Intl. Brotherhood of Boilermakers, Loc. 74

National Labor Relations Board - Board Decisions

Aug 21, 1972

198 N.L.R.B. 1015 (N.L.R.B. 1972)

INTL. BROTHERHOOD OF BOILERMAKERS, LOC. 74 1015
International Brotherhood of Boilermakers , Iron Ship-
builders, Welders and Helpers of America,
AFL-CIO, Local Union No. 74 and Service
Technology Corporation and United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada, AFL-CIO/CLC, Local Union No. 211.
Case 23-CD-282
August 21, 1972
DECISION AND DETERMINATION OF
DISPUTE
States, including an office located at building 1 of the
Manned Spacecraft Center, Harris County, Texas;
that the Employer is engaged in the business of
supplying technical and maintenance services in
connection with the exhibit, escort, and library
services at the Manned Spacecraft Center; and that
during the past year the Employer has received in the
State of Texas goods valued in excess of $50,000
from points located outside the State of Texas.
Accordingly, 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 policies of
the Act to assert jurisdiction in this proceeding.
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Service Technology Corporation,
herein called the Employer, alleging that Internation-
al Brotherhood of Boilermakers, Iron, Shipbuilders,
Welders and Helpers of America, AFL-CIO, Local
Union No. 74, herein called Boilermakers, had
violated Section 8(b)(4)(i) and (ii)(D) of the Act with
an object of forcing or requiring the Employer to
assign the work in dispute to members of Boilermak-
ers rather than to employees of the Employer
represented by United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada,
AFL-CIO/CLC, Local Union No. 211, herein
referred to as Pipefitters.
Pursuant to notice, a hearing was held before
Hearing Officer Dwain Erwin on May 4, 1972. All
parties participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues. Thereafter, briefs were filed by the
Employer, Boilermakers, and Pipefitters in support
of their positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds them free from
prejudicial error. They are hereby affirmed. The
Board has considered the entire record in this
proceeding, including the briefs, and hereby makes
the following findings:
I. THE EMPLOYER INVOLVED
The parties stipulated, and we find, that the
Employer is a Delaware corporation with offices
located in various cities throughout the United
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Boiler-
makers and Pipefitters are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background Facts
Pursuant to a contract between the National
Aeronautics and Space Administration (NASA) and
the Employer executed approximately 3 years ago,
the latter has supplied the former with technical and
maintenance services at NASA's Manned Spacecraft
Center , utilizing such crafts and trades as are
necessary . Part of such services includes mainte-
nance of the Center 's heating and cooling system,
which the Employer has performed with Pipefitters
members . In or prior to early August 1971, a
deterioration of the tubes in the refrigeration chillers
resulted in NASA's subsequent decision to have the
system completely overhauled by the Employer. This
project was not included in the Employer 's normal
maintenance funds and, in accordance with past
practice in such cases , was specially funded by
NASA. The Employer thereupon assigned this work
to its employees represented by Pipefitters . Although
this was the first time such a project had been
undertaken at the Center , the work involved was
identical to the maintenance performed on this
equipment on a normal , scheduled , recurring basis.
At the time of the dispute, the Employer , Pipefit-
ters , and Boilermakers , as well as nine other
International Unions, were parties to and bound by
the General Presidents ' Project Maintenance Agree-
ment By Contract covering "maintenance , repair and
renovation work [at the Center] recognized by the
unions of the AFL-CIO as being within the
jurisdiction of said Union ." This agreement , howev-
er, does not define the work jurisdiction of the unions
involved , or specifically cover the disputed work.
Boilermakers and Pipefitters , along with many other
198 NLRB No. 147
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
building and construction trade unions, also are
bound by an agreement commonly known as the
Green Book and entitled "Plan For Settling Jurisdic-
tional Disputes Nationally and Locally," containing
"Jurisdictional Agreements Entered Into Between
Affiliated International Unions and [Operative]
Decisions Rendered Affecting the Building Indus-
try." In addition, each of the unions involved herein
are parties to different agreements with various
employer groups covering their respective jurisdic-
tional areas and, in broad, general terms, noting the
types of work performed by each of the disputing
unions.
B. The Work in Dispute
The work in dispute encompassed by the instant
charges and as further defined by the parties
concerns the "rehabilitation of the heating and
cooling system of the . . . (NASA) Manned Space-
craft Center . . . including . . . pulling of the heads;
pulling the tubing, tubing bundles and tube sheets for
inspection , replacement and/or reassembly ; inspec-
tion and reassembly of baffles, freon condensers,
... steam condensers . . . and all incidental repairs
to same ." There is no dispute concerning the shutting
down of the heat exchangers and chillers or with
work associated with freon evaporating compressors
and steam turbines , which work Boilermakers specif-
ically disclaimed at the hearing . The dispute herein
arose when the Employer assigned the work involved
to its employees represented by Pipefitters , rather
than to members of Boilermakers.
C. Contentions of the Parties
1. The Employer: The Employer contends that
there is reasonable cause to believe that Boilermakers
has violated Section 8(b)(4)(D) of the Act, and that
the Employer's assignment of the disputed work to
its employees represented by Pipefitters should be
affirmed on the bases of the Employer's preference,
area and company practice, experience, proficiency,
and efficiency and economy of operations. Addition-
ally the Employer argues, in substance, that an
award of the disputed work to members represented
by Boilermakers will result in unnecessary unem-
ployment of Pipefitters members.
2. Pipefitters: Pipefitters, utilizing substantially
the same arguments presented by the Employer
regarding the assignment of the disputed work,
agrees that its members employed by the Employer
Art VI, "Work Assignments," of the General Presidents ' Agreement,
provides in pertinent part that "Any assignments made in the absence of a
craft shall not be considered an original assignment or be considered a
project practice to that trade " It further provides that in the event of a
protest by a craft as to "what may be considered an improper assignment,"
the Employer shall arrange a meeting of the affected crafts in an attempt to
are entitled to that work. In addition, it urges an
award to its members on the basis of its bargaining
agreement with the Mechanical Contractors Associa-
tion.
3. Boilermakers: Boilermakers argues, basically,
that the work in dispute should be awarded to its
members on the bases of jurisdictional agreements
between it and Pipefitters contained in the Green
Book, International and local union settlements and
awards involving the disputing Unions, the General
Presidents' Project Maintenance Agreement, its
collective-bargaining agreement with the "South
Central Employers," area practice, and its appren-
ticeship training program. Boilermakers further
contends, in substance, that the work in issue is
"capital" in nature as opposed to routine mainte-
nance, and that, therefore, it is a "new" type of work
concerning which there is no company or area
practice.
D. Applicability of the Statute
Before the Board may proceed to a determination
of dispute pursuant to 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. The
uncontested evidence shows that during conversa-
tions with the Employer in mid-August and mid-
September 1971, Boilermakers Business Agent Wen-
delken claimed for that Union's members the chiller
and condensation work involved in overhauling the
Center's heating and cooling system which, together
with the remainder of the work involved therein, the
Employer earlier had assigned to its employees
represented by Pipefitters. The Employer, who
assigned the work to Pipefitters in the absence of
Boilermakers, thereupon attempted to resolve the
dispute at a September 31 conference which it called
pursuant to the "Wage Assignments" provision of
the General Presidents' Project Maintenance Agree-
ment.' This attempt was unsuccessful, however,
because Pipefitters business agent refused to attend
the meeting, contending, in substance, that a meeting
would be futile since there "was nothing he could
compromise in the matter [because] he didn't intend
to give up the work." Upon being appraised of the
foregoing by the Employer, Wendleken stated,
"Well, it's [Boilermakers] work . . . and I am going
to do everything that is necessary to get this work."
Subsequent to an October 6 conversation with the
Employer when Wendelken again claimed the
resolve the issue, that if such conference does not resolve the issue, the
matter then shall be referred to the International Union of the aggrieved
party for further processing, and that if the International Unions involved
fail to reach a project decision , the matter may then be referred to the
General Presidents ' committee for "assistance in resolving said dispute."
INTL. BROTHERHOOD OF BOILERMAKERS , LOC. 74 1017
disputed work, the Employer again invoked the wage
assignments provision of the General Presidents'
Agreement by telegraphing a request for assistance
to the General Presidents' committee, which failed to
reply. On October 15, Wendelken telephoned the
Employer to ascertain the status of the work
assignments . After learning that the Pipefitters
members had begun performing the work, Wendelk-
en stated that "if you don't assign the work to me by
the 19th [of October], and if the Pipefitters don't
relinquish this work by that time, we are going to
picket the site ." Several days later,- the Employer
again telephoned the General Presidents' committee
for assistance , and again there was no response. On
November 11, after a further unsuccessful attempt to
obtain the claimed work, Wendelken stated to the
Employer that "if you don't give us the work we are
going to picket the site," and that he now had
"authority to do so from my International Union."
At this point, Wendelken waived a document which
he stated contained that authority. On the following
day, the Employer filed the charges giving rise to this
proceeding.
As indicated herein, while article VI of the General
Presidents' Agreement provides machinery calculat-
ed to induce discussion of jurisdictional disputes with
an ultimate goal of reaching a voluntary agreement
upon a method for resolving such disputes, it does
not provide for any method of voluntarily resolving
such controversies if the parties to that agreement
fail to reach accord, as happened herein. Nor does
the record contain any other evidence indicating that
the parties have reached an agreement upon methods
for the voluntary adjustment of this dispute. Accord-
ingly, we conclude, on the basis of the entire record,
that there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred, and that
the dispute is properly before us for determination
under Section 10(k) of the Act.
E. Merits of the Dispute
As stated in the J. A. Jones case,2 we shall,
pursuant to the Supreme Court's CBS decision,3
determine in each case presented for resolution
under Section 10(k) of of the Act the appropriate
assignment of the disputed work only after taking
into account the evidence supporting the claims of
the parties and balancing all relevant factors .4
2 International Association of Machinists, Lodge No 1743, AFL-CIO (J.
A Jones Construction Company), 135 NLRB 1402
3 N LR B v Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia
Broadcasting System), 364 U.S 573
The record shows that although both labor organizations involved
herein have been certified by the Board, neither certification covers the
disputed work , that the apprenticeship training program of each labor
organization teaches the skills involved in the disputed work , that the
1. Collective-bargaining agreements and
International and local union settlements and
awards
Boilermakers contends, in substance, that the work
in dispute is covered by jurisdictional agreements
between Boilermakers and Pipefitters contained in
the Green Book, and that rule 5 thereof 5 awards the
disputed work to boilermakers. The purpose of the
Green Book, ,however, is to set forth specific areas of
agreement between the disputing unions covering
specific work or types of work and the union-entitled
to perform that work. While the Green Book does
indeed assign rule 5 work to boilermakers, it also
restricts the performance of that work to "Refinery
Installations." Moreover, the Employer is not a party
to, and, therefore, not bound by, the union agree-
ments contained in the Green Book.
Boilermakers further argues that work similar to
that in dispute has been awarded to it by various
International and local settlements and awards.
Based thereon, Boilermakers contends that the
Employer is bound by the General Presidents'
Agreement, and that, by assigning the disputed work
to pipefitters rather than boilermakers, the Employer
breached the provisions of paragraph 2, article VI, of
that agreement requiring the Employer to assign
work on the basis of "decisions and agreements of
record and agreements between [the] International
Unions" [involved]. The record shows, however, that
the various settlements and awards relied on by
Boilermakers either are not controlling or are not
relevant insofar as the work in dispute is concerned.
Moreover, the above-cited provisions of the General
Presidents' Agreement also state that "In the absence
of decisions and agreements of record and agree-
ments between International Unions, the [Employer]
shall assign the work consistent with trade or area
practice." As will be noted, infra, the disputed work
was assigned in accordance with "trade or area
practice."
Finally, Boilermakers contends that its collective-
bargaining agreement with "South Central Employ-
ers" covers the work in issue. Similarly, Pipefitters
claims the work on the basis of its bargaining
agreement with the "Mechanical Contractors Associ-
ation of Texas, Inc., et al." The Employer, however,
is not a party to either of these agreements, neither of
which specifically covers the disputed work. There-
members of each labor organization possess the skills necessary to perform
the disputed work; and that the members of each labor organization have
performed the type of work in dispute in various areas throughout the
country These factors, therefore , do not favor either Pipefitters or
Boilermakers.
5 Rule 5 provides that "The installing or removing of cooler , condenser
and heat exchange tube, or tubes of the shell and tube type equipment, by
any mode or method, shall be the work of the Boiler Maker."
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore, none of the foregoing factors relied on by
Boilermakers militate in favor of an award to its
members. Nor does Pipefitters agreement with the
Mechanical Contractors Association favor an award
to its members.
2. The Employer's preference, past practice,
and area and company practice
While the work in dispute involves, for the first
time, an overhaul rather than routine maintenance of
the Center's heating and cooling system, the differ-
ence in the type of work involved appears to be only
in degree, and not in kind. The record shows in this
regard that there is no aspect of any of the work
involved in overhauling the system which Pipefitters
members have not performed during the 10 years
they have been continuously assigned to maintain,
service, and repair the system. At best, the work
assignment in issue constitutes a consolidation of the
routine daily, weekly, or monthly work performed on
the equipment by Pipefitters, and, therefore, is not a
capital or new type of work, as claimed by Boiler-
makers.
Moreover, the Employer, like its predecessors at
the Center, has used Pipefitters members only, and
never Boilermakers, to perform all of the work in
dispute. In addition, the work involves a complete
overhaul of the air-conditioning equipment, and the
record shows that Boilermakers does not have a
single contract with an area employer engaged in the
air-conditioning repair, service, or maintenance
business. Further, the Employer is satisfied with the
quality of work performed by its employees repre-
sented by Pipefitters and favors an award of the
work to them.
In view of the foregoing factors, including the
absence of any boilermakers on the Employer's
payroll, it would appear that the Employer's assign-
ment of the disputed work to its employees repre-
sented by Pipefitters, even though made in the
absence of Boilermakers, was not improper. It
further appears that the Employer's preference and
practice, past practice, and area practice favor an
award of the work in dispute to employees represent-
ed by Pipefitters.
3. Experience, proficiency, preclusion of
unnecessary displacement of employees,
efficiency, and economy of operations
The record shows that approximately 30 of the 40
pipefitters presently employed by the Employer at
the Center have worked there over 10 years, and that
the 8 most experienced and proficient of those
pipefitters assigned to perform the work in issue were
transferred to the project from other pipefitting
duties because they customarily had worked on, and
were intimately familiar with, the equipment in-
volved. It would appear, therefore, that an award of
the disputed work to members of the Boilermakers
would displace steady, reliable, and experienced
employees capable of performing all of the work
involved in overhauling the equipment with persons
who seek to perform only part of that work, and
thereby curtail the Employer's efficiency, economy,
and flexibility of operations.
CONCLUSION
Having considered all pertinent factors herein, we
conclude that employees represented by Pipefitters
are entitled to perform the work in dispute. In
making this determination, we are assigning the
disputed work to employees of Service Technology
Corporation, who are represented by United Associ-
ation of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States and
Canada, AFL-CIO/CLC, Local Union No. 211, but
not to that Union or its members. Our present
determination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the basis of the
foregoing findings and the entire record in this
proceeding , the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
1. Employees of Service Technology Corporation,
who currently are represented by United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Cana-
da, AFL-CIO/CLC, Local Union No. 211, are
entitled to perform the work of rehabilitation of the
heating and cooling system of the National Aeronau-
tics Space Administration (NASA) Manned Space-
craft Center (MSC) located in building 24 of the
NASA-MSC site in Harris County , Texas , including
pulling of the heads ; pulling the tubing, tubing
bundles , and tube sheets for inspection , replacement,
and/or reassembly ; inspection and reassembly of
baffles, freon condensers , and steam condensers, and
all incidental repairs to same.
2. International Brotherhood of Boilermakers,
Iron Shipbuilders , Welders and Helpers of America,
AFL-CIO, Local Union No. 74, is not entitled by
means proscribed by Section 8(b)(4)(D ) of the Act, to
force or require Service Technology Corporation to
assign the disputed work to employees who are
represented by that labor organization.
3. Within 10 days from the date of this Decision
INTL. BROTHERHOOD OF BOILERMAKERS , LOC. 74 1019
and Determination of Dispute, International Broth-
erhood of Boilermakers , Iron Shipbuilders, Welders
and Helpers of America, AFL-CIO, Local Union
No. 74, shall notify the Regional Director for Region
23, in writing, whether or not it will refrain from
forcing or requiring Service Technology Corporation,
by means proscribed by Section 8(b)(4)(D) of the
Act, to assign the work in dispute to individuals
represented by International Brotherhood of Boiler-
makers, Iron Shipbuilders, Welders and Helpers of
America , AFL-CIO, Local Union No. 74 , rather
than to employees of Service Technology Corpora-
tion represented by United Association of Journey-
men and Apprentices of the Plumbing and Pipefit-
ting Industry of the United States and Canada,
AFL-CIO/CLC, Local Union No. 211.