that so far as the work in dispute is involved,
the work is the same whether done in connection with a building
which had been newly constructed or in an old building which had
been renovated. Thus new construction and renovation is not a
meaningful distinction in this case. Therefore, Merck's preference
in assigning the work to its own employees is consistent with the
subcontracting clause in its agreement with O.C.A.W.
e. Coiw usions as to the merits of the dispute
On the basis of the record as a whole, and on appraisal of the
relevant considerations, including the Employer's preference, the
skill and experience of the Employer's mechanical force in perform-
ing the work, and the collective-bargaining agreement between
O.C.A.117. and Merck, we shall determine the jurisdictional dispute
by awarding the work in dispute to employees represented by the
O.C.A.W. rather than to employees represented by the Carpenters.
Our present determination 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,
the Board makes the following Determination of Dispute pursuant
to Section 10(k) of the Act:
Mechanical force employees employed by Merck & Co., Inc., who
are represented by Local 8-575, Oil, Chemical and Atomic Workers
International Union, AFL-CIO, are entitled to perform the instal-
lation of the laboratory furniture, including the connection of
the laboratory furniture to the various service outlets in the erected
building such as electricity and plumbing. In addition, the disputed
work involves the building of a steam line from Merck's powerhouse
plant to a point near or connected to the new building.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER FANNING, dissenting :
I cannot agree with the majority's conclusion that the facts in
this case give rise to jurisdictional dispute within the meaning
of Section 10(k) and 8(b) (4) (D).
Here the Oil and Chemical Workers is the Board-certified
bargaining representative for a unit of production and maintenance
employees employed by Merck & Co. at its Rahway, New Jersey,
plant. This Union and the Company have a collective-bargaining
agreement which provides, in relevant part, that the Company
will not "contract out work to individuals or to other companies
which is normally performed by bargaining unit employees. . . ."
[Emphasis supplied.] The record shows that maintenance employ-
ees included in the Union's certified unit "normally" install furniture
in renovated projects. However, such work is "normally" performed
by employees of outside contractors in new construction. The
instant dispute arose as a consequence of a contract between Merck
& Co. and Frank Briscoe, a construction firm, to erect a new
research center at the Rahway site. At issue is the work of
installing laboratory furniture in this new center. Under the
Merck-Briscoe contract this work could be performed by employees
either of Merck or Briscoe at the option of Merck. After protests
were received from spokesmen for various building trades unions
under contract to Briscoe and his subcontractors, Merck decided
to exercise its option by assigning this work to Biscoe. The Oil
and Chemical Workers threatened to strike on the ground that the
Company had thereby breached its aforementioned contract.
On these facts the majority finds that : (1) There is reasonable
cause to believe that O.C.A.W. is in violation of Section 8(b)
(4) (D) ; (2) under its interpretation of the above contract "new
construction and renovation is not a meaningful distinction in this
case"; and (3) assigning the installation of laboratory furniture
in new construction to employees represented by O.C.A.W. is "con-
sistent with the subcontracting clause in [Merck's] agreement with
O.C.A.W."
I believe the majority is wrong in attempting to resolve this
dispute under the provisions of Sections 10(k) and 8(b) (4) (D)
for several reasons. First, accepting the majority's critical find-
ing of fact, i.e., that Merck's assignment of this work to Briscoe
would be inconsistent with O.C.A.W.'s contract and thus deprive
employees represented by O.C.A.W. of work rightfully theirs,
the literal language of Section 8(b) (4) (D) requires a dismissal
of the charge against O.C.A.W. This section provides that it
is an unfair labor practice for a labor organization to threaten
OIL, CHEMICAL & ATOMIC WORKERS INT'L UNION 381
or coerce any person where an object is to force or require any
employer to assign work to employees in one rather than another
trade, craft, or class "unless such employer is failing to conform
to an order or certification of the Board determining the bargaining
representative for employees performing such work." If, as the
majority finds, the work of installing laboratory furniture in new
construction is work covered by O.C.A.W.'s contract and within
the certified unit, I cannot understand how the majority can find
reasonable cause to believe that O.C.A.W.'s efforts to obtain this
work puts it in violation of Section 8(b) (4) (D). Indeed, as I
read this section of the Act, there can be no jurisdictional dispute
over work that comes within a particular unit for which there is
a Board-certified bargaining representative. An employer cannot
justify a failure to conform to a Board certification on the ground
that another group of employees by skill, history, tradition, custom,
and all the various criteria by which jurisdictional awards are
made is more entitled to the work. While it would be possible
theoretically to find a violation of this section where an employer
was conforming to a Board certification and an outside union
committed the offense, no award of the work could be made except
one that conformed with the certification. For the certified union
could not be precluded under this section from threatening to
strike or striking to secure the disputed work. An award to the
outside union would mean only that the employer could secure
no relief from the strike of either union, contrary to the express
purpose of this section of the Act. I must therefore conclude
that under the majority's statement of the facts in this case a
jurisdictional dispute in the statutory sense has not been established.
However, I need not and do not decide at this time the difficult
factual questions presented in this record. For I am satisfied that
the rights and obligations of these parties do not hinge upon an
analysis of the historic jurisdictional criteria whereby the Board
through the exercise, in large part, of equity and commonsense
determines which group is more entitled to perform the disputed
work. The basic issues involved in this alleged unfair labor
practice are : (1) the right of a union and an employer to make
a contract forbidding the contracting out of unit work, and (2)
the right of such a union to strike or threaten to strike as a means
of enforcing its contract. The first of these issues has been dealt
with specifically by Congress under Section 8 (e) and 8 (b) (4) (A).
The second is involved in the interpretation of Section 8(b) (4) (B).
A corollary issue of perhaps equal significance is the obligation
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of an employer under Section 8(a) (5) of the Act to bargain
with the representative of its employees with respect to the sub-
contracting of unit work, whether or not this subject is covered
in a collective-bargaining agreement. The Board and the courts
have considered the "primary" and "secondary" aspects of clauses
relating to subcontracting in a long line of cases., As the pattern
of the law evolves the legality or illegality of attempts by unions
to obtain or retain work for employees in particular units becomes
more firmly established and reasonably predictable. It is also
now clear that some, but not all, forms of subcontracting are sub-
ject to the mandatory obligation to bargain contained in Section
8(a) (5).7 These decisions of the Board and the courts represent
a painstaking effort to accommodate the complex and sometimes
conflicting objectives of Congress. Hopefully, they provide guidance
to employers, unions, and employees in the field of labor relations.
To that extent the Board may look foward to a diminution rather
than an increase in cases litigated in this difficult area of the
law. If, however, the Board is prepared in case after case to issue
a "quickie" decision under the unique provisions of Sections 10(k)
and 8(b) (4) (D), carefully established rules of law may be bypassed
or affirmed as a jurisdictional award when the issue is not who is
entitled to the work, but who, if anyone, has committed an unfair
labor practice. I firmly believe that Sections 10(k) and 8(b) (4) (D)
can be accommodated and given effect within i he framework of
the statute. I do not believe, however, that those sections should
supplant or be substitute for other provisions of the Act. To do
so is to enjoin what may be a lawful primary strike with unseenily
haste, to encourage litigation in similar cases that could be resoh'ed
by reference to an established rule, and to replace statutory and
decisional guidelines with jurisdictional "criteria" sometimes con-
flicting and often evenly balanced with respect to the right Of
either group to perform the disputed work.
Accordingly, I would not pass in this proceeding on the legality
of O.C.A.W.'s threat to strike unless it obtained the work of installing
laboratory furniture in the newly constructed research center at
Merck's Rahway, New Jersey, plant. I would quash this notice
of hearing.
6See, among others, District No. 9, International Association of Arachinivts AFL-CIO
(Greater St Louis Automotive Trimmers, etc.), 134 NLRB 1354, enfd 315 F 2d 3.
(C.A D C ) ; Truck Drivers Union Local No 415, etc (Patton Warehouse, Inc ), 140
NLRB 1474, enfd as modified 334 F 2d 539 (C.A D.C) , heat and Highway Dnr,ers, ete
Local Union No. 710, etc. (Wilson t Co.), 143 NLRB 1221, enfd as modified 335 F 2d
709 (C.ADC).
P Fsbreboard Paper Products Corp , 138 NLRB 550, enfd. sib nom East Bay Union or
Machinists , Local 1301 etc. v. NLRB, 322 F. 2d 411 (C A D.C ), affd 379 U S 203