The Heating, Piping & Air Conditioning Contractors

THE HEATING, PIPING & AIR CONDITIONING CONTRACTORS 261 the Board, under the circumstances, finds appropriate for the pur- poses of collective bargaining. On the other hand, if a majority of the employees in either voting .group (1) or (2), or both, do not vote for the labor organization which is seeking to represent them in a separate unit, the employees in such group or groups will be included in the overall unit and their votes pooled with those of voting group (3),10 and the Regional Director conducting the elections is instructed to issue a certification of representatives to the labor organization selected by a majority of the employees in the pooled group which the Board, in such cir- cumstances, finds to be a unit appropriate for the purposes of collective bargaining. [Text of Direction of Elections omitted from publication.] io If the votes are pooled , they are to be tallied in the following manner : The votes for the union seeking the separate unit shall be counted as valid votes , but neither for nor against the union seeking to represent the more comprehensive unit; all other votes are to be accorded their face value, whether for representation by the union seeking the com- prehensive group or for no union. THE HEATING, PIPING & AIR CONDITIONING CONTRACTORS, CINCINNATI ASSOCIATION and JOURNEYMEN PIPEFITTERS LOCAL No. 392, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL,' PETITIONER 'CINCINNATI MASTER PLUMBERS ASSOCIATION and PLUMBERS AND GAS FITTERS LOCAL UNION No. 59, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL,2 PETITIONER. Cases Nos. 9-RC-2218 and 9-RC-2259. October 6, 1954 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National -Labor Relations Act, the above-entitled cases were consolidated by order of the Regional Director for the Ninth Region and a hearing on -the consolidated cases was held before William G. Wilkerson, hearing .officer .3 The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed .4 The hearing officer Herein called the Pipefitters. x 1 lerein called the Plumbers. s As the record and briefs adequately present the issues and positions of the parties, we deny the Plumbers' request for oral argument. * The Plumbers , Sheet Metal Workers International Association , Local 141 , and the International Hod Carriers , Building and Common Laborers Union of America , Local 265, AFL, none of whom claimed to represent directly any of the pipefitters involved , were per- mitted by the hearing officer to intervene specially in Case No . 9-RC-2218, on the basis of their assertion that the certification of the Pipefitters would adversely affect their juris- dictional interests with respect to the crafts they represent The Pipefitters , who do not .seek to represent the plumbers involved in Case No . 9-RC-2259, were likewise permitted 110 NLRB No. 34. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD referred to the Board the Pipefitters' motion that the order of con- solidation be rescinded. Consolidation of cases is a matter for administrative discretion.5 Moreover, as the Board is considering the contentions of each petitioner separately the interests of the Pipefitters have been in no way prejudiced by the consolidation. Accordingly, we deny the motion.' Upon the entire record in these cases, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act. 2. The Pipefitters and the Plumbers claim to represent employees of the Employer. 3. The Unions that were permitted to intervene in Case No. 9-RC-2218 contend that no question of representation exists in that case because the Employer therein has, for many years, recognized the Petitioner as the bargaining representative of the employees of its contractor-members, and because such Employer presently has a contract with the Petitioner and is willing to continue to so deal with the Petitioner in the future. It is well settled, however, as the Peti- tioner contends, that the fact that a petitioning union is recognized by an employer does not preclude the existence of a question concern- ing representation. The filing of a petition expressing a desire for a certification is itself sufficient to raise such a question.' It is further contended that as a policy matter the Board should refuse to assert its jurisdiction in either of these cases, for the reason that the certi- fication of craft representatives in the building and construction industry would seriously impede the settlement of the frequent juris- dictional disputes that the Plumbers claim to be peculiarly indigenous to this industry.' In making this contention the Plumbers ask the Board to overrule the Board's contrary ruling on a similar contention presented in The Plumbing Contractors Association of Baltimore, Maryland, case.9 We have considered the Board's ruling on this issue in that case and, for the reasons there stated,1° have decided to adhere to intervene specially In that case because of the interventions peimitted in Case No 9-RC-2218 Under the circumstances, the hearing officer 's rulings were proper . See Den- ver Heating, Piping and Air Conditioning Contractors, 99 NLRB 251, p. 252 5 See Roadway Express, Inc, 108 NLRB 874 B E. I Dupont de Nemours and Company ( Dana plant ), 107 NLRB 1504. 7 California Inland Broadcasting Company , 106 NLRB 1259, General Box company, 82 NLRB 678-683 8 The Plumbers, however, also indicated that if this contention is rejected by the Board they desire the Board to proceed with the processing of their petition 9 93 NLRB 1081, 1084-1089 10 As we explained in that case , pp 1087-1088, a Boaid certification in a repre- sentation proceeding is not a jurisdictional award , it is merely a determination that a majority of the employees in an appropriate unit have selected a particular labor organiza- tion as their representative for purposes of collective bargaining It is true that such certification presupposes a determination that the group of employees involved constitute an appropriate unit for collective bargaining purposes , and that in making such deter- initiation the Board considers the general nature of the duties and work tasks of such em- ployees However , unlike a jurisdictional award, this determination by the Board does not freeze the duties or work tasks of the employees in the unit found appropriate Thus, THE HEATING, PIPING &; AIR CONDITIONING CONTRACTORS 263 to the Board's position in that case. Accordingly, we reject the Plumbers contention that jurisdiction should not be asserted in these cases. We find that questions affecting commerce exist concerning the representation of the employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate units : In Case No. 9-RC-2218, the Pipefitters seeks a unit of all pipefitters and pipefitter apprentices employed by contractor-members of the Employer, Heating, Piping and Air Conditioning Association. In Case No. 9-RC-2259, the Plumbers seeks a unit of all plumbers and plumbers apprentices employed by contractor-members of the Employer, Master Plumbers Association. Each Employer is anon- profit Ohio corporation organized for the purpose of representing its, contractor-members in collective bargaining. Each Employer has for many years effectively bargained with the respective Petitioners for a unit of employees of its contractor-members, and all contractor-lnem- bers of each Employer have been bound by the contracts that have been negotiated and signed by the respective Employers. It appears, moreover, that both the pipefitters and the plumbers sought herein are true craftsmen, such as the Board has consistently held may be represented separately for purposes of collective bargain- ing.11 Both categories of employees, before they are considered to be journeymen in their trades, must successfully complete a 5-year apprenticeship program involving formal classroom studies, in addi- tion to working for this period of time alongside a journeyman in the craft. The employees sought in each unit are not required to. perform skills other than those traditionally associated with their respective crafts. In such circumstances we find that the two groups sought by the Pipefitters and the Plumbers unions constitute separate homogeneous craft groups, and as such constitute separate appropri- ate bargaining units.12 the Board's unit finding does not per se preclude the employer from adding to, or subtract- ing from, the employees' work assignments . While that finding may be determined by, it does not determine, job content ; nor does it signify approval , in any respect of any work task claims which the certified union may have made before this Boaid or elsewheie. "While a certified union may be able , through collective bargaining, to secure a contract assigning to its members certain specified work tasks which may impinge upon the claimed jurisdiction of other unions , such a contract may also be secured without certification, as witness the current contract between the Petitioner and the Association There is, there- fore, no necessary connection between a certification and a contract assigning work tasks; nor would a Board certification stimulate the result feared by the Intervenors." See also : Denver Heating, Piping and Air Conditioning Contractors, 99 NLRB 251, 254, footnote 13; Marine Iron & Shipbuilding Company , 108 NLRB 172 , footnote 3. ii Denver Heating, Piping and Air Conditioning Contractor,, supra, footnote 9. "Although , as noted, the Pipefitters petitioned for all employees of the contractor-mem hers of the Employer in Case No 9-RC-2218, at the hearing it agreed with that Employer that the scope of the unit could be limited to the territorial jurisdiction of the Pipefitters, which consists of the counties listed in the text In view of the unusual nature of the construction industry which requires contractors to transfer the employment situs to wherever they are able to obtain a contract , and noting '264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the foregoing and the entire record in these cases, we find the following described units to be appropriate for purposes of collective bargaining : In Case No. 9-RC-2218: All pipefitters and pipefitter apprentices -employed by contractor-members of the Employer, The Heating, Piping & Air Conditioning Contractors, Cincinnati Association, in -the counties of Hamilton, Warren, Clermont, and Brown, in the State ,of Ohio; the counties of Dearborn, Ohio, and Ripley in the State of Indiana; and the counties of Kent, Campbell, Boone, Grant, Pendle- ton, Mason, Brackett, Owens, and Gallatin in the State of Kentucky, excluding all supervisors as defined in the Act. In Case No. 9-RC-259: All plumbers and plumber apprentices employed by contractor-members of the Employer, Cincinnati Master Plumbers Association, in the counties of Hamilton, Warren, Clermont, and Brown in the State of Ohio, and the counties of Dearborn, Ohio, and Ripley in the State of Indiana, excluding all supervisors as 'defined in the Act. 5. The stability of the units involved : The Plumbers contend that the composition of the unit in Case No. '9-RC-2218 is not sufficiently stabilized to warrant the holding of an election.13 We disagree. The record indicates that there are approx- imately 225 to 250 pipefitters presently employed. by the Employer, Heating Contractors Association, which figure represents the expected minimal employment. The maximum number of pipefitters employed by the Employer-Association during the past 6 months has been approximately 300. Some of the pipefitters shift from contractor to contractor, about 50 percent of the time working for contractors who 'are not members of this Employer. However, approximately 175 of the pipefitters presently employed work regularly the year round for the same contractor-members of the Employer. In all of these circumstances we find that employment in the unit 'sought by the Pipefitters is sufficiently stable to warrant an election to be held therein.14 [Text of Direction of Elections omitted from publication.] the precise geographical boundaries provided by the various counties named above, we agree that the territorial extent of the unit may be so described. In so doing , we note that no other party has sought herein to represent the pipefitters in a different unit. More- over, we emphasize that we are in no way attempting to make a jurisdictional award in the sense of job content or work assignments. See The Plumbing Contractors Association ,of Baltimore, Maryland, Inc., 93 NLRB 1081, 1086-1088 See also, St. Regis Paper Com- pany, 104 NLRB 411, 415 For the same reasons, we shall limit the territorial extent of the unit sought by the Plumbers to the counties likewise listed in the text 13 All parties agree that the unit sought by the Plumbers is sufficiently stabilized to war- rant the holding of an immediate election. 14 The Plumbing Contractors Association of Baltimore, Maryland, supra, pp. 1091-1092. See Independent Lock Company of Alabama, 106 NLRB 1136 ; Denver Heating, Piping, and Air Conditioning Contractors, supra, pp. 254-255.