Building & Construction Trades Council of Portland

BUILDING & CONSTRUCTION TRADES COUNCIL OF PORTLAND 753 Building and Construction Trades Council of Port- land and Vicinity, Sheet Metal Workers Local 16, AFL-CIO, Plumbers and Pipefitters Local 51, AFL-CIO and Siegler Service Company, Charg- ing Party, and International Chemical Workers Union Local 766, AFL-CIO, Party to Contract. Case 36-CD-43 February 12, 1968 Oregon and were delivered to Siegler Service Com- pany from points directly outside the State of Oregon or directly from persons who in turn received said goods and materials directly from points outside the State of Oregon. We find that the Employer is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdic- tion herein. DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , follow- ing a charge filed by the Siegler Service Company, herein called the Employer , on August 25, 1967, al- leging that the Building and Construction Trades Council of Portland and Vicinity acting as agent for Sheet Metal Workers Local 16, AFL-CIO, herein called Sheet Metal Workers , and Plumbers and Pipefitters Local 51, AFL-CIO, herein called Plumbers, had violated Section 8(b)(4)(D) of the Act. Pursuant to notice , a hearing was held at Port- land, Oregon, on October 9 and 10 , 1967, before Hearing Officer Dale Cubbison. The Employer, the International Chemical Workers Union , Local 766, AFL-CIO, herein called Chemical Workers, and the Building Trades Council for itself and for the Sheet Metal Workers and Plumbers appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the Hearing Officer made at the hear- ing are free from prejudicial error and are hereby af- firmed. Thereafter, the Employer filed a brief be- fore 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 powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated to the following facts: Sie- gler Service Company is an Oregon corporation wholly owned by Lear Siegler, Incorporated, a California corporation. Siegler Service Company is engaged in the sale, servicing, installation, replace- ment, and repair of heating and air-conditioning equipment. Siegler Service Company purchased during the year preceding the hearing in excess of a hundred thousand dollars worth of goods and materials which originated outside the State of II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find , that the Building and Construction Trades Council of Port- land and Vicinity , the Sheet Metal Workers Local 16, AFL-CIO, the Plumbers and Pipefitters Local 51, AFL-CIO, and the International Chemical Workers Union Local 766, AFL-CIO, are labor or- ganizations within the meaning of the Act. III. THE DISPUTE A. The Work in Issue; Background Facts Forty percent of the Employer's business is derived from the installation of ductless heating equipment owned and leased by Northwest Natural Gas Company pursuant to contracts with that com- pany. Another 40 percent of its business is derived from sales, service, and installation of central heat- ing equipment. The remainder of its business is derived from miscellaneous installation, repair, and rebuilding services. Siegler employs approximately 14 employees at its Portland, Astoria, and Eugene, Oregon, loca- tions. Its employees, who are currently represented by the Chemical Workers, are classified as working foremen and senior and junior gas-burning-equip- ment installers. The work performed and in dispute, the installa- tion of heating and air-conditioning equipment, in- volves cutting and fitting of pipe and prefabricated sheet metal ducts and vents. The sheet metal items are prefabricated to fit the particular job and only minor cutting is required. The Employer generally assigns only one employee to each job to install the equipment and duct work, except that an additional employee may assist in setting the heavy heating or cooling unit in place. The installer assigned to the job cuts and fits sheet metal duct work and vents and also cuts, threads, fits, and pressure tests the gas pipes, in each case using the appropriate sheet metal, pipefitting, or testing tools. Specifically, the installer connects and runs a gas pipe "downstream" from the meter to the furnace and connects the pipe to the furnance. He also runs a prefabricated sheet metal vent to the flue, generally through the roof. When installing a central heating unit, the employee must also install sheet metal ducts which pass hot air to various rooms in the 169 NLRB No. 118 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD house. These ducts are prefabricated and only in- volve fitting the duct work together with occasional minor alterations. He then pressure tests the pipe, purges the line of air, lights the unit, and tests it in operation. Manufacture of sheet metal vents and ducts as well as electrical work is subcontracted. B. Applicability of the Statute In a proceeding under Section 10(k) of the Act, the Board is required to find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. For this purpose, the Board must find evidence in the record supporting the belief that the charged labor organization has engaged in or in- duced, or encouraged a strike, or has threatened, coerced, or restrained any person engaged in com- merce, with an object of forcing an employer to as- sign certain work to employees in a particular labor organization or trade rather than to employees in another labor organization or trade. In April 1967 the Employer received a letter from the Building Trades Council, written on behalf of the Sheet Metal Workers, requesting that the Employer appear before its executive board to discuss "why action should not be taken against [the Employer] for paying less than the recognized wages and working conditions for the area." The Employer made no reply. The matter was sub- sequently discussed at a meeting between the Em- ployer and the Multnomah County Labor Council, at which the Employer informed the Council that he already had a contract with the Chemical Workers. Shortly after the Employer began performing cer- tain work for general contractor Duane Jeremiah in July 1967, Building Trades Council representative Earl Kirkland called Jeremiah and informed him "that there was no agreement between ... Siegler Service Company and the Portland Building Trades Council and that there would have to be agreement in order for the job to run amiably." (Emphasis sup- plied.) Siegler Manager Herman Ebert also testified that at a subsequent meeting representative Kirk- land threatened him with "economic measures" unless he acquiesced in the demands of the Building Trades Council. Kirkland denied using the word "economic." Jeremiah and Ebert both testified that, about a week later, Jeremiah called Ebert and told him to take his men off the job if he could not get the matter straightened out with the Building Trades Council. While Ebert further testified that Jeremiah stated that he was requiring this action in response to Kirkland's threat that Kirkland would otherwise "close the job," Jeremiah denied having made such a statement. Jeremiah's prehearing affidavit, how- ever, indicated that Kirkland had twice so threatened him. I The record indicates that when the contract was executed, an im- proper expiration date had been included, and that, in February 1967, representatives of the Employer and the Chemical Workers corrected the The evidence indicating that Kirkland told Jere- miah and Ebert that the Employer would have to come to an agreement with the Building Trades Council in order for the job to run "amiably," and that unless the Employer acquiesced in the Coun- cil's demands the Council would take economic measures against the Employer and Jeremiah's company, supports a conclusion that there is reasonable cause to believe that a violation of Sec- tion 8(b)(4)(D) was committed. "Economic mea- sures" could only have meant those weapons of picketing and boycott in the arsenal of the Union the use of which the Act frowns upon in jurisdic- tional disputes. We find, therefore, without resolving the conflicts in testimony, that there is reasonable cause to be- lieve that the Building Trades Council, acting for the Plumbers and the Sheet Metal Workers, em- ployed unlawful measures with an object and pur- pose of forcing the Employer to assign the disputed work only to members of the Plumbers and the Sheet Metal Workers. Accordingly, the dispute is properly before the Board for determination. C. 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 to various relevant factors, and the Board has held that its determination in ju- risdictional dispute cases is an act of judgment based upon commonsense and experience in balancing such factors. The following factors are relevant in support of the contentions of the parties herein. 1. Collective-bargaining agreement Siegler Service has had a bargaining agreement with the Chemical Workers since November 1966.1 The Plumbers, the Sheet Metal Workers, and the Council have had no contracts with the Company. 2. Company, area, and industry practice The area practice is not clearly defined. The Chemical Workers has a contract with another Sie- gler gas heating company in Seattle, Washington, and also with six other gas-equipment installers in the Pacific northwest. While the Sheet Metal Work- ers has contracts with companies which do some gas-heating installation in the Oregon area, these companies are primarily engaged in plumbing or sheet metal work and secondarily engaged in heat- ing and air conditioning. The Plumbers Union also does some gas-piping work in the Portland area, but the extent to which this work is related to gas-heat- ing installation is not clear. mistake to their mutual satisfaction and have in fact to this date followed the terms of the contract BUILDING & CONSTRUCTION TRADES COUNCIL OF PORTLAND 3. Skills of the employees The Plumbers and the Sheet Metal Workers receive more training and undergo a more rigorous examination of their abilities in their respective spe- cialties. However, none of these employees appear to be especially trained to install and test furnaces. The duties and operations involved in the installa- tion of the heating and air-conditioning units are such that the training and skills of employees who are represented by the Chemical Workers are suffi- cient to carry out all of the requisite operations. All of these latter employees attend a school of instruc- tion conducted by Northwest Natural Gas Com- pany and receive specialized on-the-job training. The Employer is apparently satisfied with the skills of its employees, 4. Efficiency and economy of operations As discussed above, except for assistance in its placement, the installation of a unit requires the at- tention of only one employee. That employee runs the pipe from the meter, tests the pipe for pressure, attaches the pipe to the furnace, purges the line of air, connects the ducts and vents, and tests the complete unit in operation. He is able to accomplish this by himself in a single operation. If the Plumbers and Sheet Metal Workers were to be assigned the work, the job would involve a number of different craftsmen, each performing a minor specialized operation and returning at different times to the same job. The result would be a fragmented opera- tion with increased costs, more complicated scheduling of workers, and more time required to complete the job. We are not impressed with the argument that em- ployees who are represented by the Plumbers are trained to perform a stricter pressure test on pipelines. If the Employer, its customers, and the State of Oregon are satisfied with the safety stand- ards met by the Employer and the Chemical Work- ers, it would not appear that safety can be deemed a significant factor favoring the plumbers in this work assignment. Conclusions Based upon the entire record and after full con- sideration of all relevant factors involved, including 755 the Employer's assignment, the current bargaining contract , the nature of the disputed work , the com- parable skills of the competing employees , and the economical and efficient operation of the work as currently assigned , we think that the work assign- ment as made by the Employer is proper. We shall determine the dispute before us by awarding all in- stallation, repair, and service of heating and air-con- ditioning equipment, including the fitting of pipe and prefabricated ducts and vents attendant thereto , to those employees represented by the In- ternational Chemical Workers Union Local 766, AFL-CIO, but not to that union or its members. This determination is limited to the particular con- troversy giving rise to this dispute. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended , and upon the basis of the foregoing findings, the National Labor Rela- tions Board hereby makes the following Determina- tion of Dispute: 1. Employees of Siegler Service Company who are represented by International Chemical Workers Union Local 766, AFL-CIO, are entitled to per- form the work of installing , repairing, and servicing heating and air-conditioning equipment in Portland and vicinity. 2. The Building Trades Council of Portland and Vicinity, Sheet Metal Workers Local 16, AFL-CIO, and Plumbers and Pipefitters Local 51, AFL-CIO, are not, and have not been , entitled, by means proscribed by Section 8(b)(4)(D ) of the Act, to force or require Siegler Service Company to as- sign the above work to its members. 3. Within 10 days from the date of this Decision and Determination of Dispute , Building Trades Council of Portland and Vicinity , Sheet Metal Work- ers Local 16 , AFL-CIO, and Plumbers and Pipefitters Local 51, AFL-CIO, shall notify the Regional Director for Region 19, in writing, whether they will or will not refrain from forcing or requiring the Employer, by means proscribed by Section 8 (b)(4)(D), to assign the work in dispute to employees represented by the Plumbers and/or Sheet Metal Workers , rather than to employees represented by the Chemical Workers. 350-212 0-70-49