United Assn. of Journeymen & Apprentices

National Labor Relations Board - Board DecisionsOct 10, 1973

206 N.L.R.B. 316 (N.L.R.B. 1973)

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , AFL-CIO, Local 798 and Oil, Chemical Si Atomic Workers International Union, AFL-CIO, Local 4-449 and Booth Services, Inc. Case 16-CD-106 October 10, 1973 DECISION AND DETERMINATION OF DISPUTE Texas to its construction sites located within the State of Texas. Accordingly, we find that the Employer is 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. H. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that Local 798 and OCAW are labor organizations within the mean- ing of Section 2(5) of the Act. BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed by Oil, Chemical, and Atomic Workers International Union, AFL-CIO, Local 4-449 (herein called OCAW), alleging that Local 798, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the Unit- ed States and Canada, AFL-CIO (herein called Local 798), violated Section 8(b)(4)(D) of the Act by engag- ing in certain proscribed activity with an object of forcing or requiring Booth Services, Inc. (herein called the Employer or Booth), to assign certain work to employees represented by Local 798 rather than to employees represented by OCAW. Pursuant to notice, a hearing was held before Hear- ing Officer Evert P. Rhea on May 21 and 22, 1973. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-exam- ine witnesses, and to adduce evidence bearing on the issues. The Employer and OCAW filed briefs with the Board.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer is a Texas corporation engaged in the construc- tion of pipelines. It annually purchases materials and supplies valued in excess of $50,000, which materials and supplies are shipped from outside the State of i Local 798's brief was rejected as untimely filed. I THE DISPUTE A. Background and Facts The Employer was incorporated in the spring of 1972, but its employees were not represented by any labor organization and it had not entered into any collective-bargaining agreements until August 1972. During the summer of 1972, Booth was awarded a contract to build approximately 186 miles of 36-inch pipeline between points near Cayanosa, Texas, and Sweetwater, Texas (herein referred to as the Midland job). The contract provided that Booth would use automatic welding machines? Subsequently, Booth held meetings with representatives of OCAW and Lo- cal 798' to explore the possibility of entering into an agreement under Section 8(f) of the Act. On August 14, 1972, Booth held a meeting with representatives of Local 798, as well as Operating En- gineers Local 819 and Laborers Local 38. During the course of the meeting, Local 798's International or- ganizer , Charles Balch, told the Employer' s represen- tatives that automatic welding would not work, that it had not worked, and that Local 798 would see to it that it would not work. Thereafter, on or about Au- gust 17, Booth entered into a collective-bargaining agreement with OCAW which covered all pipeline work, including that done by welding crews, heavy equipment operators, laborers, and truckdrivers. The Midland job began on September 5, 1972. Lat- er in September, Local 798' s business agent, J. T. Holloway, and a representative of Laborers Local 38 met with M. E. Shiflett, the chairman of Booth's board of directors, in an attempt to get Booth to reas- sign the work to Local 798 and the other unions with which Local 798 worked. Shiflett lold Holloway that Booth could not avoid its contract with the,OCAW 2 During the course of the hearing in this case , Local 798's witnesses disputed the quality of welds made with an automatic welding machine. Although Local 798 represents only welders , helpers, and journeymen (spacers, stabbers, and clampmen), they work in conjunction with the Labor- eres, the Operating Engineers , and the Teamsters, who supply the remaining members of the pipelaying crews. At the time the Employer met with repre- sentatives of Local 798, it also met with representatives of Laborers Local 38 and Operating Engineers Local 819 206 NLRB No. 93 UNITED ASSN. OF JOURNEYMEN & APPRENTICES and that it would not assign the work to Local 798. On October 21, both of Booth's field offices for the Midland job (located at Midland and Colorado City, Texas) were picketed by Operating Engineers Local 819 and Laborers Local 38. Local 798 , joined and assisted in this picketing. Thereafter, Booth filed un- fair labor practice charges which were withdrawn when Local 798 agreed to stop the picketing. In mid-January 1973, Booth representatives met Tom Upchurch, the attorney for Locals 798, 819, and 38, at Upchurch's request. Upchurch told the repre- sentatives that OCAW had no way to enforce its con- tract with Booth and that Local 798 (as well as Locals 819 and 38) was willing to enter into a contract with Booth. Booth's president, M. S. Williams, told Up- church that OCAW had informed him that it had every intention of upholding the contract. In February, Booth was awarded a contract for the construction of a 36-inch pipeline from Stephenville, Texas, to a point northeast of Midlothian, Texas (herein called the Granbury job).4 Pursuant to a request by Holloway, Booth represen- tatives met with him on February 28. During the meeting, Holloway asked the Booth representatives to exercise the 60-day cancellation clause in their con- tract with OCAW. When the representatives declined, Holloway stated that the pipelines were within Local 798's jurisdiction and that Local 798 would do ev- erything it could to enforce that jurisdiction. On or about March 14, Holloway wrote a letter to Booth in which he stated that Local 798 no longer sought an agreement with Booth. The letter also stat- ed that Local 798 would protest any job within its jurisdiction on which Booth's payment of wages and fringe benefits were less than those which had been established through negotiations with Local 798. On March 27, Local 798 established a picket line at the Granburyjob field office. The picket signs stated that Booth did not pay wages and benefits negotiated by Local 798 in that area. The signs also stated that Local 798 did not seek a contract or seek to organize the employees. The picketing ended on April 5, fol- lowing the filing of the charge in this proceeding. B. The Work in Dispute The work in dispute consists of three basic pipelin- ing functions: (1) the "stabbing" or placement of a length of pipe in the ditch, (2) the "spacing" or align- ment of the two joints to be welded, and (3) the actual connection itself performed by welders with the assis- tance of helpers. 4 We hereby grant the joint motion by all the parties to reopen the record and insert therein a stipulation that the Cranbury job should be completed on or before June 30, 1973. C. Contentions of the Parties 317 Local 798 contends that its members have histori- cally performed this work and that 95 percent of this work in the United States is performed by members of Local 798 and its sister locals. Local 798 further contends that its members have a long history of satis- factory performance of this work and that its mem- bers are the best trained to perform it. OCAW claims that it is under contract to perform the disputed work; that its members have performed the work in a satisfactory manner; and that it has had no trouble in providing as many qualified people as the Employer has requested. The Employer contends that it is most efficient for it to assign the work to OCAW since the latter will provide all the workers needed for the job. The Em- ployer also contends that, under a contract with Local 798, it would be required to have a helper for every welder, which it states is not necessary when using automatic welding machines. The Employer further contends that Local 798 has made it clear that it is opposed to the use of automatic welding machines.' D. Applicability of the Statute Before the Board may proceed with a determina- tion 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, and that there is no agreed-upon method for the voluntary settlement of the dispute. The record establishes that Local 798 picketed the Employer's jobsites during October 1972 and March 1973, apparently in an attempt to have the pipelaying work reassigned to employees it represented.6 We find that there is reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred. It is undisput- ed that no voluntary means of adjusting the dispute exists. 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 all relevant factors. As the Board has stated, its determination in a jurisdictional dispute case is an act of judgment based on commonsense and experience in the weighing of these factors? The fol- 5 The record establishes that members of Local 798 are capable of operat- ing automatic welding machines We note that, although the picket signs at the Granbury job purported to protest Booth's wages and benefits, Business Agent Holloway admitted at the hearing that he did not know what wages and benefits were being paid by Booth. International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lowing factors are relevant in making a determination of the dispute before us: 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board in regard to the dis- puted work. Consequently, certification is not a fac- tor. At the time the dispute arose, the Employer had a collective-bargaining contract with OCAW covering the disputed work. The Employer has never had a similar contract with Local 798. The existence of the contract favors the Employer's assignment of the work. work were assigned to Local 798, under existing in- dustry practice, the Employer would have to sign and administer contracts with at least two other unions. Furthermore, the National Pipeline Agreement, un- der which Local 798 operates, requires that there be a helper for each welder. The Employer's contract with OCAW contains no such requirement, and the Employer has found that, with the use of automatic welding machines, it is not necessary for each welder to have a helper. Testimony adduced by the Employer indicates that if the work were assigned to Local 798, pursuant to the National Pipeline Agreement, the Em- ployer would have to hire approximately 12 addition- al helpers. We find that assignment, preference, and efficiency of operation favor the Employer' s assign- ment. 2. Skills and experience The record indicates that it is the practice in this industry for employers to test the proficiency of all welders before hiring them. Thus, no matter whether OCAW or Local 798 provides the welders, they must meet a certain minimum skill requirement. Although Local 798 has represented employees in this industry for a longer period of time, the record establishes that employees represented by OCAW have performed satisfactorily for the Employer. We find that the evi- dence concerning skills and experience does not favor either party. 3. Area and industry practice Local 798 represents a majority of the employees in the United States engaged in pipeline construction, while OCAW is a recent newcomer to the industry. However, Local 44-449, OCAW does have na- tionwide jurisdiction of employees in this industry, and it has entered into a number of collective-bar- gaining contracts with employers engaged in con- struction of pipelines. On the whole, we feel that the area and industry practice, if considered alone, would tend to favor an assignment of work to Local 798. 4. The Employer's assignment, preference, and efficiency of operation As indicated above, the Employer operated without union representation before signing a collective-bar- gaining contract with OCAW, and thereby assigning the disputed work to it. Thus, this work has never been assigned to the members of any other union. The Employer prefers the assignment of this work to members of OCAW for reasons of economy and efficiency. In this respect, the record shows that if the Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved , we-conclude that Booth's employees represented by OCAW, Local 4-449 , are entitled to perform the work in dispute. We reach this conclusion based on the Employer 's collec- tive-bargaining contract with the OCAW, the fact that employees represented by OCAW possess the skills to perform the work , and such assignment will result in greater efficiency , economy , and continuity of opera- tions. The present determination is limited to the par- ticular controversies which gave rise to this proceeding, and in making it we are assigning the disputed work to the employees of Booth who are currently represented by OCAW, but not to that union or its members. Scope of Award Booth request us to issue a broad work award cov- ering the type of work in dispute here throughout the United States. We are not convinced that the instant record shows a proclivity on the part of Local 798 to resort to unlawful conduct in support of its claim to the work except in connection with the jobs treated herein. Accordingly, we hold that the issuance of an award broader than Booth's construction on the Mid- land and Granbury jobs is not appropriate in this case.8 DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the B See, e.g., Southern California Pipe Trades District Council No. 16,• Plum- bers & Steamfitters Local No 582 (Kimstock Division, Tridair Industries, Inc.), 198 NLRB No. 182. UNITED ASSN. OF JOURNEYMEN & APPRENTICES 319 foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Booth Services , Inc., who are cur- rently represented by Oil, Chemical & Atomic Work-' ers International Union, AFL-CIO, Local 4-449, are entitled to perform the work of welders , including bead welders , strip welders, and automatic welding machine operators ; and welding helpers, spacers, stabbers , and clampmen, on pipelines being built by Booth between points near Cayanosa and Sweetwa- ter, Texas , and from Stephenville , Texas, to a point northeast of Midlothian , Texas. 2. Local 798 of the United Association of Journey- men 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 Booth Serv- ices, Inc., to assign the above work to employees rep- resented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 798 of the Unit- ed Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada AFL-CIO, shall notify the Re- gional Director for Region 16, in writing, whether or not it will refrain from forcing or requiring the Em- ployer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by Local 798 rather than to employees represented by OCAW.