Local 98, Pipefitters

LOCAL 98, PIPEFITTERS Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United Sates and Canada, ALF-CIO and Parks Installation Company and Local 7-389, Oil, Chemical and Atomic Workers International Union, AFL-CIO. Case 7-CD-201 June 30, 1969 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Parks Installation Company, herein called the Employer, alleging that Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, herein called the Plumbers, violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer Victor Schachter on August 15, 19, and 28, 1968. 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 issues. 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 Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Parks Installation Company is a Michigan corporation engaged in the business of installing tanks, air piping, hydraulic lifts, and service station equipment in gasoline service stations. During the last fiscal year, its gross revenue was approximately $500,000.2 During the same period of time, its gross revenue from sales and performance of services to Mobil Oil Corporation exceeded $50,000. The parties further stipulated that Borman Foods Company, Hertz, Inc., Mobil Oil Corporation and Smith & Andrews Construction Company are all employers within the meaning of Section 2 of the Act, and are persons engaged in commerce or in an industry affecting commerce within the meaning of Section 2(1), (6), and (7) of the Act. We find that 'Local 7-389, Oil, Chemical and Atomic Workers International Union, AFL-CIO, herein called OCAW, was permitted to intervene. 879 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. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that the Plumbers and OCAW are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of The Work in Dispute The Notice of Hearing specifies the work in dispute concerns the following work tasks: installation of fuel, lubricating oil, and pneumatic piping systems, including the setting and placement of associated storage tanks, piping systems, oil compressors, pneumatic lifts, and pumps, at gasoline service stations located within the geographic jurisdictional area of Local 98 of the Plumbers, which work has been assigned by the Employer to employees who are members of, or represented by, Local 7-389, OCAW, and who are not members of, or represented by, Local 98, of the Plumbers, but which latter organization claims jurisdiction over this work. The disputed work which gave rise to this specific proceeding is the installation of certain service station equipment, including tanks and piping, by a crew of the Employer's employees at the Borman Foods warehouse at Detroit, Michigan.' Borman Foods was constructing through contractors and subcontractors a warehouse and garage with a large truck fueling facility. The Employer worked under a contract with Borman Foods. Employees in other trades, including carpenters, operating engineers, electricians, and laborers, employed by various contractors and/or subcontractors, were working at the jobsite. There were also plumbers on the job, employed by McFarland-Dorman, who were performing certain plumbing work at the jobsite under a subcontract with Smith and Andrews Company. The work on this job involved a crew of 2 or 3 of the Employer's employees who were excavating for and installing the tanks, backfilling, piping the underground tanks, installing concrete slabs and bases in connection with the tank installation, and also installing pumps and depressors, pneumatic lifts, lubricating equipment, reels, high pressure lines, and air compressors. This work was to be performed in 2 phases. First, underground tanks and 'It appears that the Employer's principal customers , in addition to Mobil Oil Corporation, are Standard Oil, Texaco , Shell Oil, and Sun Oil. 'As noted elsewhere herein , similar work assignment disputes involving the Employer and the Plumbers also occurred at other jobsites of the Employer 177 NLRB No. 109 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD piping were installed. Then, after 30 to 60 days, the Employer's crew were to return and install the pedestals and other equipment and place all of the equipment into operating condition. In February 1968, 2 days after the Employer had installed the underground tanks at the Borman Foods site, an individual who identified himself as a plumber informed Harry Wheaton, Employer's foreman, that the Employer was doing the Plumbers' work and he, a plumber, was going to report it to the Union. Thereafter business agent Joe Sposito of the Plumbers told Wheaton that the Employer had no business there, was not affiliated with the Detroit Building Trades, and mentioned the possibility of a picket line. The Employer's foreman then called Mobil Oil Corporation, a representative of which ordered the Employer' s men to leave the premises. They accordingly left the jobsite at that time. Sometime later, the Employer's men returned to the Borman Foods jobsite and installed the piping. About April 17, 18, or 19, 1968, Whitson, business agent of the Plumbers, told the Employer's foreman that if the Employer's men were going to work there they would be the only ones there because Whitson would have a picket line and would close the job down. Then a representative of Borman Foods ordered the Employer's men to leave because he did not want the job shut down. The Employer's men left. The next morning, the Employer's men returned and went to work. Whitson told the OCAW business agent Johnston, according to Johnston, that the Employer had no business there; that the work was under the jurisdiction of Local 98 and the Detroit Building Trades; and Whitson threatened a picket line and to close the whole job down if Johnston did not remove his men. A supervisor for Mobil Oil Corporation, a job superintendent for Smith and Andrews Company, and a construction supervisor for Borman Foods all testified that the business agent of Local 98 stated, in effect, that if the plumbers were not put on the job being performed by the Employer's employees, who were members of OCAW, that the plumbers working elsewhere on the jobsite would be pulled off the job.' The plumbers left the job. Also employees in other trades including electricians, carpenters, and laborers, left the jobsite. The Employer's employees continued to work until an official of Borman Foods directed that the Mobil Oil representatives and the Employer' s men leave the premises and they complied with the request. Later that day, employees in other trades returned to work and the plumbers returned to the job the following day. The Employer' s men did not return until a court injunction was granted, at which time they completed the Borman Foods job. 'in addition to the dispute at the Borman Foods job it also appears that similar disputes involving the Employer and the Plumbers occurred elsewhere in the area Thus, the treasurer of Coster-Kitts Company, which B. Contentions of the Parties The Employer and OCAW contend that the Employer's employees are entitled to the disputed work. They take the position that the Board's determination in this proceeding and the scope of the assignment of the work should extend to the work of the Employer at all locations, past, present, and future, which are in the jurisdiction of OCAW as the work at the Borman Foods site had been completed. In any event the Employer and OCAW request that the scope of the work assignment extend to the jurisdiction of Local 98. The Plumbers appear to disclaim any right to the disputed work at the Borman Foods jobsite, but argue, in principal part, that if the Board finds reasonable cause to believe that there has been a violation of Section 8(b)(4)(D), that the work assignment award should be limited to the Borman Foods site and the Shell Oil site at Grand River and Halstead, Detroit, Michigan. (At the latter location the Employer was performing work for Jancett Construction Corporation.) In the alternative, the Plumbers contends that at best an appropriate award should encompass only its geographical jurisdiction.' C. 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 before making a determination of the dispute out of which the alleged unfair labor practices have arisen.' As shown above, it appears that the Plumbers claimed the work in dispute for its members, threatened to picket and to shut down the job at the Borman Foods site if the Employer did not accede to its demands, caused the plumbers and employees in other trades to stop working until the Employer's employees left the jobsite, and caused the employees of the Employer to stop work at this jobsite until a court injunction was issued. We find there is a reasonable cause to believe that subcontracts to the Employer, testified that in late April 1968, a business agent of the Plumbers threatened to refuse to let the plumbers work on any of Coster-Kitts jobs where the Employer was working (several locations but not Borman Foods site) For about 2 weeks thereafter, until a court injunction was issued, the plumbers employed by Trevarrow Plumbing did not work on Coster-Kitti jobs where the Employer was working. The president of Trevarrow Plumbing testified that about April 19 or 26, a representative of Local 98 suggested that Trevarrow Plumbing wait until further notice to work on any jobs where the Employer was working Trevarrow Plumbing agreed. This witness stated that he was caught up and did not lose any work because of the phone call The owner of Jancett Corporation, which also subcontracts to the Employer, testified that about the end of April, a business agent of Local 98 claimed the work being performed by the Employer and threatened him with a picket line At three other Jancett jobs, not including the Borman Foods site, where the Employer was working for Jancett, the employees of Williams Brothers, represented by the Plumbers, who were performing certain plumbing work on the job, did not thereafter work for 2 weeks 'According to a special exhibit submitted by the Plumbers, its geographical jurisdiction encompasses Wayne, Oakland and Macomb counties, and the City of Brighton, Michigan. 'International Union of Operating Engineers, Local 66, AFL-CIO LOCAL 98, PIPEFITTERS 881 violations of Section 8(b)(4)(D) have occurred, and that the dispute is properly before the Board for determination under Section 10(k) of the Act. D. 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 various relevant factors, and the Board has held that its determination in jurisdictional dispute cases is an act of judgment based upon common sense and experience in balancing such factors.' The Employer, in business 13 years, for the entire period of time has had a contractual relationship with the OCAW for its employees, and the Employer' s work has always been under the OCAW. Moreover, for reasons of efficiency and economy, the Employer desires to continue to use its employees, who are OCAW members, for such work. The Plumbers has never had any bargaining agreements with the Employer . Moreover, according to the testimony of a competitor of the Employer, OCAW members exclusively have performed this work in this area up until the last 2 or 3 years, and only recently has the Plumbers performed such work and apparently then only for some companies. The record also reveals that the Employer preferred to use OCAW members for reasons of economy and efficiency because they were more qualified, required less supervision , and were faster, and for safety reasons because OCAW members were more qualified to deal with flammable materials. The work here is dispute involves the installation of tanks, piping , and other equipment, carrying or using oil , gasoline or air. The president of the Employer testified , without contradiction , that oil or gasoline under pressure is explosive and working with the installation herein involved requires special techniques, especially in testing for leaks and other defects, and that experience in water plumbing is not sufficient for this type work. It also appears that the Employer' s work requires that the requirements of local safety codes be met, and the Employer has met such requirements with its own employees represented by OCAW. Accordingly, and particularly on the basis of the long bargaining history between the Employer and the OCAW covering the employees now engaged in the installation of service station tanks, piping, and other equipment, the skills of the Employer's employees in performing the work, and the Employer' s need and desire for a stable, trained (Frank P. Bodalato & Son), 135 NLRB 1392. 'International Association of Machinists. Lodge No. 1743, AFL-CIO V. A. Jones Construction Co), 135 NLRB 1402, 1410. work force to perform an efficient, economical, and safe operation, we shall determine the jurisdictional dispute by awarding the work in dispute to those employees represented by OCAW but not to that Union or its members. Since it appears from the record herein that similar disputes between the parties have arisen elsewhere within the jurisdiction of the Plumbers, and as there is a strong probability that similar disputes involving the Plumbers may occur in the future, we shall apply our work assignment award in this case not only to the Borman Foods jobsite at which the dispute arose but to all similar work being performed or to be performed by the Employer within the geographical jurisdiction of the Plumbers. 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 proceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees employed by Parks Installation Company, Detroit, Michigan, who are currently represented by Local 7-389, Oil, Chemical and Atomic Workers International Union, AFL-CIO, are entitled to perform the installation of fuel, lubricating oil, pneumatic piping systems, including the setting and placement of associated storage tanks, piping systems, air compressors, pneumatic lifts and pumps, at gasoline service stations located within the geographical jurisdiction of Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. 2. Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, is not, and has not been, entitled by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Parks Installation Company to award the above work to its members or employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, shall notify the Regional Director for Region 7, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to its members rather than to employees represented by OCAW in a manner inconsistent with the above determination.