Steamfitters, No. 572, United Association, Etc.

National Labor Relations Board - Board Decisions

Jun 2, 1965

152 N.L.R.B. 1117 (N.L.R.B. 1965)

STEAMFITTERS, NO. 572, UNITED ASSOCIATION, ETC. 1117
WE WILL make good to the above-named persons, with interest, all their pay
losses resulting from their having been deprived of employment with Astrove
Plumbing and Heating Corp.
All applicants are free to begin work, all employees are free to remain at work, and
all employers above named are free to hire or retain empoyees on the basis of their
judgment concerning suitability without regard to membership or nonmembership
in our Union, except only in the event that a contract is made requiring membership
in our Union as a condition of employment, and in that event, as the law prescribes,
membership will not be required, in the construction industry earlier than after the
7th day and in all other industries after the 30th day, following the beginning of such
employment, or following the date of the contract, whichever is later; and no person
will be denied or deprived of employment where membership was not made available
on equal terms with other members or was denied or terminated for reasons other
than failure to tender the uniformly required periodic dues or initiation fees.
LOCAL UNION No. 2 OF THE UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE PLUMBING
AND PIPEFITTING INDUSTRY OF THE UNITED STATES
AND CANADA, AFL-CIO,
Labor Organization.
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.
Any employees or applicants for employment, employers or members or repre-
sentatives of the Union having a question concerning the above notice or what it
requires may ask in person or by mail or telephone of the Board's Regional Office,
Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone
No. 751-5500.
Steamfitters, Local 572, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO.' and Compudyne-Regan-
Acme, a Joint Venture, P.B.S., Inc. , Ernst Nager , M. B. Elec-
tronics, and O. G. Kelly & Co .2 Case No. 26-CD-2O. June 2,
1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by CRA, alleging
that the Pipefitters has threatened, coerced, or restrained its subcon-
tractors and other persons engaged in commerce or in an industry
affecting commerce, with an object of forcing or requiring CRA to
assign the work of operating a mass-spectrometer machine to employ-
ees who are members of, or represented by, Pipefitters, rather than to
the employees of CRA who are not members of that labor organization.
A hearing was held before Hearing Officer Kay P. Fisher on March 17,
1965, at which all parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to adduce evidence bear-
I referred to as, Pipefitters or the Union.
2 Compudyne-Regan :Acme, hereinafter referred to as CRA, is the general contractor
for the project involved herein. P.B.S, Inc, Ernst Nager, H B. Electronics, and O. G.
Kelly & Co, are all subcontractors of CRA
152 NLRB No. 115.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing on the issues. The rulings of the Hearing Officer made at the hear-
ing were free from prejudicial error and are hereby affirmed. No
briefs have been filed by any interested party.
Upon the entire record in this case , the National Labor Relations
Board I makes the following findings :
1. CRA is a joint venture comprising Compudyne Corporation, a
Pennsylvania corporation , Regan Construction Company, Inc., a New
York corporation , and Acme Missile & Construction Company, a Dela-
ware corporation . CRA is engaged in the construction of the Mark I
environmental chamber for the Mark I Aerospace Simulator Project
at Arnold Air Force Base in Tennessee . CRA has subcontracted
mechanical and piping work to P.B.S., Inc., electrical work to Ernst
Nager , vibration system work to M.B . Electronics , and construction
and installation of the vacuum chamber to O. G. Kelly & Co. The par-
ties stipulated and we find that all of the above -named companies are
engaged in commerc e, within the meaning of the Act.4
2. The Pipefitters is a labor organization within the meaning of the
Act.
3. The dispute :
(a) Basic facts
The work involved herein is the operation of a mass-spectrometer.
The mass-spectrometer is a machine which is used by CRA to test
vacuum piping for leakage and resultant loss of vacuum. As indicated
above, CRA subcontracted the work of piping on this project to P.B.S.,
Inc., and, by the terms of its contract with P.B.S., Inc., agreed to sup-
ply a mass-spectrometer and the personnel to operate it throughout the
development of the project. The mass-spectrometer was first used in
the spring of 1964 for a period of about 4 weeks, and was operated by
the unrepresented employees of CRA. There was no claim for the
work by the Union or any other party at that time.
Testing on vacuum piping installed by employees of P.B.S., Inc.,
started in August or early September 1964. This work was performed
by technicians employed by CRA, assisted by an electrician and a pipe-
fitter.5 The CRA technicians performed all the operations of the mass-
spectrometer and directed the work of their assistant.
Testing of the vacuum piping continued in this manner until the
second. week in December. About then, Stevens, the union job steward,
accompanied by three pipefitters, employees of P.B.S., Inc., advised the
iPursuant 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]
4 During the preceding 12-month period , CRA purchased and received goods and prod-
ucts from directly outside the State of Tennessee valued In excess of $500,000 for use
on this project. During a like period , all subcontractors involved have received goods
and products directly from outside the State valued in excess of $50,000.
5 The work of the assistants is not here in dispute. - -
STEAMFITTERS, NO. 572, UNITED ASSOCIATION, ETC. 1119
CRA general superintendent, Sam Wilson, that the work of operating
the mass-spectrometer was pipefitters' work. Wilson told Stevens to
contact the union business agent so that the problem could be discussed.
Later that day, Stevens informed Wilson that he had called the busi-
ness agent and the business agent had informed Stevens that operation
of the mass-spectrometer was pipefitters' work and there was no need
for a discussion. CRA's superintendent refused to assign the operation
of the mass-spectrometer to the pipefitters and the pipefitters walked
off the job.
A meeting was held between the Union's International representa-
tive, its business agent, and representatives of P.B.S., Inc., and CRA.
At this meeting, the International representative declared that opera-
tion of the mass-spectrometer was pipefitters' work. It was finally
agreed that the Union would provide two pipefitters who would be
trained in the operation of the spectrometer by the CRA technicians.
Pipefitter McKnight was made available under this agreement. He
was trained for several days by the technician but was found not quali-
fied to operate the mass-spectrometer. Another pipefitter, Griswald,
was trained for several days, and he did not prove satisfactory either.
In view thereof, on January 13, 1964, CRA resumed testing vacuum
parts using its own technicians on the mass-spectrometer, whereupon
all the pipefitters, employees of P.B.S., again walked off the job. Two
days later, a picket line was put up at Gate 3, the gate set aside for con-
struction workers at Arnold Air Force Base. A picket carried a sign
which read: "This job unfair to Pipefitters."
(b) Contentions of the Parties
CRA's position is that the operation of the mass-spectrometer is work
belonging to its technicians who are not members of the Pipefitters. It
claims that its prior assignments of this work show a history of assign-
ment to its technicians. It points to the contract with P.B.S., Inc., for
installation of the piping which provides that testing of pipes and
operation of the mass-spectrometer for testing will be done by enlploy-
ees'provided by CRA. It also maintains that the disputed work is
technical in nature requiring experienced technicians such as it
employs.
It is the Pipefitters' position that the testing of all work done by
pipefitters belongs to pipefitters. It alleges that pipefitters have al-
ways tested work which they have installed ; a witness testified to this
effect.
(c) Applicability of th e statute
The charges, which were duly"investigated by the Regional Direc-
tor, alleged violation of Section 8(b) (4) (D) of the Act, and the
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director was satisfied upon the basis of such investigation
that there was reasonable cause to believe that a violation had been
committed.
On the basis of the entire record, we find that there was reasonable
cause to believe that a violation of Section 8(b) (4) (D) had occurred
and that the dispute is properly before the Board for determination
under Section 10(k) ."
(d) Merits of the Dispute
In International Association of Machinists (J. A. Jones Construc-
tion Company), 135 NLRB 1402,1410, the Board set forth the follow-
ing criteria to be considered in the making of an affirmative award :
... The Board will consider all relevant factors in determining
who is entitled to the work in dispute, e.g., the skills and work
involved, certifications by the Board, company and industry prac-
tice, agreements between unions and between employers and
unions, awards of arbitrators, joint boards, and the AFL-CIO in
the same or related cases, the assignment made by the employer,
and the efficient operation of the employer's business....
As stated above, the work in dispute in this case is the operation of
the mass-spectrometer. A Pipefitters' witness claimed that testing on
pipefitting work installed by members of that Union is traditionally
work of pipefitters, and that work similar to that in issue herein is
performed by pipefitters at the nearby Oak Ridge, Tennessee, Federal
installation. However, no evidentiary support for the claim of tradi-
tional jurisdiction was supplied, and the work at Oak Ridge admittedly
involves the operation of a different type of vacuum testing machine.
The record is therefore inconclusive as to any industrywide or areawide
practice bearing upon the instant dispute. Nor does its disclose any
applicable Board certification, contract, or award.
An Employer witness testified without contradiction as to the inabil-
ity of the two individuals referred by the Pipefitters to perform the
work in dispute and of the substantial training and experience required
to satisfactorily operate the mass-spectrometer. From the beginning,
CRA has chosen to assign the work to its own employees. These
employees are specially trained to operate the machines, it has been
shown that it is efficient to use them, and CRA desires to continue to use
their services. The record is devoid of any persuasive reason for upset-
ting this assignment. In the circumstances, it is our determination
e At the hearing , the Union's attorney stated:
The business representative of Steamfitters Local 572 asserts that Steamfitters
Local 572 has no collective bargaining agreement or other contractual relationship
with C.R.A. that they are not laying any claim to work being performed by C R A.,
and they disclaim any interest in or right to insist on furnishing of men to C R.A.
for the operation of the mass-spectrometer.
THE OHIO RUBBER COMPANY, ETC. 1121
that CRA's employees are entitled to perform the disputed work of
operating the mass-spectrometers. This determination is limited to
the particular controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in
the case, the Board makes the following Determination of Dispute,
pursuant to Section 10(k) of the Act:
1. Employees of CRA who are currently unrepresented are entitled
to operate the mass-spectrometer.
2. Steamfitters, Local 572, 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) to force or require CRA to assign such operation
of the mass-spectrometer to employees engaged as pipefitters, who are
represented by it.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Steamfitters, Local 572, 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 26, in writing, whether or not it will refrain from
forcing or requiring CRA by means proscribed by Section 8 (b) (4) (D)
to assign the work in dispute to pipefitters rather than to employees
of CRA.
The Ohio Rubber Company, a Division of the Eagle -Picher Com-
pany and United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO. Case No. 26-CA-1799. June 2, 1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Wellington A. Gillis issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and recommended dis-
missal as to them. Thereafter, Respondent filed exceptions to the Deci-
sion and a supporting brief.
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 [Chairman McCulloch and Members Fanning and Brown].
152 NLRB No. 112.
789-730-66-vol. 152-72