Plumbers, Local No. 155

796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local No. 155 and Allied-Mc- Carty Supply Co., Inc., d/b/a Allied/Hussman and International Union of Operating Engineers, Local No. 6-6A-6B. Case 26-CD-116 February 6, 1976 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed-by Allied-McCarty Supply Co., Inc., d/b/a Allied/Hussman, herein called the Employer, on May 10, 1975, alleging that United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Cana- da, Local No. 155,' herein referred to as Plumbers, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign the work in dis- pute to employees represented by Plumbers rather than to employees represented by International Union of Operating Engineers, Local No. 6-6A-6B, herein called Operating Engineers. Pursuant to notice, a hearing was held before Hearing Officer William D. Levy on September 30, 1975. All parties were afforded an opportunity to be present and heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the is- sues. As discussed below, Respondent Plumbers counsel and business manager walked out of the hearing shortly after it opened. Thereafter, the Em- ployer, Plumbers, and Operating Engineers filed briefs. In addition, Plumbers has requested a hearing de novo. Pursuant to the provision 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. Although a hearing was held as indicated above, Respondent Plumbers contends that it was not af- forded a full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. In this connection, Respondent asserts that the Hearing Officer erred in denying its 'Although the International Union was also named as a Respondent in the original charge , it was never served with a copy of the charge or the notice of hearing. Therefore , we grant the Employer's request to withdraw the charge as it relates to the International. request for a continuance due to the illness of coun- sel. Tom Gentry, counsel for Plumbers, sought a 45- day postponement at the start of the hearing because he was still recovering from heart surgery. The Hear- ing Officer denied such request on the grounds that the hearing had been postponed on three prior occa- sions, and that Respondent Union had been advised at the time of the last postponement order that no further postponements would be granted. When the Hearing Officer asked Gentry if he would stipulate that Respondent is a labor organization within the meaning of the Act, counsel replied that he was leav- ing the hearing for health reasons. The Plumbers business manager, Joseph Woodson, then informed the Hearing Officer that he was not prepared to con- tinue the hearing because he was incapable of repre- senting his Local. Even though the Hearing Officer called a brief recess in order to give Respondent an opportunity to secure other representation, Woodson failed to obtain new counsel and, subsequently, he also left the hearing room. The record in this proceeding reveals that the Re- gional Director had postponed the hearing on three different occasions for a total of 97 days. Even though the first postponement resulted from the joint request of Respondent and Employer, the final two delays were at Gentry's request on account of his recuperation from a heart operation. Four days be- fore the instant hearing, Gentry told the Hearing Of- ficer that he would probably be unable to represent the Plumbers. The Hearing Officer then contacted the Union's business manager and advised him the hearing would be conducted as scheduled on Sep- tember 30. Therefore, it is clear that Respondent Plumbers had more than sufficient notice of counsel's physical condition to obtain other repre- sentation prior to the hearing. According to Section 102.64 of the Board Rules and Regulations, a Hearing Officer has the discretion to continue the hearing or adjourn it to a later date upon request for a postponement. Inasmuch as the jurisdictional dispute herein, which receives priority in processing over all other cases except those of like character under Section 10(1) of the Act, had already been delayed for 97 days, we find that the Hearing Officer did not abuse his discretion in denying Respondent's motion for an additional 45-day con- tinuance. Accordingly, Respondent's request for a hearing de novo is hereby denied. The Board has also reviewed the other 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, the Board 222 NLRB No. 127 PLUMBERS, LOCAL NO. 155 797 makes the following findings: for individuals represented by his Union. The Em- ployer was willing to use members of the Plumbers to I. THE BUSINESS OF THE EMPLOYER perform installation work for commercial refrigera- The Employer is a Missouri corporation engaged in the sale, installation, and service of commercial refrigeration equipment, with its main office located in Joplin, Missouri, and an additional office in Little Rock, Arkansas. It was stipulated that during the past 12 months the Employer has purchased goods and materials valued in excess of $50,000 from points located outside the State of Arkansas. During the same period of time, the Employer's gross volume of business exceeded $500,000. We find that Allied-McCarty Supply Co., Inc., d/b/a Allied/Hussman, is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED Due to the absence of counsel, Respondent did not stipulate as to the status of the labor organizations involved herein. However, we find, based on the stip- ulations by the same parties in a prior proceeding,2 that both the Plumbers and the Operating Engineers are labor organizations within the meaning of Sec- tion 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute On February 10, 1970, the Operating Engineers was certified by the National Labor Relations Board as the collective-bargaining representative for "all service and installation employees employed by Al- lied-McCarty." Thereafter, the Employer and the Operating Engineers entered into a series of collec- tive-bargaining agreements, the current agreement being for a 2-year term expiring August 4, 1977. In each of these agreements, the Employer recognized the Operating Engineers as the exclusive bargaining agent for all of its employees engaged in the new construction, repair, and maintenance of refrigera- tion equipment. These contracts have been extended to cover employees at all branch offices of the Em- ployer, including the Little Rock, Arkansas, office. After the Employer opened the Little Rock facility on April 15, 1974, Respondent's business manager, Joseph Woodson, sought a meeting with representa- tives of the firm to discuss employment opportunities 2 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local No 155 (Allied- McCarty Supply Co.), 215 NLRB No. 135 (1974). tion equipment in the Little Rock area, but refused to sign a collective-bargaining agreement. The Employer then negotiated a contract with Safeway for the installation and service of refrigera- tion equipment for a new store under construction in Little Rock. Since the Employer still would not exe- cute a contract with the Plumbers, the Union com- menced picketing the jobsite at the Safeway store in July 1974. As a result of this action, the Operating Engineers filed charges against the Plumbers. On De- cember 16, 1974, the Board entered a decision in Case 26-CD-108 that awarded the work in dispute to the employees represented by the Operating Engi- neers.3 Five months later, Employer was awarded a con- tract to remodel the refrigeration equipment at -a Kroger supermarket in Little Rock. The Employer assigned this job to its own employees represented by the Operating Engineers, and these employees began work at the Kroger store on April 29, 1975. According to the testimony of Wayne Leach, the Employer's branch manager in Little Rock, Wood- son contacted him on May 4 or 5, 1975, to inquire as to who was going to perform the work on the Kroger job. Leach stated that he informed the business man- ager for the Plumbers that members of the Operating Engineers would install the equipment, but the Em- ployer would consider using Respondent's members if additional men were needed. However, Woodson was unwilling to permit the Plumbers to work on the same job with Operating Engineers. Leach further testified that during the course of this conversation Woodson requested that the Employer use members of the Plumbers to perform the work in dispute. On May 9, 1975, a picket appeared at the Kroger jobsite carrying a sign which read: "For information- al purposes only. Plumbers and Steamfitters, Local Union No. 155, wishes to inform the public, that Al- lied/Hussman does not conform to the wages and conditions established by Local 155 in its area." Leach said the sign was similar to the one he had seen at the Safeway store in Little Rock the previous year. Employees of an electrical contractor assigned to work at the same job subsequently refused to cross the picket line. Thereafter, Kroger officials ordered the Employer to remove its employees from the job- site on May 12. The picketing continued until May 15 or 16, and ceased only after the Board sought a temporary restraining order. 'Supra, fn. 2. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Work in Dispute The work in dispute herein is the installation of commercial refrigeration equipment and materials in a Kroger supermarket located at 1100 East Roosevelt Road in Little Rock, Arkansas, including the instal- lation of copper liquid and vacuum lines between re- mote condensers and internal evaporators in the re- frigeration cases. This, in turn, involves welding of copper tubing, connection of this tubing to the refri- gerator and compressor, and charging the unit with Freon to obtain the necessary temperatures. C. Contentions of the Parties At the prior hearing in Case 26-CD-108, the Plumbers argued that area practice favors an award of the disputed work to its members. We assume that the Plumbers takes the same position in this proceed- ing. The Employer contends that the Plumbers violated Section 8(b)(4)(D) of the Act by seeking to compel the assignment of the disputed work to its members. It further submits that the award of the disputed work to employees represented by the Operating En- gineers is appropriate in view of: (1) their possession of the requisite skills, (2) efficiency and economy of operation, (3) the Board's certification and the Employer's own subsequent longstanding contractu- al relationship with the Operating Engineers, (4) past company practice, (5) the Employer's assignment of the work, and (6) the Board's award of the disputed work to the Operating Engineers in Case 26-CD-108. Finally, the Employer suggests there is a real possi- bility that the dispute will continue to recur at other locations unless a broad award of the work is given. It therefore desires that the Board extend the scope of the award to cover all jobs performed by the Em- ployer within the territorial jurisdiction of Plumbers Local 155. The position of the Operating Engineers is in agreement with that of the Employer. 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. The record indicates that the Plumbers, through its business manager, sought and demanded from the Employer assignment of the work in dispute on May 4 or 5, 1975. Thereafter, Respondent, in support of its demand, picketed the project at the Kroger super- market for approximately I week. When the electri- cians on the -project refused to cross the picket line, Kroger requested that the Employer remove its men from the jobsite. At the hearing, the Employer's Lit- tle Rock branch manager testified that Respondent Plumbers was continuing to claim the disputed work assigned to members of Operating Engineers. 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 of Section 8(b)(4)(D) of the Act. We find there is reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated. Finally, there is no evidence in this case that the disputants are party to any procedure which could result in a determination of the instant controversy that would be binding on all. 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 commonsense and experience in weighing these factors .4 The following factors are relevant in making a determination of the dispute before us: 1. Board certifications and relevant collective-bargaining agreements The Operating Engineers was certified by the Board on February 10, 1970, as the collective-bar- gaining representative for "all service and installa- tion employees employed by Allied-McCarty." Since that time, Employer and Operating Engineers have entered into a series of collective-bargaining agree- ments covering all of the firm's locations. The most recent agreement runs for a 2-year period and expires on August 4, 1977. Under that contract, "the Compa- ny recognizes the Union as the sole collective bar- gaining agency for all its nonsupervisory employees engaged in new construction, repair and mainte- nance of refrigeration . . . equipment." On the other hand, the Employer has refused to become a party to an agreement with the Plumbers 4 N.L R.B. v. Radio and Television Broadcast Engineers Union s,t Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (Cgtumbra 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) PLUMBERS, LOCAL NO. 155 or to execute a letter of intent which would-effective- ly bind the Employer to hire individuals furnished by that Union under terms and conditions negotiated by the Plumbers and several employers in the Little Rock area. Accordingly, we find that these factors favor award of the disputed work to employees represented by the Operating Engineers. 2. Employer practice and preference Pursuant to the collective-bargaining agreement, the Employer has historically assigned the work in dispute to its employees represented by the Operat- ing Engineers and has manifested a preference to continue that assignment.' We therefore find that this factor favors award of the disputed work to em- ployees represented by the Operating Engineers. 3. Prior award by the Board On December 16, 1974, the Board in Case 26-CD-108 awarded the work in dispute to employ- ees represented by the Operating Engineers. The sole difference in the two disputes is that here the Em- ployer was remodeling existing equipment at the Kroger store, whereas in Case 26-CD-108 the Em- ployer was installing new equipment at a Safeway supermarket. However, we do not think that this dis- tinction requires a different result. As a result, we find that our decision in Case 26-CD-108 favors an award of the disputed work to employees represented by the Operating Engineers. 4. Industry and area practice At the prior hearing, the Plumbers introduced evi- dence to support its claim that area practice called for individuals represented by the Plumbers to per- form the disputed work. The record in Case 26-CD-108 reveals that there are three union con- tractors in the relevant area who sell, install, and ser- vice refrigeration equipment, In each case, the owner of the business is himself a member of the Plumbers and himself performs the disputed work. Here the Operating Engineers representative testified that his Union represented the employees of several other contractors in the surrounding area that performed similar work. We therefore find that this factor is inconclusive and does not favor an award to employees repre- sented by either Union. 5 The only exception to this practice occurred at a store in Benton, Arkan- sas, where the Employer assigned the work to members of the Plumbers in 5. Other factors 799 Other factors normally considered relevant, such as skills and efficiency and economy of operations, are of little aid in the resolution of this dispute. The Plumbers contended in the Safeway dispute that its formal apprenticeship program trains individuals in the installation of commercial refrigeration equip- ment. Although the Operating Engineers has no simi- lar program, the Employer asserts that its members possess the necessary skills to perform the work in dispute. Moreover, the Employer contends that use of plumbers on the Safeway job resulted in costly warranty repair work for the firm over a 9-month period. In addition, Leach testified that it is more economical and efficient for the Employer to assign the work in dispute to members of the Operating En- gineers because they can be transferred among vari- ous jobsites. However, we find these factors to be inconclusive and that they do not favor an award to employees represented by either Union. Conclusion as to the Merits of the Dispute Upon consideration of all the relevant factors, we conclude that the Employer's employees who are represented by International Union of Operating En- gineers, Local 6-6A-6B, are entitled to the work in dispute. We reach this conclusion based on the Board certification of the Operating Engineers, the Employer's current collective-bargaining agreement with the Operating Engineers, the prior award by the Board in Case 26-CD-108,6 and the Employer's pref- erence and past practice of assigning the disputed work to these employees. Accordingly, we shall de- termine the instant dispute before us by awarding the work in question to employees represented by Inter- national Union of Operating Engineers, Local 6-6A-6B, but not to that Union or its members. Ad- ditionally, we find that the Plumbers is not entitled by means proscribed under Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees represented by it. Scope of the Determination Since we recently made an award of similar work in a dispute between the same parties in Case 26-CD-108, the Employer requests that the Board fix the scope of the award to cover all jobs performed by the Employer within the territorial jurisdiction of order to avoid an anticipated labor dispute and to meet the customer's requirement that the work be completed expeditiously. 6 See fn 2, supra 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers Local 155. In circumstances such as the present, where there is an indication that the dispute is likely to recur, it has been the Board's policy to issue an award broad enough to encompass the geo- graphical area in which an employer does business and the jurisdictions of the competing unions coin- cide. Therefore, our determination will cover assign- ment of the disputed work in the area in, which Al- lied-McCarty operates and in which the geographical jurisdictions of United Association of Journeymen and Apprentices of the Plumbing and Pipefitting In- dustry of the United States and Canada, Local No. 155, and International Union of Operating Engi- neers, Local No. 6-6A-6B, coincide .7 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 makes the following Determination of Dispute: 1. Employees of Allied-McCarty Supply Co., Inc., d/b/a Allied/Hussman, who are represented by In- ternational Union of Operating Engineers, Local 6-6A-6B, are entitled to perform the work involved in the installation of commercial refrigeration equip- ment and materials, including the installation of cop- 7 Sheet Metal Workers Local Union No 85 (Kewaunee Scientific Equipment Corporation), 198 NLRB 771 (1972). per liquid and vacuum lines between remote con- densers and internal evaporators in the refrigeration cases on work performed by Allied-McCarty Supply Co., Inc., d/b/a Allied/Hussman, wherever the juris- dictions of International Union of Operating Engi- neers, Local No. 6-6A-6B, and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Cana- da, Local No. 155, coincide. 2. United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local No. 155, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Allied-McCarty Supply Co., Inc., d/b/a Allied/Hussman, to assign the dis- puted work described in paragraph 1 of this Determi- nation of Dispute to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Cana- da, Local No. 155, shall notify the Regional Director for Region 26, in writing, whether or not it will re- frain from forcing or requiring Allied-McCarty Sup- ply Co., Inc., d/b/a Allied/Hussman, by means pro- scribed by Section 8(b)(4)(D) of the Act, to assign the above-described disputed work to employees repre- sented by it rather than to employees represented by International Union of Operating Engineers, Local No. 6-6A-6B.