Local 342, Plumbers

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers and Steamfitters Local Union 342, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and Con- duit Fabricators, Inc. Plumbers and Steamfitters Local Union 342, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and Con- duit Fabricators, Inc. and C. Overaa & Co., Party to the Contract. Cases 20-CC-1518 and 20-CE- 109 August 27, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 17, 1976, the National Labor Re- lations Board issued a Decision and Order' in which it found that Respondent violated Section 8(e) and 8(b)(4)(ii)(B) of the National Labor Rela- tions Act, as amended, by causing C. Overaa & Co. (Overaa) employees to refuse to install certain pipe which was prefabricated by Conduit Fabricators, Inc. (Conduit), at the Moraga pumping plant proj- ect in San Francisco, California. Thereafter, on January 23, 1979, the United States Court of Appeals for the District of Colum- bia Circuit issued a decision 2 remanding the case to the Board to clarify its Decision. Specifically, the court stated that it was unable to determine from the Board's Decision precisely what work Re- spondent Steamfitters was claiming for its mem- bers; hence the court stated it could not determine whether the refusal to handle was unlawful. On March 30, 1979, the Board solicited the views of the parties with respect to the issues raised on remand. On April 13, 1979, the Charging Party, Conduit, renewed its request to withdraw these proceedings. The General Counsel filed a statement supporting the Charging Party's request to withdraw the complaint, but also indicating, on the merits, that the Steamfitters violated Section 8(e) and 8(b)(ii)(B) of the Act. The Steamfitters filed a statement that the matter should be decided on the issue of fair claimability and should not be mooted. 3 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- 1 225 NLRB 1364 (1976) 2 598 F2d 216 (DC Cir 1979). :' We find it inappropriate in light of the court's remand for the HBoard to consider at this time the Charging Party's request to ithdraw the proceeding 251 NLRB No. 112 tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. We find it unnecessary to restate here our exten- sive findings and conclusions in the earlier Deci- sion. Instead, we have restricted our discussion to the specific findings which the court seeks to have clarified. As indicated above, the court found that neither the Administrative Law Judge's opinion nor the Board's decision "explicitly determines the precise scope of the Steamfitters' claim, and therefore it is unclear what conduct the Board has proscribed." 4 Specifically, the court was unable to determine whether the Steamfitters conduct was prohibited because it had claimed (1) the cutting and welding work or (2) the "entire fabrication of an integrated unit of stress-relieved, lined, tested and coated pipe." 5 At the outset we find that there is no record evi- dence to show that the Steamfitters limited its claim to the cutting and welding work at the time of its refusal to handle the pipe. 6 Indeed, there is no evidence that the Steamfitters limited its claim to the cutting and welding work at any time prior to the hearing. In short, we find that the Steamfit- ters did not limit its claim to the cutting and weld- ing work a the time of its refusal to handle the pipe. 7 4 he court noted that the Board adopted the recommended Order of the Administrative Iaw Judge, swho had directed the Steamfitters to cease from "giviig effect to the work: preservation provlisons of its ageement with C O()eraa & Co. il the manner herein found unlawful" 111 1973, the Easl ay Municipal Utilities District (East Bay MUI)U chose O()eraa as the general contractor for the Moraga pumping station. Thereafter. Overaa entered into a subcontract with Conduit Io fabricate a cement lined pipe system at the Moraga station iThe process of fahricat- ing the pipe to the required specifications comprised seven stages, as fol- lows (I) Obtaining froim a supplier millrun lengths of steel pipe of the requisite thicknesses ad diameters, as well as assorted attachments- flanges, reducers, couplings, bolts, reinforcing pads, etc. t be incorpo- rated in the finished product by welding: (2) cutting the pipe to size and shape at Conduit's shop in Valleo. California, then performing the ar- ious welding tasks involved in making joints and affixing attachments - that is, converting the raws components into a unified system; (3) hydrnls- tatically testing for watertightness of welds, (4) stress-reliesilg, i e, plac- ing the pipe in ovens to cure distortions of monlecular alignment caused by uneven application of heat during welding Conduit itself did not do this. irstead having it done at a Kaiser facility 12 miles awsay; (5) upon return to the Conduit shop. sandblasting to remove oven scale, (6) lining the interior of the system with cement. followed by 7 days ,of curing i a controlled environment (in the case of pump barrels, which were compto- nents in the system. the lining was vinyl rather than cement); and (7) sandblasting the exterior of the pipe to remove rust created by curing, then applying an exterior coal of red lead paint 6 The ambiguity over the work claimed arose in part from the state- ment that "While the record does not indicate that the Steamfitters made a clear demand for the fabrication, the Administrative I.aw Judge found that at the time of the hearing it claimed the work of cutting and welding the pipe" In so finding. we should have added that neither did the record show that the Steamfitters expressly limited its claim t the cut- ling and welding work at the time it refused to handle the pipe Thus, it is apparent from the record as a whiole that this limited claim was an afterthought first raised at the hearing The court indicated that it would he necesary fr the Board Ito define more clearly tha in thie first Decisil the relicant unitl oif enmploy- Ctontinlued L.OCAL 342!. PLUMBIERSR 795 The court also stated (598 F.2d at 222) that, if the Board finds that the Steamfitters claimed the entire fabrication, "the Board of course will bear its customary responsibility to base its conclusion on substantial evidence on the record taken as a whole." As indicated above, the record does not show that the Steamfitters limited its claim to the cutting arid welding work at the time of the refisal to handle the pipe. In assessing the record evidence to determine the work claimed by the Steamfitters, it must be kept in mind that the Steamfitters sister Local 159 asserted jurisdiction over the Moraga project until July 15. On July 15, Doyle Williams, Respondent Steamfitters business manager, told Overaa's day foreman, Burgen, that the Overaa employees still could not handle the pipe fabricated by Conduit.8 Williams also told Verrinder, Over- aa's job superintendent, that "[T]his pipe . . . is not in conformance with the contract." On July 17, Williams repeated his position that the pipe was "unsuitable for union installation" but agreed to allow the work to go forward while the Steamfit- ters sought redress through the grievance proce- dure. When the grievance procedure was initiated on October 9, the Steamfitters asserted that Overaa "purchased fabrications to be installed . . . by our members without the Union label," and therefore Overaa had violated contractual provisions cover- ing the manner in which pipe is to be fabricated. eecc fr determining helher the work is fairly claimable by the Steamfit- ters i the oard concluded that the Steamfitters has claimed only the cutting aid uelding saork In iesw cnf olur findings in this Supplemerial l)eclsiin, .C find it unecessary Ito explicatn further the relesant unit We would nevertheles, point out that, onl the record here. the spork is inot fairly clairnable evenl if tIh appropriate unit consisted of ever, em- plycer f all employcrs csered under the Steamfitters contract hus, the Scamfitller did not come forward with evidence that cmploecrs sig- natlry tII the contract had performed the total fabrication ,f cement lined and coated pipe tuch as that used ai the Moraga project. Instead. as more fulls described i1 our earlier Decision, the record shows (I) that neither ()cera nor ither contriactors engaged in sinilar v( ork regularl assign tsuch fahbrcatillon tork t their on emplyees and (21 hait uch wiirk is 1n ati} eveIll never performed at the jbstte In these cir um- stlances. it s plain that the Steamfitters clainm could not relate to the pres- crl ationl i1 tlit tork because the unit consisted of enlpphloe performing iorsie work ald the U ork had riot custlmarily been pxrfirrnled orite Ilurgen relaed this nlessage to the other Oseraa pipefitters oii the job Flurgen also laid off a xvclder for lack of allcrnati.c tasks From the foregoing and the entire record, we find that the Steamfitters unqualified refusal to handle the pipe constituted a demand for the entire fabrication. In so finding, we rely, particularly, on (1) the Steamfitters failure to expressly limit its claim at the time it refused to handle the pipe or, for that matter, at any time prior to the hearing in this proceeding; (2) the record evidence that the cutting and welding work is an integral part of the entire fabrication which has not been traditionally or customarily performed by the unit employees at the jobsite or in the contractors' shops. In sum, we find that the Steamfitters claimed the entire fabrication of the integrated unit of stress-re- lieved, lined, coated, and tested pipes that Overaa contracted with Conduit to provide for the Moraga project. The Steamfitters claim that such work was covered by the "work preservation" clauses of its contract with Overaa amounted to an attempt to acquire work which had not previously been per- formed by unit employees at the jobsite or in the contractors' shops, i.e., it is work that was not fairly claimable. We therefore reaffirm our earlier findings that the Steamfitters violated Section 8(e) and 8(b)(4)(ii)(B) of the Act. Accordingly, we reaffirm our adoption of the Administrative Law Judge's recommended Order that the Steamfitters cease from "giving effect to the work-preservation provisions of its agreement with C. Overaa & Co. in the manner herein found unlawful." This Order precludes the Steamfitters from seeking the entire fabrication of the lined and coated pipe including the cutting and welding work. However, we do not intimate by our Deci- sion herein what result would obtain if the Steam- fitters had explicitly limited its claim to the cutting and welding work. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board reaffirms its Order reported at 225 NLRB 1364 (1976). lOCAL 342. 1'LUMuERS 795