Pipe Fitters Local 533 (Missouri Public Service Co.)

PIPE FITTERS ASSOC. LOCAL NO. 533 Pipe Fitters Association Local No. 533 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and Missouri Pubic Service Company and Power Generation Service Division-Westinghouse Electric Corporation and Carpenters District Council of Kansas City and Vicinity and Millwrights Local 1529, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO.1 Case 17-CD-226 January 20, 1978 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Missouri Public Service Compa- ny, herein called MPSC, alleging that Pipe Fitters Association Local No. 533 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called Pipe Fitters, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Power Generation Service Division- Westinghouse Electric Corporation, herein called Westinghouse or the Employer, to assign certain work to its members rather than to employees represented by Carpenters District Council of Kan- sas City and Vicinity and Millwrights Local 1529, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO,2 herein called Millwrights. Pursuant to notice, a hearing was held before Hearing Officer Leonard W. Clark, Jr., on June 30, 1977. 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. Thereafter, the Pipe Fitters and the Employer filed briefs. 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 Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: t The name of the Union appears as amended at the heanng. I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer, Power Generation Service Division- Westinghouse Electric Corporation, is a corporation engaged in the installation, repair, and maintenance of electrical power generating equipment from its place of business located at Broomhall, Pennsylva- nia, and that it annually purchases goods and/or services directly from sources located outside the State of Pennsylvania valued in excess of $50,000. 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 herein. The parties also stipulated and we find that the Charging Party, Missouri Public Service Company, is a corporation engaged in the generation, transmis- sion, and distribution of electricity from its place of business located near Buckner, Missouri, and that its gross annual revenue is equal to or in excess of $250,000. II. The Labor Organizations Involved The parties stipulated, and we find, that the Pipe Fitters and Millwrights are labor organizations with- in the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute, as described in the notice of hearing, consists of pipe welding steam chests, throttle valves, general piping around turbines, cross- over pipes, and flanges, and related work for the turbine generator inspection at the Missouri Public Service Company's Sibley Electric Power Generation Plant located near Buckner, Missouri. B. Background and Facts of the Dispute The work in dispute concerns only the work at MPSC's Sibley plant, unit number 3, located in Jackson County near Buckner, Missouri. Although the territorial jurisdiction of the Millwrights and the Pipe Fitters is not coextensive, Jackson County falls within the jurisdiction of both labor organizations. The parties stipulated that Westinghouse's pres- ence at Sibley is the result of a contract dated March 1, 1977, between itself and MPSC to perform the work herein in dispute. The parties further stipulated that since December 9, 1971, the United Brother- hood has had successive collective-bargaining agree- ments with Westinghouse covering "all employees 2 The United Brotherhood of Carpenters and Joiners of America, AFL- CIO. is herein called "United Brotherhood." 234 NLRB No. 75 381 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in periodic mechanical maintenance (in- spection and repair) work on turbines, generators, and other associated mechanical equipment as desig- nated by the Employer." Pursuant to this agreement, it has been Westinghouse's practice, whenever it acquires a maintenance contract with a utility, to contact the United Brotherhood which, in turn, designates the particular local union or district council that will have jurisdiction to supply Westing- house with personnel to perform the maintenance job. For the Sibley project the United Brotherhood designated the Carpenters District Council of Kansas City and Vicinity which, in turn, designated Mill- wrights Local 1529 to provide the personnel for the job. Pursuant to the agreement, employees represented by Millwrights Local 1529 commenced performance of the maintenance work at Sibley on approximately March 7, 1977, and were scheduled to complete the work on June 30, 1977. 3 The maintenance work at the Sibley generating plant basically involves open- ing the turbines and generator equipment, inspecting various points in the internal portions of the equip- ment, cleaning the equipment, making any needed repairs, and reassembling the equipment. The work here in dispute appears to represent only about 8 or 9 percent of the total maintenance work which mill- wrights perform. The parties stipulated that the events leading up to the instant dispute are accurately described in the affidavits of William Bagley, lead engineer for Westinghouse, and Jackson E. Barry, MPSC's pro- duction manager, neither of whom was present at the hearing. 4 In his affidavit Bagley states that on May 10, 1977, Harold Sheeley, a business representative for the Pipe Fitters, came to him at the Sibley plant, introduced himself, and asked why Westinghouse was not hiring pipefitters to do certain parts of the maintenance work which he referred to as pipefitters work. Bagley told him that Westinghouse was work- ing under a maintenance agreement with the United Brotherhood. Sheeley replied that the pipefitters would like to have the work and referred to having put a "banner" on some previous similar local project. Jackson "Jake" E. Barry testified that on May 12, 1977, beginning about 7:15 a.m., members of Pipe Fitters Local 533 began picketing the Sibley power plant with signs reading, "Westinghouse Breach of Contract Pipe Fitters Local 533," and "Westinghouse Unfair to Pipe Fitters Local 533." About 2 p.m., Barry telephoned Sheeley to ask why the pipefitters were picketing the entrance of the plant. Sheeley 3 It is not clear from the record whether or not the job was actually completed on June 30, 1977, which also was the date of the hearing herein. 4 The parties agreed to accept Barry's and Bagley's testimony by replied that there was a jurisdictional dispute be- tween the Pipe Fitters and the Millwrights because the latter was doing pipefitters work. Barry explained that the picketing was disrupting the power plant's scheduled round-the-clock operation. Thus, he stated that on May 12 only four of the plant's employees crossed the picket line and on May 13, while picketing continued from about 7:15 to 11:30 a.m., only five of the plant's employees crossed the picket line by 8 a.m., although more may have crossed later in the day. Except for Westinghouse's operations at the plant, all maintenance and service work at Sibley unit number 3 was stopped by the picketing. On May 13, 1977, MPSC's attorney filed the instant charge alleging that the Pipe Fitters had violated Section 8(b)(4)(D) of the Act by picketing the jobsite for the sole purpose of forcing Westing- house to reassign the disputed work from employees represented by the Millwrights to employees repre- sented by it. C. Contentions of the Parties The Employer contends that its assignment of the disputed work to employees represented by Mill- wrights is consistent with its current collective-bar- gaining agreement with United Brotherhood, which does not require that the covered work be assigned along traditional craft lines, but gives all such work to employees represented by Millwrights. The Em- ployer also asserts that the industry and area practice is to assign all maintenance work on generators and turbines to those employees. Westinghouse also takes the position that it is more economical and efficient in terms of time and money for the disputed work to be assigned to employees represented by Millwrights who possess all the requisite skills. Finally, as discussed below, Westinghouse contends that it does not have a current contract with the Pipe Fitters which would require it to assign the disputed work to employees represented by that labor organization. The Charging Party, for the most part, deferred to the Employer in the presentation of evidence in this matter and appears to support the Employer's contention that employees represented by Mill- wrights were properly assigned the disputed work. The Millwrights asserts that, pursuant to the contractual relationship between the United Brother- hood and Westinghouse, the work in question is properly within its jurisdiction. It also points out that area and industry practice reflects that employees represented by Millwrights are exclusively assigned maintenance and repair work on turbines and gener- affidavits because on the date of the hearing neither was available to testify directly. The parties stipulated to the truth of the testimony in their affidavits. 382 PIPE FIlTERS ASSOC. LOCAL NO. 533 ators, although pipefitters are assigned some work in the installation and construction of such units, as well as the performance of warranty work. The Pipe Fitters, on the other hand, contends that it has a current labor agreement with Westinghouse which covers the disputed work. Pipe Fitters argues that Westinghouse improperly entered into its na- tional agreement with the United Brotherhood cover- ing the work in question because, at that time, it already had a contract with Pipe Fitters which covered the work in dispute. Furthermore, the Pipe Fitters contends that the Board is without authority to determine the merits of this dispute because its contract with Westinghouse provides a method for the voluntary adjustment of the dispute "in accor- dance with the procedure established by the National Joint Board or any successor agency of the Building Trades Department." To support its contract claims, Pipe Fitters submit- ted two documents, which the Hearing Officer received into evidence for whatever value the Board may place upon them. Pipe Fitters Exhibit 1, hereinafter referred to as Exhibit 1, purports to be an "Agreement and Contract" between the Mechanical Contractors Association of Kansas City (hereinafter called Association) and the Pipe Fitters. Although Westinghouse is not a member of the foregoing Association, Pipe Fitters asserts that the agreement bears the signature of the Westinghouse representa- tive, W. D. Hicks. Article XVII, section 1, of the agreement states: "This Agreement shall become effective on the Ist day of June, 1967, and shall remain in effect until the Ist day of June, 1969, and shall continue in effect from year to year thereafter unless a written notice of intent to terminate or modify is given by one party to the other 120 days prior to the terminal date of this Agreement." The Pipe Fitters asserts that the con- tract is still valid because neither Westinghouse nor Pipe Fitters ever gave notice of intent to terminate or modify the agreement. Pipe Fitters Exhibit 2, hereinafter referred to as Exhibit 2, purports to be a "Labor Contract" between the Pipe Fitters and Westinghouse by which Westinghouse assertedly agreed to abide by the terms and conditions of a contract, described therein as "Exhibit A," previously entered into between the Pipe Fitters and the Association. The referred to "Exhibit A," however, was not attached to this "Labor Agreement" and is therefore not in evidence. Pipe Fitters Exhibit 2 also states: "This agreement shall remain in effect until June 1, 1967, and shall continue in effect from year to year thereafter unless a written notice of intent to terminate or modify is given by either party sixty (60) days prior to the terminal date of this Agreement." Pipe Fitters asserts that this contract is still valid because neither party ever gave notice to the other of an intent to terminate or modify. On the merits of the dispute, Pipe Fitters contends that Westinghouse departed from its own past practice by not assigning the work to employees represented by it pursuant to the above contracts. It also argues that Westinghouse's assignment of the work here is contrary to the area and industry practice, and that employees represented by Pipe Fitters possess all necessary skills to perform the work. Finally, the Pipe Fitters contends that West- inghouse's attempt to differentiate between new construction and major overhaul and reconstruction of generating systems is a distinction without a difference. At the hearing, Westinghouse objected to the receipt of Exhibits I and 2 into evidence because, in substance, Exhibit I was not properly authenticated, Exhibit 2 was incomplete, and both contracts had long expired. With respect to Exhibit 1, which is purportedly signed by Westinghouse Representative W. D. Hicks, Pipe Fitters Business Representative Robert Lanning testified on direct examination that Hicks signed the document in his presence. However, on voir dire examination, Lanning conceded that he did not personally observe Hicks sign the document. No other evidence was offered that Hicks signed the document. Nor was any testimony adduced as to the authenticity of Hicks' purported signature. Accord- ingly, we are unable to find conclusively that Westinghouse had subscribed to the terms and conditions of the contract (Exh. 1) executed between the Association and the Pipe Fitters. However, even if Hicks had signed the foregoing contract on behalf of Westinghouse, it is clear from the record that the agreement is no longer in effect as it has been superseded by subsequent agreements between the Association and the Pipe Fitters as discussed below. Nor can we rely on Exhibit 2 as showing that Westinghouse has a current contract with Pipe Fitters. For, in Exhibit 2, Westinghouse purportedly agreed to the terms contained in "Exhibit A" which was not attached thereto. Hence, because Pipe Fitters Exhibit 2 is incomplete with respect to all substantive terms, we are unable to rely on it as establishing Westinghouse's commitments to Pipe Fitters. Moreover, as with Exhibit 1, the record shows that the document identified as Exhibit A has been superseded by more recent agreements between Pipe Fitters and the Association. The record shows that since 1969 or 1970 Pipe Fitters and the Association have negotiated and executed at least two or three successor labor agreements to Pipe Fitters Exhibit 1. Indeed, Exhibit I appears to be a successor agreement to that 383 DECISIONS OF NATIONAL LABOR RELATIONS BOARD identified as Exhibit A. Furthermore, Lanning testi- fied that the current wage rates and employment conditions are not those provided in Exhibit 1, but are those contained in its current successor contract. Accordingly, it appears that Exhibit I and the contract referred to in Exhibit 2 are no longer in effect, having been superseded by later agreements between Pipe Fitters and the Association.5 Based on all of the foregoing, we find insufficient evidence to establish that Westinghouse had a current agreement with Pipe Fitters covering the work in dispute. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute, pursuant to Section 10(k) of the Act, it must be satisfied that: (I) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. As to (1), above, it is clear from the record and, indeed, the parties stipulated, that Pipe Fitters picketed the jobsite on May 12 and 13, 1977, because Westinghouse refused to assign the work in dispute to employees represented by it. On the basis of the foregoing, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. As to (2), above, Section 10(k) precludes the Board from determining a dispute where the parties submit evidence of an agreed-upon method for the voluntary adjustment of jurisdictional disputes. The Employer's contract with United Brotherhood does not contain any provision for the voluntary adjustment of such disputes. And, since we have already determined, supra, that Pipe Fitters does not have a current contract with Westinghouse, we find that there is no agreed-upon method for the voluntary adjustment of the jurisdictional dispute which is binding on all parties. Accordingly, we find that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. 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 factors.6 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors in- volved in a particular case.7 5 International Union of Operating Engineers, Local Union No. 12, AFL- CIO (West Coast Masonry Contractors, Inc.), 120 NLRB 53 (1958). 6 N. L. R.B. v. Radio and Television Broadcast Engineers Union, Local 1212. International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U.S. 573 (1961). The following factors are relevant in making the determination of the dispute before us: 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board as the collective- bargaining representative for a unit of the Employ- er's employees performing the work in dispute. Since 1971, however, Westinghouse has had a voluntary recognition agreement with the United Brotherhood designating that labor organization as the sole and exclusive bargaining agent for all employees engaged in periodic mechanical maintenance (inspection and repair) work performed on turbines, generators, and other associated mechanical equipment as designated by the Employer. The Pipe Fitters, as found above, does not have a current contract with Westinghouse. Since the Employer's agreement with the United Brotherhood covers all the work in dispute and no current contract exists with the Pipe Fitters, we find that this factor favors awarding the work to employ- ees represented by the Millwrights. 2. Employer, industry, and area practice Westinghouse has, since 1971, performed inspec- tion, maintenance, and repair work on turbines, generators, and related equipment throughout the United States pursuant to its agreement with the United Brotherhood. The Employer asserts that the industry and area practice reflects that the assign- ment of work on generators and turbines to pipefit- ters is limited to new construction, installation, and the servicing of warranties. The work here in dispute, however, involves maintenance (inspection and re- pair) at scheduled outages, as distinguished from construction, installation, warranty, or emergency work which is unscheduled. The Employer submitted into evidence a list of some 75 other employers located throughout the United States who perform repair, renovation, and overhaul work on turbines, compressors, and other machinery and equipment used in connection with, or related to, generating, transmission, or control of power and who use millwrights supplied pursuant to the United Brotherhood national agreement. Arthur Gladfelter, Westinghouse manager of labor relations, testified that Westinghouse has performed numerous maintenance operations in the Kansas City area for Missouri Public Service Company, Kansas Power and Light, St. Joe Light and Power, I International Association of Machinist, Lodge Na 1743, AFL-CIO (J. A. Jones Construction Comprany), 135 NLRB 1402 (1962). 384 PIPE FITTERS ASSOC. LOCAL NO. 533 and Kansas Gas and Electric Company. On each of the jobs, Westinghouse used employees represented by Millwrights pursuant to its national agreement with United Brotherhood. William Ruby, Millwright business representative for the Carpenters District Council, Kansas City and Vicinity, provided evidence with respect to the practice of two other employers (Leroy L. Waite and Son, and Interstate Heating and Plumbing) who have employed millwrights from Local 1529 under turbine maintenance agreements with the United Brother- hood. Gary Smith and Steve Boyle, members of Mill- wrights for 15 and 30 years, respectively, testified that they have performed maintenance on turbine generators for many years for various employers. Each specifically testified that he has never seen an employee represented by the Pipe Fitters performing the type of maintenance work here in dispute and that only employees represented by Millwrights work on such projects. Pipe Fitters Business Representative Robert Lan- ning, on the other hand, testified that in 1969 or 1970, pursuant to the Pipe Fitters contract with Westinghouse, employees represented by that Union performed maintenance work similar to that here in dispute, for the Kansas Board of Public Utilities in Kansas City, Kansas; for Kansas City Power and Light Company at its Hawthorne plant; and at MPSC's Sibley plant. Lanning also testified that employees represented by Pipe Fitters currently perform repair, maintenance, and inspection at various powerhouses, refineries, and buildings. Lan- ning also stated that it is the national and industry practice to assign all work related to piping to employees represented by Pipe Fitters while the work of dismantling the turbine generators, overhauling the components, etc., is assigned to Millwrights- represented employees. Although prior to 1971, members of the Pipe Fitters may well have performed the disputed work, the record is clear that since 1971 the Employer's consistent practice has been to assign all such work to the employees represented by Millwrights. Ac- cordingly, the factor favors an award to employees represented by Millwrights. The testimony adduced from the Pipe Fitters witnesses as to area and industry practice was phrased in general terms, while witnesses for the Millwrights and Westinghouse testified more precise- ly. Therefore, the evidence with respect to such practices, while somewhat conflicting and not deter- minative, tends also to favor assignment of the disputed work to employees represented by Mill- wrights. 3. Relative skills Gladfelter testified that employees represented by Millwrights possess all the necessary skills required to perform all aspects of the work in dispute, and that the Employer is satisfied with their work. In regard to training, the Millwrights has a 4-year apprenticeship and training program designed to adequately prepare its members to perform all phases of maintenance work, including the disputed work. Furthermore, Westinghouse asserts that since em- ployees represented by Millwrights have regularly performed similar types of maintenance work in the past, they are familiar with the unique problems associated with this type of work. Lanning, on the other hand, testified that the Pipe Fitters has a 5-year apprenticeship training program which trains and develop its members in all skills needed to perform the disputed work. Additionally, Lanning argued that since the employees represented by the Pipe Fitters have performed the disputed work for numerous employers, not only during the initial construction but in performing maintenance func- tions, they are also familiar with the work. Based on this evidence, it appears that employees represented by both the Pipe Fitters and Millwrights possess the requisite skills to perform the work in dispute. Accordingly, the factor of relative skills favors neither group. 4. Economy and efficiency of operations Gladfelter testified that the use of employees represented by Millwrights as the only craft workers to perform all of the maintenance work, including the disputed work, is economical to Westinghouse because these employees possess all necessary skills to complete the task in a continuous flow operation, without the disruptions attendant in a piecemeal assignment of the work to employees of several crafts. He stated that it is necessary to keep the flow of activities going because the work is performed in a limited time period, at scheduled outage periods, and only when a turbine generator is shut down. Hence, if the maintenance work were not complete on time, the utility company would be forced to buy power for its customers from other sources at an increased cost. Moreover, on the basis of figures prepared over the years, Gladfelter testified that, if strict craft line rules were applied to the maintenance work at the Sibley project, the work performed by the pipefitters would be at most only 8 or 9 percent of the total work on the project. To assign this relatively small percentage of work to pipefitters would adversely affect the efficiency of its operations. For example, disruptions would occur in the efficient flow of the work if employees represented by Millwrights were 385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD required to wait to perform the bulk of the work, while employees represented by Pipe Fitters per- formed their relatively small amount of work. Glad- felter stated that the interruptions in the workflow occur very infrequently because of the Employer's assignment of the work to a single craft group. Finally, Westinghouse contends that it must have the flexibility to respond effectively to the uncertain- ties which arise from maintenance work on turbine generators. The Pipe Fitters did not directly address itself to this issue. Rather, it contends that because of past experience its members can also perform the work economically and efficiently. In view of the foregoing considerations, we are convinced that the factors of economy and efficiency of operations weigh in favor of awarding the work to employees represented by the Millwrights. CONCLUSION Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that employees who are represented by the Millwrights are entitled to perform the work in dispute. We reach this conclusion relying on the facts that such assignment is consistent with the Employ- er's preference, past practice, current collective-bar- gaining agreement with the Millwrights, and the resultant efficiency and economy of its operations. In making this determination, we are awarding the work in question to employees who are represented by Millwrights, but not to that Union or its members. The 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 makes the following Determination of Dispute: 1. Employees of Power Generation Service Divi- sion-Westinghouse Electric Corporation, who are represented by Carpenters District Council of Kan- sas City and Vicinity, and Millwrights Local 1529, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the work of pipe welding steam chests, throttle valves, general piping around turbines, cross- over pipes, and flanges, and related work for the turbine generator inspection at the Missouri Public Service Company's Sibley Electric Power Generation Plant located near Buckner, Missouri. 2. Pipe Fitters Association Local No. 533 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting 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 Power Generation Service Divi- sion-Westinghouse Electric Corporation to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Pipe Fitters Associa- tion Local No. 533 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, shall notify the Regional Direc- tor for Region 17, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(bX4XD) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 386