Building & Construction Trades Council of Portland

National Labor Relations Board - Board Decisions

Feb 12, 1968

169 N.L.R.B. 753 (N.L.R.B. 1968)

BUILDING & CONSTRUCTION TRADES COUNCIL OF PORTLAND 753
Building and Construction Trades Council of Port-
land and Vicinity, Sheet Metal Workers Local 16,
AFL-CIO, Plumbers and Pipefitters Local 51,
AFL-CIO and Siegler Service Company, Charg-
ing Party, and International Chemical Workers
Union Local 766, AFL-CIO, Party to Contract.
Case 36-CD-43
February 12, 1968
Oregon and were delivered to Siegler Service Com-
pany from points directly outside the State of
Oregon or directly from persons who in turn
received said goods and materials directly from
points outside the State of Oregon. We find that the
Employer is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdic-
tion herein.
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , follow-
ing a charge filed by the Siegler Service Company,
herein called the Employer , on August 25, 1967, al-
leging that the Building and Construction Trades
Council of Portland and Vicinity acting as agent for
Sheet Metal Workers Local 16, AFL-CIO, herein
called Sheet Metal Workers , and Plumbers and
Pipefitters Local 51, AFL-CIO, herein called
Plumbers, had violated Section 8(b)(4)(D) of the
Act. Pursuant to notice , a hearing was held at Port-
land, Oregon , on October 9 and 10 , 1967, before
Hearing Officer Dale Cubbison . The Employer, the
International Chemical Workers Union , Local 766,
AFL-CIO, herein called Chemical Workers, and
the Building Trades Council for itself and for the
Sheet Metal Workers and Plumbers appeared at the
hearing and were afforded full opportunity to be
heard , to examine and cross-examine witnesses,
and to adduce evidence bearing upon the issues.
The rulings of the Hearing Officer made at the hear-
ing are free from prejudicial error and are hereby af-
firmed . Thereafter, the Employer filed a brief be-
fore the Board.
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
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated to the following facts: Sie-
gler Service Company is an Oregon corporation
wholly owned by Lear Siegler, Incorporated, a
California corporation. Siegler Service Company is
engaged in the sale, servicing, installation, replace-
ment, and repair of heating and air-conditioning
equipment. Siegler Service Company purchased
during the year preceding the hearing in excess of
a hundred thousand dollars worth of goods and
materials which originated outside the State of
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that the
Building and Construction Trades Council of Port-
land and Vicinity , the Sheet Metal Workers Local
16, AFL-CIO, the Plumbers and Pipefitters Local
51, AFL-CIO, and the International Chemical
Workers Union Local 766, AFL-CIO, are labor or-
ganizations within the meaning of the Act.
III. THE DISPUTE
A. The Work in Issue; Background Facts
Forty percent of the Employer's business is
derived from the installation of ductless heating
equipment owned and leased by Northwest Natural
Gas Company pursuant to contracts with that com-
pany. Another 40 percent of its business is derived
from sales, service, and installation of central heat-
ing equipment. The remainder of its business is
derived from miscellaneous installation, repair, and
rebuilding services.
Siegler employs approximately 14 employees at
its Portland, Astoria, and Eugene, Oregon, loca-
tions. Its employees, who are currently represented
by the Chemical Workers, are classified as working
foremen and senior and junior gas-burning-equip-
ment installers.
The work performed and in dispute, the installa-
tion of heating and air-conditioning equipment, in-
volves cutting and fitting of pipe and prefabricated
sheet metal ducts and vents. The sheet metal items
are prefabricated to fit the particular job and only
minor cutting is required. The Employer generally
assigns only one employee to each job to install the
equipment and duct work, except that an additional
employee may assist in setting the heavy heating or
cooling unit in place. The installer assigned to the
job cuts and fits sheet metal duct work and vents
and also cuts, threads, fits, and pressure tests the
gas pipes, in each case using the appropriate sheet
metal, pipefitting, or testing tools. Specifically, the
installer connects and runs a gas pipe
"downstream" from the meter to the furnace and
connects the pipe to the furnance. He also runs a
prefabricated sheet metal vent to the flue, generally
through the roof. When installing a central heating
unit, the employee must also install sheet metal
ducts which pass hot air to various rooms in the
169 NLRB No. 118
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house. These ducts are prefabricated and only in-
volve fitting the duct work together with occasional
minor alterations. He then pressure tests the pipe,
purges the line of air, lights the unit, and tests it in
operation. Manufacture of sheet metal vents and
ducts as well as electrical work is subcontracted.
B. Applicability of the Statute
In a proceeding under Section 10(k) of the Act,
the Board is required to find that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated. For this purpose, the Board must find
evidence in the record supporting the belief that the
charged labor organization has engaged in or in-
duced, or encouraged a strike, or has threatened,
coerced, or restrained any person engaged in com-
merce, with an object of forcing an employer to as-
sign certain work to employees in a particular labor
organization or trade rather than to employees in
another labor organization or trade.
In April 1967 the Employer received a letter
from the Building Trades Council, written on behalf
of the Sheet Metal Workers, requesting that the
Employer appear before its executive board to
discuss "why action should not be taken against
[the Employer] for paying less than the recognized
wages and working conditions for the area." The
Employer made no reply. The matter was sub-
sequently discussed at a meeting between the Em-
ployer and the Multnomah County Labor Council,
at which the Employer informed the Council that he
already had a contract with the Chemical Workers.
Shortly after the Employer began performing cer-
tain work for general contractor Duane Jeremiah in
July 1967, Building Trades Council representative
Earl Kirkland called Jeremiah and informed him
"that there was no agreement between ... Siegler
Service Company and the Portland Building Trades
Council and that there would have to be agreement
in order for the job to run amiably." (Emphasis sup-
plied.) Siegler Manager Herman Ebert also testified
that at a subsequent meeting representative Kirk-
land threatened him with "economic measures"
unless he acquiesced in the demands of the Building
Trades Council. Kirkland denied using the word
"economic."
Jeremiah and Ebert both testified that, about a
week later, Jeremiah called Ebert and told him to
take his men off the job if he could not get the
matter straightened out with the Building Trades
Council. While Ebert further testified that Jeremiah
stated that he was requiring this action in response
to Kirkland's threat that Kirkland would otherwise
"close the job," Jeremiah denied having made such
a statement. Jeremiah's prehearing affidavit, how-
ever, indicated that Kirkland had twice so
threatened him.
I The record indicates that when the contract was executed, an im-
proper expiration date had been included, and that, in February 1967,
representatives of the Employer and the Chemical Workers corrected the
The evidence indicating that Kirkland told Jere-
miah and Ebert that the Employer would have to
come to an agreement with the Building Trades
Council in order for the job to run "amiably," and
that unless the Employer acquiesced in the Coun-
cil's demands the Council would take economic
measures against the Employer and Jeremiah's
company, supports a conclusion that there is
reasonable cause to believe that a violation of Sec-
tion 8(b)(4)(D) was committed. "Economic mea-
sures" could only have meant those weapons of
picketing and boycott in the arsenal of the Union
the use of which the Act frowns upon in jurisdic-
tional disputes.
We find, therefore, without resolving the conflicts
in testimony, that there is reasonable cause to be-
lieve that the Building Trades Council, acting for
the Plumbers and the Sheet Metal Workers, em-
ployed unlawful measures with an object and pur-
pose of forcing the Employer to assign the disputed
work only to members of the Plumbers and the
Sheet Metal Workers. Accordingly, the dispute is
properly before the Board for determination.
C. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various relevant factors,
and the Board has held that its determination in ju-
risdictional dispute cases is an act of judgment
based upon commonsense and experience in
balancing such factors. The following factors are
relevant in support of the contentions of the parties
herein.
1. Collective-bargaining agreement
Siegler Service has had a bargaining agreement
with the Chemical Workers since November 1966.1
The Plumbers, the Sheet Metal Workers, and the
Council have had no contracts with the Company.
2. Company, area, and industry practice
The area practice is not clearly defined. The
Chemical Workers has a contract with another Sie-
gler gas heating company in Seattle, Washington,
and also with six other gas-equipment installers in
the Pacific northwest. While the Sheet Metal Work-
ers has contracts with companies which do some
gas-heating installation in the Oregon area, these
companies are primarily engaged in plumbing or
sheet metal work and secondarily engaged in heat-
ing and air conditioning. The Plumbers Union also
does some gas-piping work in the Portland area, but
the extent to which this work is related to gas-heat-
ing installation is not clear.
mistake to their mutual satisfaction and have in fact to this date followed
the terms of the contract
BUILDING & CONSTRUCTION TRADES COUNCIL OF PORTLAND
3. Skills of the employees
The Plumbers and the Sheet Metal Workers
receive more training and undergo a more rigorous
examination of their abilities in their respective spe-
cialties. However, none of these employees appear
to be especially trained to install and test furnaces.
The duties and operations involved in the installa-
tion of the heating and air-conditioning units are
such that the training and skills of employees who
are represented by the Chemical Workers are suffi-
cient to carry out all of the requisite operations. All
of these latter employees attend a school of instruc-
tion conducted by Northwest Natural Gas Com-
pany and receive specialized on-the-job training.
The Employer is apparently satisfied with the skills
of its employees,
4. Efficiency and economy of operations
As discussed above, except for assistance in its
placement, the installation of a unit requires the at-
tention of only one employee. That employee runs
the pipe from the meter, tests the pipe for pressure,
attaches the pipe to the furnace, purges the line of
air, connects the ducts and vents, and tests the
complete unit in operation. He is able to accomplish
this by himself in a single operation. If the Plumbers
and Sheet Metal Workers were to be assigned the
work, the job would involve a number of different
craftsmen, each performing a minor specialized
operation and returning at different times to the
same job. The result would be a fragmented opera-
tion with increased costs, more complicated
scheduling of workers, and more time required to
complete the job.
We are not impressed with the argument that em-
ployees who are represented by the Plumbers are
trained to perform a stricter pressure test on
pipelines. If the Employer, its customers, and the
State of Oregon are satisfied with the safety stand-
ards met by the Employer and the Chemical Work-
ers, it would not appear that safety can be deemed
a significant factor favoring the plumbers in this
work assignment.
Conclusions
Based upon the entire record and after full con-
sideration of all relevant factors involved, including
755
the Employer's assignment , the current bargaining
contract , the nature of the disputed work , the com-
parable skills of the competing employees , and the
economical and efficient operation of the work as
currently assigned , we think that the work assign-
ment as made by the Employer is proper. We shall
determine the dispute before us by awarding all in-
stallation , repair , and service of heating and air-con-
ditioning equipment, including the fitting of pipe
and prefabricated ducts and vents attendant
thereto , to those employees represented by the In-
ternational Chemical Workers Union Local 766,
AFL-CIO, but not to that union or its members.
This determination is limited to the particular con-
troversy giving rise to this dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the basis of
the foregoing findings, the National Labor Rela-
tions Board hereby makes the following Determina-
tion of Dispute:
1. Employees of Siegler Service Company who
are represented by International Chemical Workers
Union Local 766, AFL-CIO, are entitled to per-
form the work of installing , repairing, and servicing
heating and air-conditioning equipment in Portland
and vicinity.
2. The Building Trades Council of Portland and
Vicinity , Sheet Metal Workers Local 16,
AFL-CIO, and Plumbers and Pipefitters Local 51,
AFL-CIO, are not, and have not been , entitled, by
means proscribed by Section 8(b)(4)(D ) of the Act,
to force or require Siegler Service Company to as-
sign the above work to its members.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Building Trades
Council of Portland and Vicinity , Sheet Metal Work-
ers Local 16 , AFL-CIO, and Plumbers and
Pipefitters Local 51, AFL-CIO, shall notify the
Regional Director for Region 19, in writing,
whether they will or will not refrain from forcing or
requiring the Employer , by means proscribed by
Section 8 (b)(4)(D), to assign the work in dispute to
employees represented by the Plumbers and/or
Sheet Metal Workers , rather than to employees
represented by the Chemical Workers.
350-212 0-70-49