Pipefitters, Local No. 195

94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local No. 195 and Texas Oil and Chemical Terminals. Case 23-CD-359 September 23, 1976 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS storage facility in Orange County, Texas. From Jan- uary through May 1976, the Employer received total gross revenues in excess of $150,000 from the inter- state distribution of petrochemicals from its Texas facility directly to customers located outside the State of Texas. During the same 5-month period the Employer received at its Texas facility goods valued in excess of $1 million which were shipped directly from firms located outside the State of Texas. Ac- cordingly, 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 purposes of the Act to assert jurisdiction herein. This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Texas Oil and Chemical Termi- nals, herein called Texas Oil or Employer, alleging that the United Association of Journeymen and Ap- prentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local No. 195, herein called the Union or Pipefitters, had violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by the Union, rather than to unrepre- sented employees employed by the Employer. A hearing was held before Hearing Officer Robert F. Markey on June 2, 1976, at Beaumont, Texas. The Union failed to appear at the hearing after being duly served with notice of the hearing and tele- phoned by the Hearing Officer. Counsel for the Em- ployer and for South Hampton Company, the In- tervenor, appeared at the hearing and were afforded full opportunity to be heard, to examine and cross- examine the witness, and to adduce evidence bearing on the issues. No briefs were filed by the parties. 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 and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The Employer is a limited partnership established in the State of Texas where it is engaged in the busi- ness of importing, storing, and interstate distribution via pipeline, barge, and oceangoing vessels of petro- chemical products. The Employer maintains its prin- cipal office in Silsbee, Texas, and a pumping and II. THE LABOR ORGANIZATION INVOLVED We find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute During April and May 1976, the Employer was involved in connecting a South Hampton Company petrochemical pipeline to its storage tanks in Orange County, Texas. The disputed work involves the in- stallation of piping, flanges, and valves on the stor- age tanks located on the Employer's premises. At the time the dispute arose, the Employer had assigned this work to its own employees who were not repre- sented by any union. Subsequent to hearing rumors that-the Pipefitters claimed the work and were planning to picket, Chief Engineer Fred R. Crawford, on or about April 26, 1976, met with the Union's business agent, Valentine, at the Pipefitters Hall in Nederland, Texas. At this meeting, Crawford explained that the disputed work would be performed by employees of Texas Oil. Val- entine maintained that the disputed work was new construction and that the Union was performing all the new construction in this area.' Crawford testified that the conversation ended with a statement by Val- entine that "I [Crawford] could go ahead and do what I wanted to do, and that he [Valentine] would do what he had to do . . .." Around 10:30 a.m. on May 3, 1976, a union busi- ness agent, Ellis, and two other men approached Crawford and Working Foreman Waldo at the Texas Oil facility in Orange County, Texas, asked them by whom the piping work would be performed, and, when told that Texas Oil employees would perform 'Valentine did not specify what new construction the Union was han- dling in this area Further, no evidence was produced at the hearing to show the Union was performing all the new construction in the area. 226 NLRB No. 6 PIPEFITTERS, LOCAL NO. 195 95 the work, stated that a picket would be placed at the facility gate. Shortly thereafter the Union commenced picketing the only entrance to the Employer's facility with a sign that stated: This is to advise that South Hampton Company does not employ nor do they have a contract with Pipefitters Local 195. Thereafter, Texas Oil employees who were perform- ing the work in dispute left the worksite and refused to cross the picket line until after the picketing end- ed.2 On May 10, 1976, the United States District Court of the Eastern District of Texas in Beaumont, Texas, pursuant to a petition for an injunction under Section 10(l) of the Act, entered a temporary re- straining order enjoining picketing, threats, and other coercive conduct by the Union at the Employer's fa- cility. A stipulated injunction was entered by the court on May 12, 1976. B. Applicability of the Statute As indicated, on April 26 and May 3, 1976, union representatives claimed the disputed work. Thereaf- ter the Union picketed the only entrance to the Employer's facility. Crawford testified that one of the pickets told him in the presence of Ellis that "the only way we [the Employer] would ever get the pipe installed on those tanks was to sign a contract with Local 195, the Pipefitters." It is clear that the object of the Pipefitters picketing was to have the Employer assign the disputed work to the Union. There is no evidence that the parties have agreed upon a method for the voluntary adjustment of the dispute. Accord- ingly, we find that there is reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated and that the dispute is properly before the Board for de- termination under Section 10(k) of the Act. The record contains evidence only with respect to the following relevant factors: 1. The collective-bargaining agreement The Employer has no collective-bargaining agree- ment with the Union and thus is subject to no con- tractual commitment requiring it to employ the latter's members to install the piping on the storage tanks. 2. Employer assignment and preference The Employer has assigned the work and prefers the assignment to its own employees who have per- formed the work in a satisfactory manner. 3. Skills required The record shows the Employer's unrepresented employees are all qualified to perform the disputed work. In particular, Crawford testified that the weld- ers had all passed a pipe welding test and were certi- fied to perform pipe welding. Conclusion In the absence of any contractual obligation to the Union for performance of the disputed work, or evi- dence with respect to any other relevant factors, we conclude that the assignment of the work to its em- ployees by the Employer, their qualification to do the work, and their performance of the work in a satis- factory manner require an award of the disputed work to the unrepresented employees of the Employ- er. DETERMINATION OF DISPUTE C. Merits of the Dispute The limited testimony presented by the Employer and the failure of the Pipefitters to appear at the hearing resulted in evidence pertinent to only a few of the relevant factors which the Board normally considers in making an award of the disputed work.' 2 The employees of the two subcontractors who were performing work on the premises, General American Transportation Corporation and Nacog- doches Fabricating Company, stopped working when the picketing com- menced and refused to cross the picket Imes until after the picketing ended The employees of the third subcontractor, Dillahunty Electric Company, worked for the remainder of the day and then refused to cross the picket line until the picketing ceased 3 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, Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the foregoing findings and the entire record in this case, the Na- tional Labor Relations Board hereby makes the fol- lowing Determination of Dispute: 1. The Employer's unrepresented employees are entitled to perform the work of installing the piping, flanges, and valves on its storage tanks. 2. United Association of Journeymen and Ap- prentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local No. 195, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to award Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402, 1410-11 (1962) 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the above work to its members or to employees it represents. 3. Within 10 days of the date of this Decision and Determination of Dispute, United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Cana- da, Local No. 195, shall notify the Regional Director for Region 23, in writing, whether or not it will re- frain-from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D), to award the work in dispute to its members rather than to the unrepresented employees.