Pipeliners Local 798

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 872 (N.L.R.B. 1969)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pipeliners Local No. 798 of the United Association
of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and
Canada , AFL-CIO and Moon Pipeline
Contractors, Inc. Case 23-CD-187
June 30, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN, AND JENKINS
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended,
following charges filed on October 2, 1968,' by
Moon Pipeline Contractors , Inc. (herein called the
Employer or Moon Pipeline), alleging that
Pipeliners Local 798 of the United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada, AFL-CIO (herein called the Pipeliners or
the Respondent), had violated Section 8(b)(4)(D) of
the Act by engaging in certain proscribed activity
with an object of forcing or requiring the Employer
to assign the work in dispute to employees
represented by the Respondent , rather than to a
group of employees alleged to be members of, and
represented by, the Carpenters ' District Council of
Houston and Vicinity (herein called the Carpenters).'
Pursuant to notice , a hearing was held before
Hearing Officer , William N. Wheat on November
20, and January 13 and 14 , 1969. The Employer
alone appeared at the initial hearing but both
parties, the Employer and the Respondent, were
represented on the two subsequent dates . As noted
above, the Carpenters made no appearance in this
proceeding . Both parties were afforded full
opportunity to be heard , to examine and
cross-examine witnesses , and to adduce evidence
bearing on the issues . The Respondent filed a brief
with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
'All dates herein refer to 1968 unless noted otherwise.
'The Carpenters made no appearance at the hearing and from record
evidence it appears that the Carpenters "is making no claim to the work
contained in the notice of hearing and has no interest whatsoever in this
proceeding ." On the other hand , it also appears from record evidence
introduced during the course of the hearing that a group of the Employer's
employees assigned the work in dispute by the Employer are claiming the
work alone, and not through the Carpenters . In this regard , the record
testimony of four employees taken in the 10(1) injunction proceeding in the
Federal District Court for the Eastern District of Texas was introduced
and received as evidence in the instant proceeding.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and the record shows, that
Moon Pipeline Contractors, Inc. is engaged in the
business of pipeline construction for the
transmission of natural gas and related products.
Since its incorporation in August the Employer, in
the operation of its business, derived gross revenues
in excess of $50,000 from employers over whom the
Board has asserted jurisdiction directly, including
Humble Oil & Refining Company (herein called
Humble), with whom the Employer currently holds
a contract in excess of $500,000. The Employer also
performed a contract involving the construction of a
gas pipeline between Texas and Louisiana, which
contract was valued in excess of $300,000.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and the record shows that
the Pipeliners and the Carpenters are labor
organizations within the meaning of the National
Labor Relations Act, as amended.
III. THE DISPUTE
A. Background
At issue in this proceeding is whether work
performed by employees in the job classification of
welders, welders' helpers, spacers, and stabbers on
the Employer's construction of approximately 8.8
miles of 20" O.D. gas pipeline from Lovell Lake
Plant, Jefferson County, Texas, to duPont de
Nemours' facility at Beaumont , Texas, for Humble
should be awarded to members of the Pipeliners or
the Carpenters, and/or to a group of employees
alleged to be claiming the work alone, and not
through the Carpenters.
Moon Pipeline was incorporated in mid-August.
Its chief stockholder, R. L. Lipsey, also owns
Lipsey, Inc. which is likewise engaged in the pipeline
construction business. For several years prior to this
time Lipsey, Inc. was party to a
collective-bargaining agreement with the Pipeliners
which, by its terms, expired on April 30, 1967. The
agreement was not renewed. However, on August 1,
Lipsey contacted Charles Balch, the general
organizer for the Pipeliners, and at a conference
between the two Lipsey indicated that he wished to
form a new corporation, Moon Pipeline, ostensibly
for tax reasons. At this initial meeting Lipsey
informed Balch that he was anxious to straighten
out any differences between himself and the Union.
Balch replied that Lipsey would have to become
party to the National Pipe Line Agreement which
agreement is basically the same as the earlier one to
which Lipsey, Inc. and the Pipeliners were
177 NLRB No. 62
PIPELINERS LOCAL 798 873
signatories. The meeting ended at this point. At
about the same time or shortly thereafter Lipsey bid
for the Humble project with the understanding that
the work was to be performed by union labor. On
August 16, Moon Pipeline was incorporated and
promptly obtained the Humble contract.
A second meeting between Lipsey and Balch was
held on August 19. Also in attendance at this
conference was R. L. Dailey a representative of
Pipeliners' Local 211 whose jurisdiction extends to
Texas. Lipsey mentioned that Moon Pipeline had
been incorporated several days before. The record
shows that Balch again offered the National Pipe
Line Agreement for Lipsey' s signature and further
demanded that the parent company, Lipsey, Inc.
also be bound as signatory. Lipsey agreed to sign if
his attorney, who was not present, approved. Before
the meeting ended Lipsey told Balch that he was
having difficulty obtaining a prejob conference on a
separate river crossing project in Louisiana. Balch
said he would contact the representative for
Pipeliners in that region and request him as a
matter of courtesy to clear the prejob for Lipsey.
This was done and the Louisiana prejob conference
was held on August 21. Balch testified that he
conditioned his assistance in arranging the prejob
conference for Lipsey on the latter' s promise to sign
the agreement with the Pipeliners . However, the
record clearly reveals that Lipsey deferred signing
the agreement until his attorney had approved it.'
The parties had a third meeting on September 12.
In attendance were Lipsey's attorney and
representatives of two other Unions normally
engaged in pipeline construction, the General
Laborers and the Operating Engineers . Lipsey,
through his counsel , stated that the agreements of
the other Unions, the Laborers and Operating
Engineers, were acceptable and would be signed and
returned, but that he wanted more time to consider
the Pipeliners' agreement . Balch and Dailey both
testified, however, that it was their understanding
that Lipsey's lawyer agreed to sign the contract.
A week later Balch received a phone call from
Lipsey's attorney who asserted that his client could
not sign the Pipeliner' s agreement because it would
bind Lipsey, Inc. as well as Moon Pipeline. There
were other features of the contract which Lipsey
could not accept, but the parent company signatory
demand was the paramount objection.
Meanwhile the Carpenters notified the Employer
that it wished to represent the employees in
question. On September 24, the Carpenters
demanded recognition and on the following day the
'Briefly, in the pipelimng industry it appears that a prejob conference is
merely a gathering of the contractor and the Unions, particularly, the
Laborers, Operating Engineers, and the Pipeliners, that normally represent
employees working on such projects. Once agreement for the job is reached
with the Unions, the employer commences the project. In the instant job,
which gave rise to this work dispute the Employer signed agreements with
the Laborers and Operating Engineers only. However, on the Louisiana
River crossing project the Employer signed agreements with representatives
of all three Unions.
Employer, satisfied that the Union did represent a
majority, granted recognition. A contract was signed
that same day by the Carpenters' representative, E.
R. Rainwater, and Moon Pipeline. The Carpenters
claimed representation of the welders, welders'
helpers, spacers, and stabbers. Work commenced on
the Humble project on September 30, and the next
day the Pipeliners established a picket line on Moon
Pipeline's Humble job, complaining of "Non-union
labor - substandard wages-Local 798." Picketing
occurred at the main gate to a tank farm of a
petroleum company which had granted a
right-of-way to the Employer.
Within a week the Carpenters notified the
Respondent that it no longer claimed the work in
question. Thereafter, pursuant to a 10(1) injunction
proceeding, the Pipeliners were enjoined from
further action in support of their demand that the
work in the four classifications mentioned above and
assigned to the Employer's welders, helpers, spacers,
and stabbers be assigned to it.
B. The Work in Dispute
The Humble project involves the laying of 8.8
miles of 20" O.D. gas pipeline from a tank farm at
Lovell Lake, Jefferson County, Texas to the duPont
de Nemours facility in Beaumont, Texas. At the
time of the hearing most of the work had been
completed.
With the one exception of spacing, the work calls
for relatively skilled labor. Specifically, there are
three basic pipelining functions: (1) the "stabbing"
or placement of a length of pipe in the ditch, (2) the
"spacing" or alignment of the two joints to be
welded, and (3) the actual connection itself
performed by a welder with the assistance of a
helper. All these jobs are essential to the
construction of pipeline as a conduit of high
pressure combustibles and these classifications and
the duties described thereby would exist whether or
not the employees so engaged were
union-represented.
C. The Contentions of the Parties
The Employer in assigning the pipefitting work to
welders, welders' helpers, spacers, and stabbers
represented by the Carpenters, relies on its
bargaining agreement with the Carpenters executed
on September 25 and, in the alternative, on the
assertion that the employees assigned the work
claim it themselves. The Employer argues that for
some time it has had many employees who have not
been represented by the Pipeliners. In addition, the
Employer asserts that there is a sufficiently large
pool of unrepresented welders, welders' helpers,
spacers, and stabbers in the area where it has laid
pipe and that it is from this reserve of efficient
workmen that the Employer chooses to select its
employees. The record shows that there are other
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractors in the area who likewise operate without
union-represented employees. According to the
Employer, to protect its longtime employees who
wished not he represented by the Pipeliners, the
Employer refused to accept the National Pipe Line
Agreement which by its hiring hall terms would
entitle the Pipeliners to place up to one-half of its
members in the four categories listed above.
Further, this agreement and the hiring hall provision
contained therein would apply to employees of the
parent company, Lipsey, Inc. Of some significance
in this regard is the absence of a similar hiring hall
clause in the Carpenters' agreement. To
recapitulate, the Employer contends that the
Carpenters are still bound by their agreement, but if
it is found that the Carpenters indeed disclaimed
representation, the employees on the job claim the
work for themselves.
The Pipeliners makes several contentions, but
primary among these is the alleged oral contract it
consummated with the Employer before the latter
formerly executed its agreement with the
Carpenters. It is also argued by the Pipeliners that
the Carpenters' agreement was brought about by
collusion and that since then a higher authority
within the Carpenters has dislcaimed representation
of the Employer' s spacers , stabbers, welders, and
welders' helpers. Furthermore, the Respondent
claims that it has historically represented employees
in the above classifications; at present it represents
the overwhelming majority of such employees while
the Carpenters rarely represents such employees in
these job categories. In terms of apprenticeship
programs, the Pipeliners refers to its welding school,
but does not allege that the workers now performing
the work are unskilled or in any way unsuited to
handle the work assigned to them.
D. Applicability of the Statute
The charge, which was duly investigated by the
Regional Director, alleges a violation of Section
8(b)(4)(D) of the Act. The Regional Director found
that there was reasonable cause to believe that a
violation had been committed and directed that a
hearing be held in accordance with Section 10(k) of
the Act. On the basis of the entire record, including
the Pipeliners' picketing because of the assignment
of the disputed work, we find that there is
reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that the dispute
is properly before the Board for determination.
E. The 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 of various relevant factors.
'N L R B. v. Radio Television Broadcast Engineers Union Local 1212,
International Brotherhood of Electrical Workers ( Columbia Broadcasting
System). 364 U.S 573, International Association of Machinists, Lodge
Certain of the usual factors considered by the
Board in these cases, such as Board certifications,
skills , area and industry practice, arbitration or
jurisdictional awards, and provisions of
collective-bargaining agreements and International
Constitutions, in our opinion, provide little basis for
determining the instant dispute. Rather, initial
determination of the merits of this dispute turns on
the disposition of two threshold issues: namely, (1)
whether the Carpenters disclaimed representation
and, if so, whether the Board, nevertheless, retains
jurisdiction pursuant to Section 10(k) and (2)
whether the Pipeliners reached an agreement with
the Employer to represent its employees. The record
clearly indicates that the work was originally
assigned to welders, helpers, stabbers, and spacers
claiming to be represented by the Carpenters which
had negotiated a bargaining agreement with the
Employer. It is equally clear that the Carpenters
attempted to disclaim representation, but not the
contract itself, whereupon the employees in question
claimed the work themselves and not through the
Carpenters. Therefore, we recognize that the real
dispute is between these employees and the
Respondent.
During the course of the hearing both the
Employer and the Respondent moved to quash the
notice of hearing . The parties reasoned that for the
Board to exercise its jurisdiction under Section 10(k)
there must be competing claims of two unions.
While this is certainly the usual situation it is too
restrictive an interpretation of the Section 8(b)(4)(D)
and does not obtain where, as here, the individual
employees to whom the jobs were assigned claim the
work. That is, the polarity contemplated in Section
8(b)(4)(D) is preserved, and the injury Congress
sought to prevent is present, whether two unions or
a union and a group of employees stake competing
claims to the disputed work.
Efforts by the Pipeliners to show that the
Employer had agreed to its contract are, in our
opinion , unpersuasive. Although there is evidence
that the Pipeliners thought it had an agreement in
the offing and even helped obtain a prejob
conference clearance on another project for the
Employer as a show of good will and that this
beneficence assuredly heightened the Respondent's
rising expectations for an agreement, nevertheless,
on balance, we are unable to ascribe significant
weight to these considerations because the record
indicates that throughout its negotiations with the
Pipeliners the Employer adamantly refused to enter
into any agreement which would also bind Lipsey,
Inc. and thus present the imminent possibility of
No 1743, AFL-CIO (J A. Jones Construction Company). 135 NLRB
1402, 1411.
'Although a jurisdictional dispute does not exist as between two "labor
organizations," there is nonetheless a jurisdictional dispute within the
meaning of the Act, as amended . See N.L R B v. Local 1291,
International Longshoremen 's Association , 368 F 2d 107 (C.A 3), cert
denied 386 U.S. 1033
PIPELINERS LOCAL 798 875
loss of jobs to its employees who chose not to
become members of the Pipeliners . The record
reveals that the Pipeliners ' representative , Charles
Balch , was not authorized and therefore unwilling to
alter certain terms of the National Pipe Line
Agreement and it was precisely these two
conditions , the hiring hall and parent company
inclusion clauses , which the Employer refused to
accept . Even though the parties might well have
been in substantial accord on the other terms of the
contract , it was over these two subjects that the
stalemate was created . Accordingly , we are unable
to rind , on the basis of the record before us, a
binding agreement between the Employer and the
Respondent.
As noted above , some factors the Board normally
considers are not present in this case. However,
other factors do appear on which we may rely for
making an assignment of the work in dispute. Thus,
with regard to relative skills the record indicates
that the employees performing the disputed work
are qualified skilled or semiskilled workers . Indeed,
the most skilled of these are the welders , and testing
the integrity of their work is of such importance to
the owner of the pipeline that on each project he,
and not the union , the pipeline contractor, or any
one else , is the ultimate arbiter of the welders ' skill.
The welders currently assigned to this project have
met these qualifications . Accordingly , it appears
that the employees currently performing the work in
dispute are fully qualified and are performing the
work to the satisfaction of the Employer and of
Humble . In addition , in terms of company, area,
and industry practice there is evidence that Moon
Pipeline , Lipsey, Inc., and several other pipeline
contractors in the area , at least with respect to the
type of work in dispute , normally operate with
employees who are not represented by the
Respondent . While it is true that the majority of
welders in the area and , indeed , in the industry as a
whole are represented by the Pipeliners or other
locals of its International , nevertheless there is a
sufficient ready reserve of nonunion welders, helpers,
stabbers , and spacers available to the pipeline
contractors who wish to operate without represented
employees.
On the basis of the record before us, we are
constrained to conclude that the work in dispute was
properly assigned to the employees now claiming the
work for themselves. However, because of the
unusual fact situation of this case , and in the
absence of evidence supporting a broader work
assignment award , we limit our determination and
award to the particular construction project involved
in this proceeding.
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
case, the National Labor Relations Board makes the
following Determination of Dispute:
1. Employees employed by Moon Pipeline
Contractors, Inc., and claiming the work in dispute
are entitled to perform the duties of welders,
welders' helpers, stabbers, and spacers in the
construction of 8.8 miles of 20" O.D. gas pipeline
for Humble Oil & Refining Company.
2. Pipeliners Local No. 798 of the United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act
to force or require Moon Pipeline Contractors, Inc.,
to assign the above-described work to its members.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Pipeliners Local No.
798 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting
Industry shall notify the Regional Director for
Region 23 , in writing , whether or not it will refrain
from forcing or requiring Moon Pipeline
Contractors, Inc., by means proscribed by Section
8(b)(4)(D) of the Act, to assign the work in dispute
to its members rather than to welders, welders'
helpers, spacers , and stabbers employed by Moon
Pipleine Contractors, Inc.