Local Union No. 211, Plumbers

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 211 of the United Association of Emde Company purchased goods and materials in ex- Journeymen and Apprentices of the Plumbing and cess of $50,000 from points outside the State of Texas Pipefitting Industry of the United States and which were shipped directly from outside the State of Canada, AFL-CIO and Refrigeration Contractors, Texas to its various construction projects within the Inc. and International Association of Macinists & State of Texas. Aerospace Workers, AFL-CIO, Lodge No. 12. Case 23-CD-267 II. THE LABOR ORGANIZATION INVOLVED April 26, 1971 The parties stipulated, and we find, that Local 211 and International Association of Machinists & Aero- DECISION AND DETERMINATION OF space Workers, AFL-CIO, Lodge No. 12,' are labor DISPUTE organizations within the meaning of Section 2(5) of the BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Act. III. THE DISPUTE This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a change filed by Refrigeration Contractors, Inc.,' alleg- ing that Local Union No. 211 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO,' violated Section 8(b) (4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer Kenneth L. Tilley of the National Labor Relations Board on December 21 and 22, 1970. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing upon the issues. 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. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Briefs filed by the Employer and Local 211 have been duly considered. 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 reveals, that the Employer is a Texas corporation engaged in the business of installing and servicing commercial refrig- eration equipment. During the past 12 months the Em- ployer received in gross revenues approximately $150,- 000, of which $50,000 was derived from employers over which the Board would assert jurisdiction on a basis other than indirect inflow or outflow. The record reveals that The Emde Company is a Texas corporation engaged in the mechanical contract- ing business and that during the past 12 months The A. Background and Facts of the Dispute The dispute involves the installation of commercial refrigeration equipment at two restaurants, the El Fenix and the Pacesetter, and the adjoining Houston Oaks Hotel, located on the construction site of the Galleria Shopping Center in Houston, Texas, under separate contracts between the Employer and Fore- most-McKesson, Commercial Kitchens, and Western Service and Supply Company. According to the developer's specifications , all work on the Galleria project, including the hotel , was to be performed by employees "not objectionable" to the various trade unions on the construction site . The Em- ployer's employees are represented by the Machinists and have been since August 1970,' when the Employer and the Machinists entered into recognition and collec- tive-bargaining agreements. On Friday, October 2, the Employer's employees, including Machinists job steward, Paul Smith, were preparing to install refrigeration units in the unfinished Pacesetter Restaurant when one of Local 211's job stewards, Gerald Lee, employed by The Emde Com- pany' approached Smith and told him "that he had instructions for his men to walk off the job" if the Employer's employees proceeded with their work. Later that day Smith talked to the Pipefitters business agent, Homer Cross, and was informed that if the Ma- chinists went to work the Pipefitters members "would walk off the job." The Employer performed no more work that day in the expectation that differences be- tween the unions would be resolved over the weekend. When the Employer's employees returned to work the following Monday, October 5, Lee advised Smith that the Pipefitters members would walk out if the Machinists commenced work, and once the Employer's Herein called the Machinists. All dates herein refer to 1970. Herein the Employer. ' The Emde Company, a mechanical contractor on the Galleria premises, Herein called Local 211 or the Pipefitters . does not perform refrigeration installation work. 190 NLRB No. 16 LOCAL UNION NO. 211, PLUMBERS employees began to assemble the refrigeration equip- ment Emde's employees, joined by other members of Local 211, left their jobs. Similar strikes involving Lo- cal 211 members on the Galleria project occurred on October 6 and 7, and after the latter date the Em- ployer's employees did not appear again on the con- struction site. Thereafter, employees of another em- ployer, S & D Refrigeration, finished installing the refrigeration units in the El Fenix Restaurant and Houston Oaks Hotel.6 Within several days of the walkouts Western Supply and Service Company, owner of the hotel, and Com- mercial Kitchens, owner of the El Fenix, notified Re- frigeration Contractors that other unions on the Gall- eria jobsite considered the Machinists "objectionable" and that completion of the installation work would have to be performed by another contractor with em- ployees "acceptable" to the Pipefitters. S & D Refriger- ation, whose employees were members of either Local 211 or a sister local, was chosen. Because the Employer was still responsible for warranty work under its agree- ments with the owners, Smith was permitted on the premises to supervise the installation of the refrigera- tion units. B. The Work in Dispute The work in dispute involves the assignment of the installation of walk-in freezers and coolers at the El Fenix and Pacesetter Restaurants and the Houston Oaks Hotel, located on or near the Galleria Shopping Center in Houston, Texas. The work in dispute at the above-named facilities involves the same basic func- tions. At the jobsite the prefabricated walk-in freezer and cooler units are unloaded, erected, placed in their prepared spaces, and connected to prefabricated con- densing units by tubing which is sized on the premises. Electrical work, including some central wiring, the wir- ing of heaters, timeclocks and solenoids, is performed by electricians under the supervision of an employee familiar with wiring diagrams and the proper ranges of temperature and frost control. After the refrigeration units are assembled they are dehydrated, dryers are installed, systems are charged, and the refrigerant, freon, is added. Finally, the temperature controls and safety devices are checked. C. Contentions of the Parties During the hearing, the Pipefitters conceded that the evidence adduced by the Charging Party would provide the Board with reasonable cause to believe that its rep- resentatives violated Section 8(b)(4)(D), but neverthe- 6 However, the Employer's employees were permitted to service and repair the refrigeration equipment at the restaurants and the hotel after the units were installed. 91 less argued that the work in dispute should be assigned to its members because of, inter alia, alleged area prac- tice strongly favoring such an assignment. The Employer and the Machinists contend that the facts clearly establish a violation of Section 8(b)(4)(D), and that the relevant factors, including economy and efficiency of operation, company practice, and contrac- tual agreements, support the Employer's assignment. D. Applicability of the Statute Before the Board may proceed with a determination of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated. The facts supporting a finding that the Pipefitters induced employees of The Emde Company to engage in a strike because the Company's employees com- menced performing the disputed work are virtually un- controverted. We therefore find that such reasonable cause exists, and that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute As stated in the J. A. Jones case,' we shall, pursuant to the Supreme Court's C.B.S. decision,' determine in this case presented for resolution under Section 10(k) of the Act the appropriate assignment of the disputed work after taking into account the evidence supporting the claims of the parties and balancing all relevant factors. However, some of the factors are of little or no use in resolving the present dispute. Thus, it would appear that both the Pipefitters and the Machinists are capable of performing the work in dispute. There are no Board certifications. Although, the Pipefitters sought to stay this proceeding, suggesting that the In- ternational representatives of both labor organizations be called upon to resolve the dispute herein, both the Employer and the Machinists elected to proceed with the instant hearing. We therefore set forth below other factors which we find relevant in determining this dis- pute. 1. Bargaining agreements The Employer's bargaining agreement with the Ma- chinists, to whom the work has been assigned, may be reasonably interpreted as covering the work in dispute. On the other hand, the Pipefitters is not now, nor has it ever been, a party to a collective-bargaining agree- ment with the Employer. Therefore, the Employer's 7 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A Jones Construction Company), 135 NLRB 1402 6 N.L.R B. v Radio & Television Broadcast Engineers Union, et al. (Co- lumbia Broadcasting System), 364 U S. 573. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract is a factor supporting the assignment of the disputed work to the Machinists. 2. Company, area, and industry practice The Pipefitters contends that it has performed most of the commercial refrigeration installation work in the past and that practice prevails throughout the Houston area. However, the Employer argues that it is almost exclusively engaged in the business of installing com- mercial refrigeration units in the food service industry which because of technological change in refrigeration systems is an industry far removed from that to which the Pipefitters has reference . Moreover, the Employer asserts that the food service refrigeration industry is expanding and that with this growth there will be the accompanying installation , maintenance, and repair problems which require the services of highly special- ized firms such as the Employer . We find merit in this contention based not only on the Employer's projec- tions, but also on the fact that in the past 18 months the Employer has been almost exclusively engaged in the food service refrigeration business and has per- formed the work in dispute here on 70 jobs , most of which include restaurants and franchised fast food ser- vice establishments such as Dairy Queen , Arby's, etc. 3. Efficiency and economy of operation Over the past 18 months the Employer has found its employees, represented by the Machinists, to be effi- cient in performing the disputed work. Moreover, as the Employer is normally required to guarantee its in- stallation work for 1 year it argues that it would not be practical to engage its employees in servicing commer- cial refrigeration units unless these same employees were also familiar with the technical aspects of install- ing these units. By having one group of employees per- forming all installation, maintenance, and repair work, the Employer contends it will be able to minimize costly "call-backs" during the 1-year guarantee period. We find the above considerations to be important fac- tors favoring the Employer's assignment of the dis- puted installation work to the Machinists. Conclusions Upon the record as a whole, and after full considera- tion of all relevant factors involved, we believe that the employees of the Employer who are currently repre- sented by the Machinists are entitled to the work in dispute. We reach this conclusion relying upon the Employer's assignment of the work to its employees, the fact that the assignment is consistent with the Em- ployer's past practice, the fact that the bargaining agreement between the Employer and the Machinists appears to cover the work in dispute, the fact that the Employer's employees possess the requisite skills, and the fact that such an assignment will result in efficiency and economy of operation. Accordingly, we shall deter- mine the dispute before us by awarding the work in dispute to the Employer's employees represented by the Machinists, but not to the Union or its members.' DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoings findings and the entire record in this pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of Refrigeration Contractors, Inc., who are currently represented by International As- sociation of Machinists & Aerospace Workers, AFL- CIO, Lodge No. 12, are entitled to perform the dis- puted work of installing refrigeration equipment at the construction site of the Galleria Shopping Center in Houston, Texas. 2. Local Union No. 211 of the United Association of Journeymen and Apprentices of the Plumbing and Pi- pefitting Industry of the United States and Canada, AFL-CIO, is not entitled by means proscribed by Sec- tion 8(b)(4)(D) of the Act to force or require Refrigera- tion Contractors, Inc., to assign such work to workmen represented by Local Union No. 211 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local Union No. 211 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, shall notify the Re- gional Director for Region 23, in writing, whether it will refrain from forcing or requiring Refrigeration Contractors, Inc., by means proscribed by Section ' Both the Employer and the Machinists urge that the Board issue a broad order award covering all future contracts in the Houston, Texas, area other than the three contracts referred to above at the Galleria Shopping Center. We disagree. To support their position the Employer and the Machinists rely upon a conversation between two employees at another jobsite in which one of the two, a member of Local 211, allegedly "bragged" about the "shut down" at the Galleria project and the possibility of similar incidents on future sites. Neither employee worked on the Galleria construction site and the union member held no position of authority in Local 211. In addition, reliance is placed on statements of the Pipefitters business manager, Roberts, made at a meeting between the Employer and the Pipefitters shortly before the conduct of the hearing in which the parties attempted to resolve their differences . Roberts remarked that in his opinion the instant dispute had been "mishandled," that the Pipefitters was willing to "concede" certain work to the Employer but that in the future there might be problems with other crafts such as the insulators, carpenters, and electricians. When asked if trouble could be avoided were the Employer's employees members of Local 211 instead of the Machinists, Roberts replied that he was not sure as he was in no position to know what course other trades might take. We are unable to infer from these conversations a likelihood of the same or a similar dispute occurring in the future. Accordingly, the award is limited to the work in dispute at the Galleria project. LOCAL UNION NO. 211, PLUMBERS 93 8(b)(4)(D), to assign the work in dispute to employees and Canada, AFL-CIO, rather than to employees represented by Local Union No. 211 of the United represented by International Association of Machinists Association of Journeymen and Apprentices of the & Aerospace Workers , AFL-CIO , Lodge No. 12. Plumbing and Pipefitting Industry of the United States