Pipeliners Local 798

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pipeliners Local No. 798 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO and Moon Pipeline Contractors, Inc. Case 23-CD-187 June 30, 1969 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following charges filed on October 2, 1968,' by Moon Pipeline Contractors, Inc. (herein called the Employer or Moon Pipeline), alleging that Pipeliners Local 798 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (herein called the Pipeliners or the Respondent), had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign the work in dispute to employees represented by the Respondent, rather than to a group of employees alleged to be members of, and represented by, the Carpenters' District Council of Houston and Vicinity (herein called the Carpenters).' Pursuant to notice, a hearing was held before Hearing Officer, William N. Wheat on November 20, and January 13 and 14, 1969. The Employer alone appeared at the initial hearing but both parties, the Employer and the Respondent, were represented on the two subsequent dates . As noted above, the Carpenters made no appearance in this proceeding . Both parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The Respondent filed a brief with the Board. 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. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. 'All dates herein refer to 1968 unless noted otherwise. 'The Carpenters made no appearance at the hearing and from record evidence it appears that the Carpenters "is making no claim to the work contained in the notice of hearing and has no interest whatsoever in this proceeding ." On the other hand , it also appears from record evidence introduced during the course of the hearing that a group of the Employer's employees assigned the work in dispute by the Employer are claiming the work alone, and not through the Carpenters . In this regard , the record testimony of four employees taken in the 10(1) injunction proceeding in the Federal District Court for the Eastern District of Texas was introduced and received as evidence in the instant proceeding. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and the record shows, that Moon Pipeline Contractors, Inc. is engaged in the business of pipeline construction for the transmission of natural gas and related products. Since its incorporation in August the Employer, in the operation of its business, derived gross revenues in excess of $50,000 from employers over whom the Board has asserted jurisdiction directly, including Humble Oil & Refining Company (herein called Humble), with whom the Employer currently holds a contract in excess of $500,000. The Employer also performed a contract involving the construction of a gas pipeline between Texas and Louisiana, which contract was valued in excess of $300,000. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and the record shows that the Pipeliners and the Carpenters are labor organizations within the meaning of the National Labor Relations Act, as amended. III. THE DISPUTE A. Background At issue in this proceeding is whether work performed by employees in the job classification of welders, welders' helpers, spacers, and stabbers on the Employer's construction of approximately 8.8 miles of 20" O.D. gas pipeline from Lovell Lake Plant, Jefferson County, Texas, to duPont de Nemours' facility at Beaumont, Texas, for Humble should be awarded to members of the Pipeliners or the Carpenters, and/or to a group of employees alleged to be claiming the work alone, and not through the Carpenters. Moon Pipeline was incorporated in mid-August. Its chief stockholder, R. L. Lipsey, also owns Lipsey, Inc. which is likewise engaged in the pipeline construction business. For several years prior to this time Lipsey, Inc. was party to a collective-bargaining agreement with the Pipeliners which, by its terms, expired on April 30, 1967. The agreement was not renewed. However, on August 1, Lipsey contacted Charles Balch, the general organizer for the Pipeliners, and at a conference between the two Lipsey indicated that he wished to form a new corporation, Moon Pipeline, ostensibly for tax reasons. At this initial meeting Lipsey informed Balch that he was anxious to straighten out any differences between himself and the Union. Balch replied that Lipsey would have to become party to the National Pipe Line Agreement which agreement is basically the same as the earlier one to which Lipsey, Inc. and the Pipeliners were 177 NLRB No. 62 PIPELINERS LOCAL 798 873 signatories. The meeting ended at this point. At about the same time or shortly thereafter Lipsey bid for the Humble project with the understanding that the work was to be performed by union labor. On August 16, Moon Pipeline was incorporated and promptly obtained the Humble contract. A second meeting between Lipsey and Balch was held on August 19. Also in attendance at this conference was R. L. Dailey a representative of Pipeliners' Local 211 whose jurisdiction extends to Texas. Lipsey mentioned that Moon Pipeline had been incorporated several days before. The record shows that Balch again offered the National Pipe Line Agreement for Lipsey' s signature and further demanded that the parent company, Lipsey, Inc. also be bound as signatory. Lipsey agreed to sign if his attorney, who was not present, approved. Before the meeting ended Lipsey told Balch that he was having difficulty obtaining a prejob conference on a separate river crossing project in Louisiana. Balch said he would contact the representative for Pipeliners in that region and request him as a matter of courtesy to clear the prejob for Lipsey. This was done and the Louisiana prejob conference was held on August 21. Balch testified that he conditioned his assistance in arranging the prejob conference for Lipsey on the latter' s promise to sign the agreement with the Pipeliners. However, the record clearly reveals that Lipsey deferred signing the agreement until his attorney had approved it.' The parties had a third meeting on September 12. In attendance were Lipsey's attorney and representatives of two other Unions normally engaged in pipeline construction, the General Laborers and the Operating Engineers. Lipsey, through his counsel, stated that the agreements of the other Unions, the Laborers and Operating Engineers, were acceptable and would be signed and returned, but that he wanted more time to consider the Pipeliners' agreement . Balch and Dailey both testified, however, that it was their understanding that Lipsey's lawyer agreed to sign the contract. A week later Balch received a phone call from Lipsey's attorney who asserted that his client could not sign the Pipeliner' s agreement because it would bind Lipsey, Inc. as well as Moon Pipeline. There were other features of the contract which Lipsey could not accept, but the parent company signatory demand was the paramount objection. Meanwhile the Carpenters notified the Employer that it wished to represent the employees in question. On September 24, the Carpenters demanded recognition and on the following day the 'Briefly, in the pipelimng industry it appears that a prejob conference is merely a gathering of the contractor and the Unions, particularly, the Laborers, Operating Engineers, and the Pipeliners, that normally represent employees working on such projects. Once agreement for the job is reached with the Unions, the employer commences the project. In the instant job, which gave rise to this work dispute the Employer signed agreements with the Laborers and Operating Engineers only. However, on the Louisiana River crossing project the Employer signed agreements with representatives of all three Unions. Employer, satisfied that the Union did represent a majority, granted recognition. A contract was signed that same day by the Carpenters' representative, E. R. Rainwater, and Moon Pipeline. The Carpenters claimed representation of the welders, welders' helpers, spacers, and stabbers. Work commenced on the Humble project on September 30, and the next day the Pipeliners established a picket line on Moon Pipeline's Humble job, complaining of "Non-union labor - substandard wages-Local 798." Picketing occurred at the main gate to a tank farm of a petroleum company which had granted a right-of-way to the Employer. Within a week the Carpenters notified the Respondent that it no longer claimed the work in question. Thereafter, pursuant to a 10(1) injunction proceeding, the Pipeliners were enjoined from further action in support of their demand that the work in the four classifications mentioned above and assigned to the Employer's welders, helpers, spacers, and stabbers be assigned to it. B. The Work in Dispute The Humble project involves the laying of 8.8 miles of 20" O.D. gas pipeline from a tank farm at Lovell Lake, Jefferson County, Texas to the duPont de Nemours facility in Beaumont, Texas. At the time of the hearing most of the work had been completed. With the one exception of spacing, the work calls for relatively skilled labor. Specifically, there are three basic pipelining functions: (1) the "stabbing" or placement of a length of pipe in the ditch, (2) the "spacing" or alignment of the two joints to be welded, and (3) the actual connection itself performed by a welder with the assistance of a helper. All these jobs are essential to the construction of pipeline as a conduit of high pressure combustibles and these classifications and the duties described thereby would exist whether or not the employees so engaged were union-represented. C. The Contentions of the Parties The Employer in assigning the pipefitting work to welders, welders' helpers, spacers, and stabbers represented by the Carpenters, relies on its bargaining agreement with the Carpenters executed on September 25 and, in the alternative, on the assertion that the employees assigned the work claim it themselves. The Employer argues that for some time it has had many employees who have not been represented by the Pipeliners. In addition, the Employer asserts that there is a sufficiently large pool of unrepresented welders, welders' helpers, spacers, and stabbers in the area where it has laid pipe and that it is from this reserve of efficient workmen that the Employer chooses to select its employees. The record shows that there are other 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contractors in the area who likewise operate without union-represented employees. According to the Employer, to protect its longtime employees who wished not he represented by the Pipeliners, the Employer refused to accept the National Pipe Line Agreement which by its hiring hall terms would entitle the Pipeliners to place up to one-half of its members in the four categories listed above. Further, this agreement and the hiring hall provision contained therein would apply to employees of the parent company, Lipsey, Inc. Of some significance in this regard is the absence of a similar hiring hall clause in the Carpenters' agreement. To recapitulate, the Employer contends that the Carpenters are still bound by their agreement, but if it is found that the Carpenters indeed disclaimed representation, the employees on the job claim the work for themselves. The Pipeliners makes several contentions, but primary among these is the alleged oral contract it consummated with the Employer before the latter formerly executed its agreement with the Carpenters. It is also argued by the Pipeliners that the Carpenters' agreement was brought about by collusion and that since then a higher authority within the Carpenters has dislcaimed representation of the Employer' s spacers, stabbers, welders, and welders' helpers. Furthermore, the Respondent claims that it has historically represented employees in the above classifications; at present it represents the overwhelming majority of such employees while the Carpenters rarely represents such employees in these job categories. In terms of apprenticeship programs, the Pipeliners refers to its welding school, but does not allege that the workers now performing the work are unskilled or in any way unsuited to handle the work assigned to them. D. Applicability of the Statute The charge, which was duly investigated by the Regional Director, alleges a violation of Section 8(b)(4)(D) of the Act. The Regional Director found that there was reasonable cause to believe that a violation had been committed and directed that a hearing be held in accordance with Section 10(k) of the Act. On the basis of the entire record, including the Pipeliners' picketing because of the assignment of the disputed work, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination. E. The 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 of various relevant factors. 'N L R B. v. Radio Television Broadcast Engineers Union Local 1212, International Brotherhood of Electrical Workers ( Columbia Broadcasting System). 364 U.S 573, International Association of Machinists, Lodge Certain of the usual factors considered by the Board in these cases, such as Board certifications, skills, area and industry practice, arbitration or jurisdictional awards, and provisions of collective-bargaining agreements and International Constitutions, in our opinion, provide little basis for determining the instant dispute. Rather, initial determination of the merits of this dispute turns on the disposition of two threshold issues: namely, (1) whether the Carpenters disclaimed representation and, if so, whether the Board, nevertheless, retains jurisdiction pursuant to Section 10(k) and (2) whether the Pipeliners reached an agreement with the Employer to represent its employees. The record clearly indicates that the work was originally assigned to welders, helpers, stabbers, and spacers claiming to be represented by the Carpenters which had negotiated a bargaining agreement with the Employer. It is equally clear that the Carpenters attempted to disclaim representation, but not the contract itself, whereupon the employees in question claimed the work themselves and not through the Carpenters. Therefore, we recognize that the real dispute is between these employees and the Respondent. During the course of the hearing both the Employer and the Respondent moved to quash the notice of hearing . The parties reasoned that for the Board to exercise its jurisdiction under Section 10(k) there must be competing claims of two unions. While this is certainly the usual situation it is too restrictive an interpretation of the Section 8(b)(4)(D) and does not obtain where, as here, the individual employees to whom the jobs were assigned claim the work. That is, the polarity contemplated in Section 8(b)(4)(D) is preserved, and the injury Congress sought to prevent is present, whether two unions or a union and a group of employees stake competing claims to the disputed work. Efforts by the Pipeliners to show that the Employer had agreed to its contract are, in our opinion, unpersuasive. Although there is evidence that the Pipeliners thought it had an agreement in the offing and even helped obtain a prejob conference clearance on another project for the Employer as a show of good will and that this beneficence assuredly heightened the Respondent's rising expectations for an agreement, nevertheless, on balance, we are unable to ascribe significant weight to these considerations because the record indicates that throughout its negotiations with the Pipeliners the Employer adamantly refused to enter into any agreement which would also bind Lipsey, Inc. and thus present the imminent possibility of No 1743, AFL-CIO (J A. Jones Construction Company). 135 NLRB 1402, 1411. 'Although a jurisdictional dispute does not exist as between two "labor organizations," there is nonetheless a jurisdictional dispute within the meaning of the Act, as amended. See N.L R B v. Local 1291, International Longshoremen 's Association , 368 F 2d 107 (C.A 3), cert denied 386 U.S. 1033 PIPELINERS LOCAL 798 875 loss of jobs to its employees who chose not to become members of the Pipeliners . The record reveals that the Pipeliners' representative, Charles Balch, was not authorized and therefore unwilling to alter certain terms of the National Pipe Line Agreement and it was precisely these two conditions, the hiring hall and parent company inclusion clauses, which the Employer refused to accept. Even though the parties might well have been in substantial accord on the other terms of the contract, it was over these two subjects that the stalemate was created . Accordingly , we are unable to rind, on the basis of the record before us, a binding agreement between the Employer and the Respondent. As noted above, some factors the Board normally considers are not present in this case. However, other factors do appear on which we may rely for making an assignment of the work in dispute. Thus, with regard to relative skills the record indicates that the employees performing the disputed work are qualified skilled or semiskilled workers . Indeed, the most skilled of these are the welders, and testing the integrity of their work is of such importance to the owner of the pipeline that on each project he, and not the union, the pipeline contractor, or any one else , is the ultimate arbiter of the welders' skill. The welders currently assigned to this project have met these qualifications . Accordingly, it appears that the employees currently performing the work in dispute are fully qualified and are performing the work to the satisfaction of the Employer and of Humble . In addition , in terms of company, area, and industry practice there is evidence that Moon Pipeline, Lipsey, Inc., and several other pipeline contractors in the area , at least with respect to the type of work in dispute , normally operate with employees who are not represented by the Respondent. While it is true that the majority of welders in the area and, indeed, in the industry as a whole are represented by the Pipeliners or other locals of its International, nevertheless there is a sufficient ready reserve of nonunion welders, helpers, stabbers, and spacers available to the pipeline contractors who wish to operate without represented employees. On the basis of the record before us, we are constrained to conclude that the work in dispute was properly assigned to the employees now claiming the work for themselves. However, because of the unusual fact situation of this case, and in the absence of evidence supporting a broader work assignment award, we limit our determination and award to the particular construction project involved in this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings , and the entire record in this case, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees employed by Moon Pipeline Contractors, Inc., and claiming the work in dispute are entitled to perform the duties of welders, welders' helpers, stabbers, and spacers in the construction of 8.8 miles of 20" O.D. gas pipeline for Humble Oil & Refining Company. 2. Pipeliners Local No. 798 of the 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) of the Act to force or require Moon Pipeline Contractors, Inc., to assign the above-described work to its members. 3. Within 10 days from the date of this Decision and Determination of Dispute , Pipeliners Local No. 798 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry shall notify the Regional Director for Region 23 , in writing, whether or not it will refrain from forcing or requiring Moon Pipeline Contractors, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to its members rather than to welders, welders' helpers, spacers, and stabbers employed by Moon Pipleine Contractors, Inc.