Intl. Brotherhood of Boilermakers, Loc. 74

INTL. BROTHERHOOD OF BOILERMAKERS, LOC. 74 1015 International Brotherhood of Boilermakers, Iron Ship- builders, Welders and Helpers of America, AFL-CIO, Local Union No. 74 and Service Technology Corporation and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO/CLC, Local Union No. 211. Case 23-CD-282 August 21, 1972 DECISION AND DETERMINATION OF DISPUTE States, including an office located at building 1 of the Manned Spacecraft Center, Harris County, Texas; that the Employer is engaged in the business of supplying technical and maintenance services in connection with the exhibit, escort, and library services at the Manned Spacecraft Center; and that during the past year the Employer has received in the State of Texas goods valued in excess of $50,000 from points located outside the State of Texas. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Service Technology Corporation, herein called the Employer, alleging that Internation- al Brotherhood of Boilermakers, Iron, Shipbuilders, Welders and Helpers of America, AFL-CIO, Local Union No. 74, herein called Boilermakers, had violated Section 8(b)(4)(i) and (ii)(D) of the Act with an object of forcing or requiring the Employer to assign the work in dispute to members of Boilermak- ers rather than to employees of the Employer represented by United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO/CLC, Local Union No. 211, herein referred to as Pipefitters. Pursuant to notice, a hearing was held before Hearing Officer Dwain Erwin on May 4, 1972. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by the Employer, Boilermakers, and Pipefitters in support of their positions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds them free from prejudicial error. They are hereby affirmed. The Board has considered the entire record in this proceeding, including the briefs, and hereby makes the following findings: I. THE EMPLOYER INVOLVED The parties stipulated, and we find, that the Employer is a Delaware corporation with offices located in various cities throughout the United II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Boiler- makers and Pipefitters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background Facts Pursuant to a contract between the National Aeronautics and Space Administration (NASA) and the Employer executed approximately 3 years ago, the latter has supplied the former with technical and maintenance services at NASA's Manned Spacecraft Center, utilizing such crafts and trades as are necessary . Part of such services includes mainte- nance of the Center's heating and cooling system, which the Employer has performed with Pipefitters members . In or prior to early August 1971, a deterioration of the tubes in the refrigeration chillers resulted in NASA's subsequent decision to have the system completely overhauled by the Employer. This project was not included in the Employer 's normal maintenance funds and, in accordance with past practice in such cases, was specially funded by NASA. The Employer thereupon assigned this work to its employees represented by Pipefitters . Although this was the first time such a project had been undertaken at the Center, the work involved was identical to the maintenance performed on this equipment on a normal, scheduled, recurring basis. At the time of the dispute, the Employer , Pipefit- ters, and Boilermakers , as well as nine other International Unions, were parties to and bound by the General Presidents ' Project Maintenance Agree- ment By Contract covering "maintenance, repair and renovation work [at the Center] recognized by the unions of the AFL-CIO as being within the jurisdiction of said Union ." This agreement, howev- er, does not define the work jurisdiction of the unions involved, or specifically cover the disputed work. Boilermakers and Pipefitters , along with many other 198 NLRB No. 147 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD building and construction trade unions, also are bound by an agreement commonly known as the Green Book and entitled "Plan For Settling Jurisdic- tional Disputes Nationally and Locally," containing "Jurisdictional Agreements Entered Into Between Affiliated International Unions and [Operative] Decisions Rendered Affecting the Building Indus- try." In addition, each of the unions involved herein are parties to different agreements with various employer groups covering their respective jurisdic- tional areas and, in broad, general terms, noting the types of work performed by each of the disputing unions. B. The Work in Dispute The work in dispute encompassed by the instant charges and as further defined by the parties concerns the "rehabilitation of the heating and cooling system of the . . . (NASA) Manned Space- craft Center . . . including . . . pulling of the heads; pulling the tubing, tubing bundles and tube sheets for inspection, replacement and/or reassembly ; inspec- tion and reassembly of baffles, freon condensers, ... steam condensers . . . and all incidental repairs to same." There is no dispute concerning the shutting down of the heat exchangers and chillers or with work associated with freon evaporating compressors and steam turbines, which work Boilermakers specif- ically disclaimed at the hearing . The dispute herein arose when the Employer assigned the work involved to its employees represented by Pipefitters , rather than to members of Boilermakers. C. Contentions of the Parties 1. The Employer: The Employer contends that there is reasonable cause to believe that Boilermakers has violated Section 8(b)(4)(D) of the Act, and that the Employer's assignment of the disputed work to its employees represented by Pipefitters should be affirmed on the bases of the Employer's preference, area and company practice, experience, proficiency, and efficiency and economy of operations. Addition- ally the Employer argues, in substance, that an award of the disputed work to members represented by Boilermakers will result in unnecessary unem- ployment of Pipefitters members. 2. Pipefitters: Pipefitters, utilizing substantially the same arguments presented by the Employer regarding the assignment of the disputed work, agrees that its members employed by the Employer Art VI, "Work Assignments," of the General Presidents' Agreement, provides in pertinent part that "Any assignments made in the absence of a craft shall not be considered an original assignment or be considered a project practice to that trade " It further provides that in the event of a protest by a craft as to "what may be considered an improper assignment," the Employer shall arrange a meeting of the affected crafts in an attempt to are entitled to that work. In addition, it urges an award to its members on the basis of its bargaining agreement with the Mechanical Contractors Associa- tion. 3. Boilermakers: Boilermakers argues, basically, that the work in dispute should be awarded to its members on the bases of jurisdictional agreements between it and Pipefitters contained in the Green Book, International and local union settlements and awards involving the disputing Unions, the General Presidents' Project Maintenance Agreement, its collective-bargaining agreement with the "South Central Employers," area practice, and its appren- ticeship training program. Boilermakers further contends, in substance, that the work in issue is "capital" in nature as opposed to routine mainte- nance, and that, therefore, it is a "new" type of work concerning which there is no company or area practice. D. Applicability of the Statute Before the Board may proceed to a determination of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. The uncontested evidence shows that during conversa- tions with the Employer in mid-August and mid- September 1971, Boilermakers Business Agent Wen- delken claimed for that Union's members the chiller and condensation work involved in overhauling the Center's heating and cooling system which, together with the remainder of the work involved therein, the Employer earlier had assigned to its employees represented by Pipefitters. The Employer, who assigned the work to Pipefitters in the absence of Boilermakers, thereupon attempted to resolve the dispute at a September 31 conference which it called pursuant to the "Wage Assignments" provision of the General Presidents' Project Maintenance Agree- ment.' This attempt was unsuccessful, however, because Pipefitters business agent refused to attend the meeting, contending, in substance, that a meeting would be futile since there "was nothing he could compromise in the matter [because] he didn't intend to give up the work." Upon being appraised of the foregoing by the Employer, Wendleken stated, "Well, it's [Boilermakers] work . . . and I am going to do everything that is necessary to get this work." Subsequent to an October 6 conversation with the Employer when Wendelken again claimed the resolve the issue, that if such conference does not resolve the issue, the matter then shall be referred to the International Union of the aggrieved party for further processing, and that if the International Unions involved fail to reach a project decision , the matter may then be referred to the General Presidents' committee for "assistance in resolving said dispute." INTL. BROTHERHOOD OF BOILERMAKERS , LOC. 74 1017 disputed work, the Employer again invoked the wage assignments provision of the General Presidents' Agreement by telegraphing a request for assistance to the General Presidents' committee, which failed to reply. On October 15, Wendelken telephoned the Employer to ascertain the status of the work assignments. After learning that the Pipefitters members had begun performing the work, Wendelk- en stated that "if you don't assign the work to me by the 19th [of October], and if the Pipefitters don't relinquish this work by that time, we are going to picket the site." Several days later,- the Employer again telephoned the General Presidents' committee for assistance, and again there was no response. On November 11, after a further unsuccessful attempt to obtain the claimed work, Wendelken stated to the Employer that "if you don't give us the work we are going to picket the site," and that he now had "authority to do so from my International Union." At this point, Wendelken waived a document which he stated contained that authority. On the following day, the Employer filed the charges giving rise to this proceeding. As indicated herein, while article VI of the General Presidents' Agreement provides machinery calculat- ed to induce discussion of jurisdictional disputes with an ultimate goal of reaching a voluntary agreement upon a method for resolving such disputes, it does not provide for any method of voluntarily resolving such controversies if the parties to that agreement fail to reach accord, as happened herein. Nor does the record contain any other evidence indicating that the parties have reached an agreement upon methods for the voluntary adjustment of this dispute. Accord- ingly, we conclude, on the basis of the entire record, 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 us for determination under Section 10(k) of the Act. E. Merits of the Dispute As stated in the J. A. Jones case,2 we shall, pursuant to the Supreme Court's CBS decision,3 determine in each case presented for resolution under Section 10(k) of of the Act the appropriate assignment of the disputed work only after taking into account the evidence supporting the claims of the parties and balancing all relevant factors .4 2 International Association of Machinists, Lodge No 1743, AFL-CIO (J. A Jones Construction Company), 135 NLRB 1402 3 N LR B v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), 364 U.S 573 The record shows that although both labor organizations involved herein have been certified by the Board, neither certification covers the disputed work , that the apprenticeship training program of each labor organization teaches the skills involved in the disputed work , that the 1. Collective-bargaining agreements and International and local union settlements and awards Boilermakers contends, in substance, that the work in dispute is covered by jurisdictional agreements between Boilermakers and Pipefitters contained in the Green Book, and that rule 5 thereof 5 awards the disputed work to boilermakers. The purpose of the Green Book, ,however, is to set forth specific areas of agreement between the disputing unions covering specific work or types of work and the union-entitled to perform that work. While the Green Book does indeed assign rule 5 work to boilermakers, it also restricts the performance of that work to "Refinery Installations." Moreover, the Employer is not a party to, and, therefore, not bound by, the union agree- ments contained in the Green Book. Boilermakers further argues that work similar to that in dispute has been awarded to it by various International and local settlements and awards. Based thereon, Boilermakers contends that the Employer is bound by the General Presidents' Agreement, and that, by assigning the disputed work to pipefitters rather than boilermakers, the Employer breached the provisions of paragraph 2, article VI, of that agreement requiring the Employer to assign work on the basis of "decisions and agreements of record and agreements between [the] International Unions" [involved]. The record shows, however, that the various settlements and awards relied on by Boilermakers either are not controlling or are not relevant insofar as the work in dispute is concerned. Moreover, the above-cited provisions of the General Presidents' Agreement also state that "In the absence of decisions and agreements of record and agree- ments between International Unions, the [Employer] shall assign the work consistent with trade or area practice." As will be noted, infra, the disputed work was assigned in accordance with "trade or area practice." Finally, Boilermakers contends that its collective- bargaining agreement with "South Central Employ- ers" covers the work in issue. Similarly, Pipefitters claims the work on the basis of its bargaining agreement with the "Mechanical Contractors Associ- ation of Texas, Inc., et al." The Employer, however, is not a party to either of these agreements, neither of which specifically covers the disputed work. There- members of each labor organization possess the skills necessary to perform the disputed work; and that the members of each labor organization have performed the type of work in dispute in various areas throughout the country These factors, therefore, do not favor either Pipefitters or Boilermakers. 5 Rule 5 provides that "The installing or removing of cooler, condenser and heat exchange tube, or tubes of the shell and tube type equipment, by any mode or method, shall be the work of the Boiler Maker." 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore, none of the foregoing factors relied on by Boilermakers militate in favor of an award to its members. Nor does Pipefitters agreement with the Mechanical Contractors Association favor an award to its members. 2. The Employer's preference, past practice, and area and company practice While the work in dispute involves, for the first time, an overhaul rather than routine maintenance of the Center's heating and cooling system, the differ- ence in the type of work involved appears to be only in degree, and not in kind. The record shows in this regard that there is no aspect of any of the work involved in overhauling the system which Pipefitters members have not performed during the 10 years they have been continuously assigned to maintain, service, and repair the system. At best, the work assignment in issue constitutes a consolidation of the routine daily, weekly, or monthly work performed on the equipment by Pipefitters, and, therefore, is not a capital or new type of work, as claimed by Boiler- makers. Moreover, the Employer, like its predecessors at the Center, has used Pipefitters members only, and never Boilermakers, to perform all of the work in dispute. In addition, the work involves a complete overhaul of the air-conditioning equipment, and the record shows that Boilermakers does not have a single contract with an area employer engaged in the air-conditioning repair, service, or maintenance business. Further, the Employer is satisfied with the quality of work performed by its employees repre- sented by Pipefitters and favors an award of the work to them. In view of the foregoing factors, including the absence of any boilermakers on the Employer's payroll, it would appear that the Employer's assign- ment of the disputed work to its employees repre- sented by Pipefitters, even though made in the absence of Boilermakers, was not improper. It further appears that the Employer's preference and practice, past practice, and area practice favor an award of the work in dispute to employees represent- ed by Pipefitters. 3. Experience, proficiency, preclusion of unnecessary displacement of employees, efficiency, and economy of operations The record shows that approximately 30 of the 40 pipefitters presently employed by the Employer at the Center have worked there over 10 years, and that the 8 most experienced and proficient of those pipefitters assigned to perform the work in issue were transferred to the project from other pipefitting duties because they customarily had worked on, and were intimately familiar with, the equipment in- volved. It would appear, therefore, that an award of the disputed work to members of the Boilermakers would displace steady, reliable, and experienced employees capable of performing all of the work involved in overhauling the equipment with persons who seek to perform only part of that work, and thereby curtail the Employer's efficiency, economy, and flexibility of operations. CONCLUSION Having considered all pertinent factors herein, we conclude that employees represented by Pipefitters are entitled to perform the work in dispute. In making this determination, we are assigning the disputed work to employees of Service Technology Corporation, who are represented by United Associ- ation of Journeymen and Apprentices of the Plumb- ing and Pipefitting Industry of the United States and Canada, AFL-CIO/CLC, Local Union No. 211, but not to that Union or its members. Our present determination is limited to the particular controversy which gave rise to 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 proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: 1. Employees of Service Technology Corporation, who currently are represented by United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Cana- da, AFL-CIO/CLC, Local Union No. 211, are entitled to perform the work of rehabilitation of the heating and cooling system of the National Aeronau- tics Space Administration (NASA) Manned Space- craft Center (MSC) located in building 24 of the NASA-MSC site in Harris County , Texas, including pulling of the heads ; pulling the tubing, tubing bundles, and tube sheets for inspection , replacement, and/or reassembly ; inspection and reassembly of baffles, freon condensers, and steam condensers, and all incidental repairs to same. 2. International Brotherhood of Boilermakers, Iron Shipbuilders, Welders and Helpers of America, AFL-CIO, Local Union No. 74, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Service Technology Corporation to assign the disputed work to employees who are represented by that labor organization. 3. Within 10 days from the date of this Decision INTL. BROTHERHOOD OF BOILERMAKERS , LOC. 74 1019 and Determination of Dispute, International Broth- erhood of Boilermakers, Iron Shipbuilders, Welders and Helpers of America, AFL-CIO, Local Union No. 74, shall notify the Regional Director for Region 23, in writing, whether or not it will refrain from forcing or requiring Service Technology Corporation, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to individuals represented by International Brotherhood of Boiler- makers, Iron Shipbuilders, Welders and Helpers of America, AFL-CIO, Local Union No. 74, rather than to employees of Service Technology Corpora- tion represented by United Association of Journey- men and Apprentices of the Plumbing and Pipefit- ting Industry of the United States and Canada, AFL-CIO/CLC, Local Union No. 211.