United Association Of Journeymen And Apprentices Of The Plumbing And Pipe Fitting Industry Of The United States And Canada, Local 195, Afl-Cio

'484 DECISIONS 'OF NATIONAL LABOR- RELATIONS BOARD United Association of Journeymen and Apprentices - of the Plumbing 'and Pipe Fitting Industry'of the United States and . Canada,' Local 195; AFL- CIO and Gulf Oil Corporation and Mars Con- struction Corporation . Case 23-CD-444 23 May 1985 ' DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The charge in this Section 10(k) proceeding was filed 28 November 19841 by Gulf Oil Corporation (the Employer) alleging that the Respondent, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 195, AFL-CIO (the Pipe Fitters) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in pro- scribed activity with an object of forcing the Em- ployer to assign certain work to employees it rep- resents rather than to Mars Construction Corpora- tion's (Mars) unrepresented employees. The hear- ing was held on 16 January 1985 before Hearing Officer John A. Ferguson Jr. The National Labor Relations Board `affirms the hearing officer's -rulings; finding them free from prejudicial error. On the entire record, the Board makes the following findings. 1. JURISDICTION The Employer, a Pennsylvania corporation, is engaged in the business of refining and processing crude oil on a nationwide basis. During the 12 months preceding .the hearing.the Employer pur- chased goods and materials valued in excess of $50,000 which were shipped directly to its Port Arthur, Texas refinery from points outside the State of Texas, and received gross' revenues ex- ceeding $1 million at the refinery. The parties stip- ulate, and we find, that the Employer is engaged= in commerce within the meaning of Section 2(6) and (7) of the Act and that the Pipe Fitters is, a labor organization within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Mars, a Louisiana-based corporation, is.a general contractor 'engaged in 'piping and -mechanical con- struction work. Since April, the Employer has awarded Mars contracts for a variety of projects involving excavation and pipe installation at its Port Arthur; Texas refinery. The contracts includ- ed a 26 June agreement for the installation of con- crete trenches and cast-iron drain piping at the Em- ployer's central cleaning station; a 28 September contract for,- inter alia, -the replacement and instal- lation of 1500 to 2000 feet of cation and anion waste piping at one of the Employer's waste treat- ment plants; and a blanket 11 October contract under which Mars installed fiberglass and carbon steel piping on storage tank pumping machinery and ran carbon steel piping into a loading and un- loading facility. The Employer also hired Mars to install a blower facility at its recovery plant and to work on certain vacuum tower lines; both projects involved "piping" work. Mars' assigned the piping work under the con- tracts to its unrepresented employees. Neither the Employer nor Mars assigned any of the work to employees represented by the Pipe Fitters. On 27 November the Pipe Fitters began picket- ing refinery gate 109, the entranceway assigned to Mars' employees, carrying signs reading, "MARS CONSTRUCTION CORPORATION DOES NOT HAVE A CONTRACT WITH AND -DOES NOT EMPLOY MEMBERS OF LOCAL 195." - On 28 November the Employer's industrial rela- tions department head Andrew Mehalko and attor- ney Deborah Cantrell approached Gate 109, access to which had been blocked by a large group, to ob- serve the picketing. Cantrell asked Pipe Fitters Business Representative Jerry Little to remove the picket signs and individuals blocking the gate. Little replied that he did not have any control over the. people in the picket line and that the picketers were angry because "their work was being taken away from them and being given to people from out of state."2 Little further stated that, while he would try to control picket line violence, "this is going to get worse . . . not better." When Little told the pickets the Employer's officials wanted them to go home, certain unnamed individuals in the group shouted, "[W]hy don't you . tell them Louisiana people to go home . . . and let us work." . On the 'same day, a Port Arthur television station -aired portions: of a news interview- with, Little in which he stated, inter alia, "[L]et's put some of these folks to work that's unemployed and lives here, . _. . If Gulf Oil is gonna keep bringing these contractors in that, hires folks from out of state, your problems is just beginning." On 4 December Pipe Fitters Business Represent- ative Volentine told Mehalko that union craftsmen All dates are 1984 unless otherwise stated 2 It is undisputed this reference was to Mars' unrepresented employees 275 NLRB No. 69 PLUMBERS LOCAL 195 (GULF OIL) had done thousands of good welds at the facility and that he could not understand why the Employ- er was "bringing these people from out of town to do this work." He further stated that "if it is pipe work it is our work." The Pipe Fitters picketing ceased several days after 4 December.3 B. Work in Dispute The disputed work as stated in the notice, of hearing4 involves all piping work, including cut- ting to size, joining and laying pipe, as well as the removal of existing pipe and the installation of new pipe, which work is now being performed by the employees of Mars Construction Corporation at the Gulf Oil Refinery in Port Arthur, Texas. C. Contentions of the Parties At the hearing the Pipe Fitters contended that Section 8(b)(4)(D) of the Act is inapplicable be- cause the Employer was not the object of the Pipe Fitters picketing and did not control the assign- ment of work to Mars' unrepresented employees, and because the employees represented by -the Pipe Fitters were not involved in a work dispute with Mars' .unrepresented employees. The Respondent alternatively contended that the pickets had a lawful recognitional or informational objective. The Employer contends that the case is properly before the Board for determination ; that reasonable cause exists to believe that the Pipe Fitters violated Section 8(b)(4)(D) of the Act; and that the work in dispute should be awarded to Mars' unrepresented employees based on the Employer 's preference and past practice and economy and efficiency of oper- ation. . - I - . 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 find reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed to a'method for voluntary adjustment of the dispute. This case is atypical in that the Charging Party Employer was not the ostensible object of the Pipe .Fitters picketing ` and does .not directly employ the employees who.are performing the disputed work.5 3. On 28 November a temporary 'restraining order was secured from a Texas state court enjoining the pickets from committing acts of violence and limiting them to no more than two persons carrying signs, in con- formity with state law ` ' - ,. 4 Although the Pipe Fitters refused to stipulate to the notice 's descrip- tion of the disputed work it presented no evidence that the description was incorrect 5 Mars, the unrepresented employees' employer, did not file- a charge with the Board and made no appearance at the hearing - 485 We nevertheless find, contrary to the Pipe Fitters contentions, that Section 8(b)(4)(D) is applicable. Section 8(b)(4)(D) makes it an unfair labor prac- tice for a labor organization to engage in pro- scribed activity with an object of "forcing or re- quiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to em- ployees in another labor organization or in another trade, craft, or class." (Emphasis added.) The Board has interpreted this language as showing the "clear intent of Congress to protect not only em- ployers whose work is in dispute from such strike activity, but any employer against whom a union acts with such a purpose."', That. the Employer was .'an object of the Pipe Fitters picketing is disclosed by Little 's statements to Employer officials that the pickets were angry because their work was being given to the out-of- state (Mars) employees, and that the picket line vi- olence would "get worse," presumably because of the continuing .work assignments ,to Mars' unrepre- sented employees; Little's statements to the local media that "[the Employer's] problems were just beginning" if it continued to hire the out-of-state employees; Volentine's statement, to an Employer official, inter . alia, that the pipework belonged to the employees represented by the Pipe Fitters; and the unnamed pickets' demand, evidently made in the presence of Employer and Pipe Fitters officials, that the Employer send the Mars employees home and let them do the work. The statements show that at least one object of the picketing was to force the" Employer to reassign ' work from Mars' unrepresented. employees.to employees represented by the Pipe Fitters.7 - Under these circumstances, we find reasonable -cause to believea violation of Section 8(b)(4)(D) has occurred. No party-contends that there is an agreed method for- voluntary adjustment of the dis- pute..within the meaning of Section 10(k) of the ,Act. Accordingly, ;we find that .the dispute is prop- %erly before the Board for. determination. 6 Longshoremen ILA Local 1911 (Cargo Handlers); 236 NLRB 1439, 1440 (1978) - . 7 Although we do not believe that the record supports the Pipe Fitters claim of a lawful recognitional 'oi informational object, we need not re- solve that question , as our finding of one proscribed object is sufficient to bring the Pipe Fitters conduct 'within the coverage of Sec 8(b)(4)(D) even if a lawful purpose was also. shown to exist Painters Local 79 (O'Brien Plastering), 213 NLRB 788, 790 (1974) 1 - '-We reject the Pipe Fitters assertion that the employees it represents are not engaged in a work dispute with Mars' unrepresented employees By performing the piping work under the contracts, Mars' employees have sufficiently demonstrated that they have a competing claim to the work in dispute See Sheet Metal Workers Local 54 (Goodyear Tire), 203 NLRB 74, 75-76 (1973) . 486 DECISIONS bF NATIONAL LABOR RELATIONS BOARD E. Merits of the Dispute . Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors 'involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 140 (1962). The following factors are relevant in making the determination of this dispute. 1. Employer preference and past practice Since April 1984 the Employer has assigned the disputed work to Mars. Mars has performed the as- signed work with its unrepresented employees, and the Employer concededly prefers to have Mars employees continue to do the work. This factor therefore favors an award to Mars' unrepresented employees. 2. Economy and efficiency of operation' The work Mars employees have performed under the contracts with the Employer includes the disputed piping work as well as excavation, re-bar, concrete, vessel erection, painting, insulation," and electrical instrumentation work. The Employer presented evidence from its construction superin- tendent William James and Mars' marketing man- ager James Standifer that assigning the disputed work to Mars' unrepresented employees is more economical and efficient than assigning the work to employees represented by the Pipe Fitters. James testified that Mars submitted the lowest contract bids of the contractors qualified to per- form the required work, and engaged in "good scheduling" to complete the work "as quickly as possible." He further stated that Mars employees were highly productive and that they performed their work in a "well-executed" and safe manner. Standifer testified that most Mars employees are "qualified in more than one field," with, over 90 percent of them able to switch job classifications as required. He further stated that the Mars employ- ees had worked together for some time and devel- oped a "team concept" that allows them to per- form work in "a very efficient-and safe 'manner." Standifer testified that the Pipe Fitters craft guide- lines limit the scope of work employees represent- ed by it can perform. He estimated that Mars' con- struction costs would be at minimum 30 percent higher using Pipe Fitters-represented employees primarily because of the time lost due to the craft guidelines and the need to hire a support craft group to perform the tasks the pipefitters could not perform under the guidelines. We-therefore find the factor of economy and ' ef- ficiency of operation favors an award to Mars' un- represented employees. Conclusions After considering all the relevant factors, we conclude that Mars' unrepresented employees are entitled to perform the work in dispute. We reach this conclusion relying on the factors of company preference and past practice and economy and effi- ciency of operation. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Mars Construction Corporation are entitled to perform all piping work, including cutting to size, joining and laying pipe, as well as the removal of existing pipe and the installation of new pipe, which work is now being performed by the employees of Mars Construction Coporation at the Gulf Oil"Refinery in Port Arthur, Texas. 2. United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Indus- try of the United States and Canada, Local 195, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Gulf Oil Corporation to assign the disputed work to em- ployees represented by it. 3. Within 10 days from this date, United Associa- tion of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and Canada, Local 195, AFL-CIO shall notify the Regional Director for Region 23 in writing wheth- er it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.