United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada

LOCAL 211 , UNITED ASSOCIATION OF JOURNEYMEN 463 LOCAL 211, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL and OIL WORKERS INTERNATIONAL UNION, CIO and ETHYL CORPORATION. Case No. 39 - CD-10. December 21, 1953 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10 (k) of the Act, which provides that "whenever it is charged that any person has engaged in an unfair labor practice within the meaning of para- graph ( 4) (D) of Section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen . . . ." On June 10, 1953, Oil Workers International Union, CIO, herein called the Oil Workers , filed with the Regional Director for the Sixteenth Region a charge against Local 211, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL, herein called the Pipefitters , alleging , among other things, that it had engaged in and was engaging in certain activities proscribed by Section 8 (b) (4) (D ) of the amended Act. It was alleged, in substance , that the Pipefitters had induced and en- couraged employees of the Employer to engage in a concerted refusal to work in the course of their employment with an ob- ject of forcing or requiring Ethyl Corporation , herein called the Employer , to assign particular work to members of the Pipefitters rather than to employees who are members of the Oil Workers. Pursuant to Section 102.71 and 102.72 of the Board's Rules and Regulations , the Regional Director investigated the charge and provided for an appropriate hearing upon due notice to all the parties . Thereafter , a hearing was held before Willis C. Darby, Jr., hearing officer , on June 22 and 23, 1953. The Employer was permitted to intervene and to participate fully in the hearing . All parties 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 issue . The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed.' All parties filed briefs with the Board. The Employer ' s request for oral argument is hereby denied as the record and briefs adequately present the issues and the positions of the parties. Upon the entire record in the case, the Board makes the following: 'The Employer excepts to the hearing officer 's ruling rejecting certain evidence concern- ing a charge filed against the Pipefitters in Case No. 39 -CD-8. In view of our determination herein, we deem it unnecessary to pass on this ruling of the hearing officer. 107 NLRB No. 125. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Ethyl Corporation is a Delaware corporation and its recently activated plant at Pasadena, Texas, which is the only plant in- volved in this proceeding, is engaged in the manufacture, dis- tribution, and sale of Ethyl brand of antiknock compound. Ethyl Corporation annually purchases supplies and materials valued in excess of $1,000,000 from points located outside the State of Texas, and annually sells and ships products valued in excess of $1,000,000 to points outside the State of Texas. We find that the Employer is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 211, United Association of Journeymen and Appren- tices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL, and Oil Workers International Union, CIO, are labor organizations within the meaning of the Act. III. THE DISPUTE A. The facts In May 1952 the Employer began operations at itsPasadena, Texas, plant. On December 29, 1952, following Board-directed elections ,' the Oil Workers was certified by the Board as bargaining representative for the production and maintenance unit, and the Pipefitters was certified for separate units of pipefitters and welders, respectively, at this plant. During the spring of 1953, the Employer engaged in negotiations with these and other unions. Except for the Pipefitters, contracts were executed with all the unions. Negotiations between the Employer and the Pipefitters began on March 31, 1953. At the first meeting, the Pipefitters de- manded that the contract cover not only pipefitters and welders, but also "all pipe and welding work in the plant. " The Em- ployer stated that this could not be done without violating the Board certifications in that the cell mechanics and shift mechanics, part of whose work was claimed by the Pipefitters, were included in the production and maintenance unit for which the Oil Workers had been certified. At the next meeting, on April 7, 1953, the Pipefitters again made this demand and the Employer suggested that the Pipefitters work out some mutually acceptable plan with the other unions. Further meet- 2 Ethyl Corporation, 101 NLRB 435. Oil Workers also won in, and was certified for, separate units of instrument mechanics and substation operators; International Brotherhood of Elec- trical Workers, Local Union No. 716, AFL, herein called IBEW, in a separate unit of elec- tricians; and Sheet Metal Workers International Association, Local Union No. 45, AFL, in a separate unit of metal workers. LOCAL 211, UNITED ASSOCIATION OF JOURNEYMEN 465 ings were held during the month of April. At a meeting on April 30 the Pipefitters asserted that "it would take all the pipefitting and all the welding work to get the contract signed" and that "they were going to get all that pipe work [the pipe work performed by cell mechanics and shift mechanics] or they would put up a picket line if it was necessary to get it" and maintain it for "twenty years, if necessary." At additional bargaining sessions between April 30 and June 4, work assign- ments, although not discussed in detail, remained in issue, as did wage demands. During the afternoon of June 8, Eddleman, a cell mechanic, was engaged in cutting and threading pipe for use on cell bases on the pipe machine in the cell-mechanic shop. Miller, spokes- man for the Pipefitters, approached him and told him he was going to have him pulled off the pipe machine, saying, among other things, " we are going to get it; we are holding up on our wage negotiation until we settle our dispute on the jurisdictions around here," and "if we don't get it settled, we will pull the men out of the plant." The next day, June 9, the above incident was discussed at the bargaining session . The Employer's representative, Kennedy, restated its position on work assignments and repeated that it was not changing its policy or practice. At this juncture, the Pipefitters' contingent got up and walked out. Union witness Miller testified at the hearing that the Pipefitters had decided to break off negotiations because the Employer would not de- part from its established policy or practice. There was further testimony that some in the Pipefitters' group stated that there probably would be a picket line in the morning. When Plant Manager Bergin asked why they were walking out, Union Repre- sentative Mask said, "We'll call it wages." This meeting, at which jurisdiction was the main subject of discussion, lasted approximately 15 minutes. The parties met again later in the day. Over 90 percent of this meeting was taken up with a dis- cussion of the work of the cell mechanics, shift mechanics, and others, and at one point union spokesman Quinn said, "Well, it looks like we are doing only about fifty percent of the work in this plant. It looks as though the company is asking for trouble here." After additional talk, partly as to wages , Quinn turned to Mask and told him to get his boys and take them out. The following morning (June 10), the pipefitters and welders, along with the electricians and metalworkers, failed to report to work, and the Pipefitters concededly established a picket line. That afternoon, the Employer received a telegram from the Pipefitters stating that the picket line was being maintained "because of low rate of pay only" and that it would be removed if the Employer granted the $2.52 per hour they were de- manding. A letter to like effect followed. On the same day, the Oil Workers filed Section 8 (b) (4) (D) charges with the Board. On June 11, the Employer obtained a restraining order in the State District Court, and the picket line was removed. On June 12, the Pipefitters' attorney wrote the Employer's at- 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD torney, again asserting that the picket line was established because of a failure to agree as to wages , and offering to with- draw the issue over work assignments from the negotiations. However, the letter also stated that the Pipefitters will leave the clarification of the work assignments to the Board. And at the hearing , counsel for the Pipefitters stated that it would petition for clarification if "not satisfied with work assign- ments," and that until that is done, "there is no way of knowing whether or not we are dissatisfied with the present work assignments." The electricians and metalworkers returned to work on June 12. The pipefitters and welders did not return to work until June 18. B. Contentions of the parties The Oil Workers contends that this is a dispute within the meaning of Sections 8 (b) (4) (D ) and 10 (k); that the fact that some other demand by the Pipefitters may have been in issue at the time of the strike does not detract from the fact that the principal reason for the strike was the Pipefitters ' jurisdic- tional claim for work assignments ; and that, on the merits, the disputed work belongs in the unit covered by the Oil Work- ers' certification. The Employer , like the Oil Workers, contends , in substance, that the strike called by the Pipefitters was to force or re- quire the Employer to assign to the Pipefitters work historically performed in the plant by employees in the unit represented by the Oil Workers; that this was violative of Section 8 (b) (4) (D) and properly the subject of a Section 10 (k) hearing ; that the Employer had not, in the language of the statute, violated any order or certification of the Board ; and that the Pipefitters had no right to the disputed work under any existing contract or certification. The Pipefitters denies that it violated Section 8 (b) (4) (D), contending that the sole reason for the June 10 strike and picketing was the failure of the Employer to pay employees bargained for by the Pipefitters the same wage that the Em- ployer had agreed to pay the employees bargained for by IBEW, but does not argue the merits of the work assignments. IV. APPLICABILITY OF THE STATUTE The Pipefitters contends , in effect , that the events preceding the strike and certain letters and telegrams sent to the Em- ployer after the strike began show that the sole purpose of the Pipefitters was to obtain a higher wage . We do not agree. We are satisfied from the record , includingthe facts detailed above, that the principal purpose of the June 10 strike and picketing was to force or require the Employer to assign the disputed work to employees represented by the Pipefitters rather than to employees of the Employer who were repre- LOCAL 211, UNITED ASSOCIATION OF JOURNEYMEN 467 sented by the Oil Workers. Although the Pipefitters attempted to explain the activities of June 10 on other grounds, the letters and telegrams relied on by the Pipefitters do not, in our opinion, negate the factual sequence of events as shown in the record. Moreover, the Board has held that it is immaterial if in addition to an unlawful objective, another object of a strike is a permissible one.3 Under the circumstances, we find that there is reasonable cause to believe that the Pipefitters violated Section 8 (b) (4) (D) of the Act.4 Accordingly, we find that this is a dispute within the meaning of Sections 8 (b) (4) (D) and 10 (k) of the Act, and therefore properly before us for determination. V. THE MERITS OF THE DISPUTE We view the dispute here essentially a disagreement between 2 unions over the question whether certain disputed work be- longs in one or the other of 2 existing bargaining units. Although the Pipefitters did not, at the hearing or in its brief, state its position as to the merits of the dispute under discussion, it was implicit in its position which gave rise to this proceeding that certain work of the cell mechanics and shift mechanics belonged in the units covered by its Board certifications. The Oil Workers contends that the Board de- cision in the representation case on which the certifications were based did not reassign work from one group in the plant to another; that the groups carved out were those composed of a definitely described group of craftsmen only; and that certain welding and pipefitting work done as an incident to the regularly assigned work of cell mechanics and shift mechanics had been historically assigned to employees in the production and main- tenance unit, and should continue to remain there. The Em- ployer agrees, in effect, with the position stated by the Oil Workers, and asserts affirmatively that its right to assign work to its employees covered by the existing certifications should not be interfered with by the pressure of one of the bargaining agents in the plant. In its decision in the representation proceeding the Board described the duties of the Employer's 22 pipefitters and 6 helpers and 8 first-class welders. Voting groups of pipefitters and welders were established. In establishing such groups, the Board relied on the facts in the record showing that no other 3United Brotherhood of Carpenters and Joiners of America (Wadsworth), 81 NLRB 802, enfd. 184 F. 2d 60 (C. A 10); United Brotherhood of Carpenters and Joiners of America (Watson's), 341 U. S. 707. affirming 181 F. 2d 126 (C A 6), enforcing, 80 NLRB 533; Wine, Liquor R. Distillery Workers Union (Schenley), 78 NLRB 504, enfd. 178 F 2d 584 (C. A. 2). 4The Board made it clear in Truck Drivers and Chauffeurs Union (Direct Transit Lines), 92 NLRB 1715, that in a Section 10 (k) proceeding it is necessary to establish a prima facie showing, i e. probable cause, that a violation occurred, and not, as the Pipefitters contends, proof by a preponderance of the evidence that the unfair labor practices were committed. That burden rests on the General Counsel in the later Section 8 (b) (4) (D) proceeding before a Trial Examiner, if that becomes necessary. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees were assigned to do the work of the pipefitters and although some welding work was done by other employees, such work was minor and incidental to other work being performed. Included in these voting groups were only those employees who worked primarily , if not exclusively , in the pipefitter and welder classifications. Conversely, as the cell mechanics and shift mechanics performed a variety of maintenance tasks, and were therefore not readily identifiable with either the pipe- fitters or the welder groups, they were included in the produc- tion and maintenance unit. Indeed, the Pipefitters, when they were apprised of the duties of the mechanics under considera- tion, did not consider them as being properly part of the craft units sought in its petitions . Nor did it seek to represent them in separate units. The record before us in the present proceeding shows no substantial or permanent changes in work assignments since the representation proceeding was concluded .' The cell me- chanics continue to work on all piping on the sodium cells in the cell room, and have performed this work exclusively since the plant began operations. Similarly, they continue to weld, cut, and thread pipe in connection with building and repairing the cells , and to operate the pipe machine in the cell -mechanic shop. This work is done exclusively in the sodium-cell room and shop. The shift mechanics continue todomaintenance work of all types such as metal work, carpentry, and pipe work on one of the shifts . The operators in the cell room continue to remove and install pipe in the cells. In view of the foregoing , and as the Pipefitters here repre- sented no new facts which would warrant a new and different disposition of the unit questions , we find that the employees performing the work in dispute have interests in working con- ditions more closely related to those of the production and maintenance employees than to the employees in the pipefitter and welder units.' DETERMINATION OF DISPUTE On the basis of the foregoing findings of fact and upon the entire record in this case, the Board makes the following de- termination of dispute , pursuant to Section 10 (k) of the amended Act: 1. The classifications of cell mechanic and shift mechanic at the Employer ' s plant in Pasadena , Texas, are included in 5 When the plant first started, 2 employees classified as welders performed the welding work in the cell room. Later, at the request of the welders , 2 employees qualified to do welding work, were hired in the cell mechanic classification, and the regular welders no longer perform this work This change was contemplated at the time of the representation hearing . A pipefitter temporarily performed the work of a shift mechanic on the second shift, but when the plant settled down to normal operations , he was transferred to perform the regular duties of his classification on the day shift 6 We are not, however, by this action to be regarded as "assigning" certain pipe and weld- ing work to the Oil Workers. LOCAL 211, UNITED ASSOCIATION OF JOURNEYMEN 469 the bargaining unit presently represented by Oil Workers International Union, CIO, and not in the bargaining units now represented by Local 211, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL. 2. Within ten ( 10) days from the date of this Decision and Determination of Dispute , Local 211 , United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL, and Oil Work- ers International Union, CIO, and Ethyl Corporation, shall each notify the Regional Director for the Sixteenth Region, in writing, of the steps it has taken to comply with the terms of this Decision and Determination of Dispute. Member, Murdock , dissenting: Again I am compelled to disagree with a majority, of the Board in its disposition of this proceeding under Section 10 (k) of the Act. In no case "decided'' by the Board heretofore in a Section 10 (k) proceeding has it been so obvious that the proceeding is not only futile and unnecessary but that , in fact, it detracts from the clarity of the unit findings in a previous representa- tion proceeding conducted by the Board under Section 9 of the Act by reconsidering unit contentions disposed of by the prior representation case decision, direction of elections , and sub- sequent certifications. We have here two unions which have been certified to repre- sent employees in certain bargaining units defined in the repre- sentation case . On the facts found by the majority one of the unions has exerted pressure upon the Employer in order to force it to recognize that union as the representative of certain employees included in the unit for which the other union was certified as bargaining representative by the Board. This force was exerted upon the Employer to require it to engage in bar- gaining which would be in derogation of the certification of the Board. Conduct of this type would seem to fall within the scope of Section 8 (b) (4) (C ). Recourse to that Section of the Act would appear to be an effective way to reach such conduct, whereas a recourse to Sections 10 (k) and 8 (b) (4) (D) is a waste of the time and resources of the parties and of the Board. A reading of the "Decision and Determination of Dispute" approved by the majority in this case makes it clear that Sec- tion 10 (k) has been distorted and stretched to include pro- ceedings which Congress did not intend to be within Section 10 (k). I have , in a series of cases, previously set forth my position as to the criteria which, in my opinion , should be met before the Board attempts to arbitrate a dispute under Section 10 (k), and it is not necessary for me to repeat those standards here. As shown by the representation case decided by the Board (101 NLRB 435), the classifications of cell mechanic and shift mechanic were included in the production and maintenance unit represented by Oil Workers International Union, CIO. The 47 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority has repeated that conclusion in its "Determination of Dispute" herein. As if to leave no doubt, however, as to the fact that this is being handled as a representation case, the ma- jority, in its opinion states," . . . and as the Pipefitters here presented no new facts which would warrant a new and differ- ent disposition of the unit questions, we find that the employees performing the work in dispute have interests in working con- ditions more closely related to those of the production and maintenance employees than to the employees in the pipe- fitter and welder units." It is inconceivable to me that Con- gress intended appropriate unit questions to be relitigated in a Section 10 (k) proceeding. But that is not all--for, after having conformed Section 10 (k) to encompass a representa- tion proceeding, the majority further compounds confusion by stating, "We are not, however, by this action to be regarded as `assigning ' certain pipe and welding work to the Oil Work- ers." Whatever this may mean in its context, I doubt that it will serve these parties or any others who come before the Board as that clear delineation of rights and that signpost to future conduct which should be essential characteristics of a Board decision. For the reasons appearing above, I would quash the notice of hearing under Section 10 (k). LOCAL 1083, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO and ALLIED INDEPENDENT UNIONS, C.U. A., Petitioner. Case No. 13-RC-3479. December 21, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Helene Zogg, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the close of the hearing, the Employer moved to dismiss this proceeding. For the reason hereinafter stated, the motion is granted. The Employer operates a commissary located on the plant premises of Kearney & Trecker Corporation at West Allis, Wisconsin, where it sells lunches, sandwiches, beverages, and other miscellaneous items to the employees working in the plant. The Employer pays a rental for the location to Kearney & Trecker Corporation, and retains the commissary profits for its own purposes. The Employer's executive board is responsible for management of the commissary, and controls the hiring and discharge of commissary employees. The commissary annually purchases foodstuffs and supplies amount- ing to more than $100,000, or which approximately $ 10,000 is 107 NLRB No. 107.