Plumbers Local No. 447

PLUMBERS LOCAL NO. 447 45 Plumbers Local No. 447 and Petroleum Engineering, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Locals 980 and 78. Case 20-CD-452 commerce within the meaning of the Act and it will effectuate the policies of the Act to assertjurisdiction herein. August 29, 1975 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Petroleum Engineering, Inc., herein also called the Employer, on March 21, 1975, alleging that Plumbers Local No. 447, herein also re- ferred to as Local 447 or Plumbers, violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requiring Petroleum Engineering to assign the work in dispute to employees represented by Plumbers rather than to employees represented by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Locals 980 and 78, herein also re- ferred to as Teamsters or Locals 980 and 78. A hearing was held before Hearing Officer Eileen Hamamura on May 8 and 12, 1975. All parties ap- peared at the hearing and were afforded full opportu- nity to be heard, to examine and cross-examine wit- nesses, and to adduce evidence bearing on the issues. Thereafter, the Employer, Local 447, and the Team- sters filed briefs which have been duly considered. 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 au- thority in this proceeding 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. Upon the entire record in this case, including the briefs of the parties, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER Petroleum Engineering is a California corporation engaged in the business of construction, installation, and maintenance of petroleum facilities in northern California. It was stipulated that during the past 12 months Petroleum Engineering has purchased goods and materials in excess of $50,000 from points locat- ed outside the State of California. We find that Petroleum Engineering is engaged in II. THE LABOR ORGANIZATIONS INVOLVED It was stipulated and we find that Plumbers Local 447 and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Locals 980 and 78, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In February and March 1975, Petroleum Engineer- ing installed vapor recovery systems at three or four gasoline stations in Sacramento, California. The work, which is required by the Environmental Pro- tection Agency to meet antipollution standards, in- volves the emplacement of pipes between the storage tanks and dispenser pumps to recapture the vapors released by the gasoline before they enter the at- mosphere. Petroleum Engineering has completed from 800 to 1,500 of the aforementioned systems in the past 2 years. All such work has been performed for the ma- jor oil companies at service stations in Sacramento and the San Francisco Bay area. Relevant to the in- stant proceeding, the Employer has handled about 40 jobs for Shell Oil Company and approximately 20 more for Standard Oil Company. When installing the recovery pipe at existing stations, the Company uses its own crew of employees. Such workers are repre- sented by Locals 980 and 78, Teamsters. However, the Employer subcontracts out all plumbing, includ- ing the vapor recovery system, during the construc- tion of new gasoline stations. Plumbers Business Representative Ralph Biby ob- served members of the Teamsters conducting such operations at a Shell service station on March 3, 1975. Since there was substantial unemployment among the Plumbers at the time, Biby was concerned that his Union had not been given the plumbing and pipefitting work. He then inquired relative to the hourly wages re- ceived by employees of Petroleum Engineering for performing these functions. After one employee re- fused to provide this information, two other workers advised that the Teamsters assigned to the pipe work made $4.75 and $5.25 per hour, excluding fringe ben- efits.' According to the testimony of a Teamsters Contractors that employ plumbers from the Local 447 hiring hall for the Continued 220 NLRB No. 8 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD member, Biby concluded that "it looks more like plumbers or pipefitters work." Without further investigation, Local 447 began picketing the Shell station the following day. Al- though the pickets carried publicity signs indicating that the Employer was paying wages which did not conform with the prevailing rate and existing condi- tions, they did not attempt to disrupt or interfere with the ongoing work. In this connection, Steve Myers of the Teamsters testified that during a con- versation with a picketer he was told that "all he [Bi- by] wants is for us to have a journeyman on the job." Since Local 447 was picketing his company's gas stations, William Stein of Shell Oil contacted Petro- leum Engineering relative to this problem. The Shell field engineer told the Employer's president, Harrell Musco, that Petroleum Engineering would probably not be awarded future contracts for the installation of vapor recovery systems unless the picketing ceased. Fearing that such action by Local 447 would also delay projects at his stations, Emmett Bass com- municated almost identical warnings to Musco on behalf of Standard Oil Company. Consequently, both Musco and Clare Cato, the business manager for Local 980, made telephone calls to Biby in an attempt to settle the dispute with the Plumbers. Despite his insistence that Local 447 was picketing solely for the purpose of publicizing the substandard wages paid to the workers, Biby nev- ertheless informed Cato that he thought the Team- sters were performing "plumbers work and we want it." Local 447 thereafter sent pickets to several other Shell stations when the Employer involved herein commenced vapor recovery operations. The record indicates that the Plumbers discontinued such activi- ties after Petroleum Engineering filed unfair labor practice charges with the Board. three distinct phases. The first phase consists of at- taching lines from gas storage tanks to the tanks which fill them. In the second phase, vapor recovery pipelines are installed from the gas storage tanks to the pumps which dispense the gasoline into the auto- mobiles. The final phase involves installing a device on the nozzles of the dispensers to capture vapors as the gas tanks of the cars are being filled. The testimony at the hearing shows that the dis- pute herein arose over the second phase of the vapor recovery system installation at existing gasoline ser- vice stations. C. The Contentions of the Parties Respondent Local 447 argues that there is no rea- sonable cause to believe that it violated Section 8(b)(4)(D) as it denies having ever threatened to strike, picket, or cause a work stoppage, and asserts that the picketing it did engage in was designed only to protest alleged substandard wages being paid by Petroleum Engineering. In addition, Local 447 main- tains that the disputed work should be assigned to the employees it represents because the contract be- tween the Teamsters and the Employer does not in- clude construction work. The Employer contends that Local 447 violated Section 8(b)(4)(D) by making threatening statements and engaging in picketing for a proscribed purpose. The Employer also submits that the award of the dis- puted work to its own employees is appropriate in view of their possession of the requisite skills, effi- ciency and economy of operation, the contract be- tween Petroleum Engineering and the Teamsters, past company practice, and the Employer' s assign- ment of the work. The Teamsters position is in agree- ment with that of the Employer. B. The Work in Dispute The notice of hearing herein describes the work in dispute as follows: "Installation of vapor recovery devices by Petroleum Engineers, Inc. at various gaso- line service stations." According to the report of the Hearing Officer, the instant proceeding relates to the assignment of work which involves "laying and in- stalling pipes for vapor recovery systems at existing service stations in areas under Plumbers Local No. 447 geographic jurisdiction." In regard to the above, the record indicates that the installation of vapor recovery systems involves installation of vapor recovery systems must pay wages and fringe benefits that aggregate $13.28 per hour D. Applicability of the Statute Before the Board may proceed to a determination of a dispute under 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, and that there is no agreed-upon method, which is binding on all parties, for the voluntary adjustment of the dis- pute. Local 447 denies that its picketing of the Shell ser- vice stations was for purposes violative of Section 8(b)(4)(D) and contends that its sole picketing object was to protest the Employer's substandard wages. However, the record shows that Local 447 Business Representative Biby indicated to both the Employer and the Teamsters that the work here involved be- longed to the Plumbers. There is also testimony that PLUMBERS LOCAL NO. 447 pickets informed employees of Petroleum Engineer- ing they were doing plumbers' work. As a conse- quence of the picketing, two oil companies warned the Employer that they might refuse to grant Petro- leum Engineering future contracts for the installation of vapor recovery systems. In a jurisdictional context, the Board is not charged with finding that a violation did in fact oc- cur, but only that there is reasonable cause to believe that there has been a violation. On the facts herein, and without ruling on the credibility of testimony that is in issue, we find there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work af- ter giving due consideration to various relevant fac- tors. As the Board has stated, the determination in a jurisdictional dispute case is an act of judgment based on common sense and experience in weighing these factors.' The following factors are relevant in making a determination of the dispute before us. 1. Relevant collective-bargaining agreements The Employer contends that section 2 of the cur- rent collective-bargaining agreement between Petro- leum Engineering and the Teamsters requires assign- ment of the disputed work to employees represented by Locals 980 and 78. For the past 10 years, the aforesaid parties have operated under a contract sub- stantially identical to that executed in March 1975. In addition, the Employer noted that it has no cur- rent collective-bargaining agreement with the Plumb- ers. However, the employees represented by the Team- sters include only maintenance employees. Since the agreement specifically excludes construction workers in section 2, the principal argument of the Plumbers is that the contract does not contain provisions for the assignment of the work in dispute to the Team- sters . The Employer alleges that the emplacement of vapor recovery systems at existing service stations is maintenance work covered by the collective-bargain- ing agreement. Much of the testimony at the hearing related to continuous attempts by both parties to dis- tinguish between maintenance and construction work. We do not find that this factor favors the 2 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); International Association of Machinists. Lodge No. 1743, AFL-CIO (J. A Jones Construction Company), 135 NLRB 1402 (1962) 47 award of the disputed work to employees represented by either party. 2. The Employer's assignment and preference The Employer assigned the work in dispute to members of the Teamsters, and it is clear that the Employer wishes to continue this assignment of the work. We find that this factor favors award of the work in dispute to employees represented by the Teamsters. 3. The Employer's practice The Employer's president testified that during the past 18 months his company has received approxi- mately 1,000 contracts for the installation of vapor recovery systems. In this regard, the same Teamsters crew of maintenance employees has moved with the Employer throughout northern California to perform the work involved herein. Accordingly, we find that this factor favors award of the disputed work to em- ployees represented by Teamsters. 4. Skills and the work involved As indicated previously, employees represented by Locals 980 and 78 currently undertake the work of laying the pipe and modifying tanks to make gasoline stations conform to Federal regulations. The record shows the Teamsters attend special training schools and have acquired significant experience in perform- ing pipe modifications of hazardous fuel systems. Nevertheless, other contractors generally use plumb- ers from the local hiring hall for similar operations. Although the record indicates there is only a margin- al difference between the installation process on ex- isting service stations from that performed at new construction sites, such work does not necessarily re- quire the specialized skills possessed by plumbers. Accordingly, we do not find this factor to be deter- rmnatlve. 5. Efficiency and economy of operations The Employer maintained at the hearing that fac- tors of efficiency and economy support assignment of the disputed work to employees represented by the Teamsters. Relevant thereto, the Employer notes that the use of a single integrated crew conserves time when conducting volume operations. Since the Em- ployer constantly moves from jurisdiction to jurisdic- tion in California, hiring from the union halls would reduce the flexibility necessary for such mobility. Therefore, we find that this factor favors award of 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the work in dispute to employees represented by Teamsters. Conclusion Upon consideration of all relevant factors, we con- clude that the Employer's employees who are repre- sented by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Locals 980 and 78, are entitled to the work in dis- pute. We reach this conclusion based upon the Employer's assignment of the disputed work to these employees and the facts that the assignment is con- sistent with the Employer's practice, that employees represented by Locals 980 and 78 possess the requi- site skills to perform the work, and that such an as- signment will apparently result in greater efficiency and economy of operations. Accordingly, we shall determine the dispute before us by awarding the va- por recovery work in dispute to those employees rep- resented by Locals 980 and 78, but not to that Union or its members. In consequence, we find that Plumb- ers Local No. 447 is not entitled by means proscribed under Section 8(b)(4)(D) of the Act to force or re- quire the Employer to assign the disputed work to employees represented by it. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on the basis of the foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of Petroleum Engineering, Inc., who are represented by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Locals 980 and 78, are entitled to per- form the work involved in the second phase of instal- lation of vapor recovery systems at existing gasoline service stations. 2. Plumbers Local No. 447 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Petroleum Engineering, Inc., to as- sign the disputed work described in paragraph 1 of this Determination of Dispute to employees repre- sented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Plumbers Local No. 447 shall notify the Regional Director for Region 20, in writing, whether or not it will refrain from forcing or requiring Petroleum Engineering, Inc., by means proscribed by Section 8(b)(4)(D) to assign the above- described disputed work to employees represented by it rather than to employees represented by Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Locals 980 and 78.