Pipe Fitters Local No. 120, Plumbers

National Labor Relations Board - Board Decisions

Dec 27, 1967

168 N.L.R.B. 997 (N.L.R.B. 1967)

PIPE FITTERS LOCAL NO. 120, PLUMBERS 997
Pipe Fitters Local No. 120, United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, AFL-CIO and Mechanical Contractors
Association of Cleveland, Inc.
Pipe Fitters Local No. 120, United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States apd
Canada, AFL-CIO and The Trane Co.
Pipe Fitters Local No. 120 , United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, AFL-CIO and Worthington Corpora-
tion. Cases 8-CD-53, 8-CD-54, 8-CD-55,
8-CD-62, 8-CD-69, and 8-CD-70
December 27, 1967
DECISION AND ORDER QUASHING
NOTICE OF HEARING
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed on May 4 and 26, 1965, by
Mechanical Contractors Association of Cleveland,
Inc. (herein called MCA), on September 23, 1965,
by Trane Company (herein called Trane), and on
September 28, 1965, by Worthington Corporation
(herein called Worthington), alleging violations of
Section 8(b)(4)(D) by Respondent Pipe Fitters
Local No. 120, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada,
AFL-CIO. On January 28, 1966, the Regional
Director for Region 8 consolidated these cases and
thereafter a duly scheduled hearing was held before
Hearing Officer John P. Falcone on various dates
from April 4 until September 22, 1966. Local
Union No. 409, International Union United Au-
tomobile, Aerospace, and Agricultural Implement
Workers of America, AFL-CIO (herein called
UAW), and La Crosse Trane Lodge No. 21, Inter-
national Association of Machinists, AFL-CIO
(referred to as IAM), were permitted to intervene
as parties in interest to the proceeding. All parties'
appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing on
the issues. Thereafter, the Respondent, MCA,2
Trane,3 UAW, and IAM filed briefs which the Na-
tional Labor Relations Board has duly considered.
The United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada , AFL-CIO, and
the United Steelworkers of America, AFL-CIO,
were granted leave to file amicus briefs.4 The Board
has also duly considered these briefs.
The Board has reviewed the rulings of the Hear-
ing Officer made at the hearing and finds that they
are free from prejudicial error . The rulings are
hereby affirmed.
Upon the entire record , the Board makes the fol-
lowing findings:
1. The parties stipulated and we find that:
(a) Mechanical Contractors Association of
Cleveland , Inc., is an organization of employers en-
gaged in the installation and servicing of heating and
air-conditioning equipment in the Cleveland, Ohio,
area , and, on behalf of its employer-members en-
gages in collective bargaining with the Respondent.
Among these members are The Spohn Corporation,
Wrightco , Inc., and Avery Engineering Co.
(b) Spohn , Wrightco , and Avery are Ohio cor-
porations with their principal offices and places of
business in Cleveland , Ohio , where each is engaged
in business as a mechanical contractor in the build-
ing and construction industry and in particular, the
installation of plumbing, heating, and air-condition-
ing equipment. In the operation of their businesses
each contractor annually purchases and receives at
its place of business in Cleveland, Ohio, directly
from points located outside the State of Ohio
products valued in excess of $50,000.
(c) Trane , a Wisconsin corporation , is a multi-
state enterprise engaged in the manufacture of air-
conditioning , heating , and ventilating equipment,
and maintains its principal office and place of busi-
ness at La Crosse , Wisconsin . Annually, in the
course and conduct of its business , it ships from its
place of business in Wisconsin , directly to points
located outside the State of Wisconsin , products
valued in excess of $50,000.
(d) Worthington , a New Jersey corporation, is a
multistate enterprise engaged in the manufacutre of
heating and air-conditioning equipment at Milwau-
kee, Wisconsin , through an operating division
known as Mueller Climatrol Division . Annually, in
the course and conduct of its operation , Worthing-
ton receives at its Milwaukee , Wisconsin, plant,
directly from points located outside the State of
Wisconsin , products valued in excess of $50,000.
The parties concede and we find that:
(e) Spohn , Wrightco , Trane , Avery, and
Worthington are employers engaged in commerce
' Although they entered an appearance, representatives of UAW and
IAM were not present during most sessions of the hearing.
p MCA members Avery Engineering Co. and Worthington Corporation
joined in this brief.
a On November 7, 1966, Trane filed a motion to reopen the record or
in the alternative to reopen the hearing. On November 11, 1966, the
Respondent filed a memorandum in opposition In view of our disposition
in this case, Trane's motion is hereby denied.
4 Subsequent to filing its brief, the Pipe Fitters International Union filed
a motion for leave to file an affidavit as an exhibit to its brief. In view of
our disposition of this case , this motion is hereby denied.
168 NLRB No. 139
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 2(6) and (7) of the
Act.
2. The parties concede, and we find, that the
Respondent, Local Union No. 409, UAW, and La
Crosse Trane Lodge No. 21, IAM, are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
3. The dispute
A. The Facts
The Respondent represents pipefitters employed
by employer-members of MCA, with which it has
had a longstanding collective-bargaining relation-
ship. Since 1958 the agreements have contained a
"fabrication clause" providing, in effect, that piping
2 inches and under shall be fabricated on the
jobsite.
On December 30, 1963, the Cleveland Board of
Education awarded a mechanical contract to
Wrightco for work on the Kennedy High School.
The specifications required ventilating units with
"cross-over" piping to be installed and tested at the
factory. On July 28, 1964, Spohn entered into a
contract with the Board of Education covering units
with similar specifications, for the Glenville High
School. These mechanical contractors had the
choice of three or four manufacturing companies
approved to supply the heating and cooling units.
Each contracted with Trane. In September 1964,
pursuant to these contracts and the required
procedure under the specifications, Trane sent
"submittal data" to both contractors for their ac-
ceptance and the approval of the Board of Educa-
tion, showing both "cross-over" and "end-pocket"
piping as factory installed. The Board of Eduction
approved the "submittal data" in October 1964.
Early in 1964 Avery was awarded a mechanical
contract by Paugh and Brown, a general contractor,
calling for the installation of fan coil units at a
Howard Johnson motel. Avery purchased these
"units" from Worthington, with factory fabricated
"end-pocket" piping. The "cross-over" and "end-
pocket" piping involved in each of these contracts
was less than 2 inches in diameter and, therefore,
fell within the literal language of the aforementioned
"fabrication clause" of Respondent's contract with
MCA.
Late in January 1965, Joseph Dingow, Respond-
ent's business representative, visited Charles
Wright, an officer of Wrightco, to verify information
received by Dingow that Trane was to furnish
"prepiped" units. Dingow warned Wright that
Respondent would assert its rights under the con-
tract and demand that any piping 2 inches and under
would have to be installed at the jobsite by mem-
bers of Respondent and that, if any of the piping in
the units was installed by Trane, Respondent's
members would not connect the units. Late in
February, Dingow told William Spohn that installa-
tion of the Trane units would violate the contract.
At a meeting on March 3, 1965, the parties agreed
that the "accessible end-pocket" piping would be
assembled on the job, and that the rest of the piping,
i.e., "cross-over," would be factory assembled. The
next day the MCA attempted to rescind this March
3 agreement, stating that it had insufficient informa-
tion at the time it entered into the agreement. The
Respondent refused, and the parties met again on
March 31, 1965, and April 7, 1965, without resolv-
ing the issue. The completely prepiped units
designated for the two school projects arrived in
due course and were installed upon arrival by
Respondent's pipefitters without interference.
The record shows that on April 26, 1965, the first
factory piped fan coil units arrived at the motel job.
According to President J. E. Wilhelm of Avery,
Dingow told him on May 3, 1965, that there was a
problem at the motel job because the fan coil units
had arrived at the jobsite prepiped, and the Re-
spondent could not connect them. Avery's superin-
tendent, Guy, testified that on May 19 and 25,
1965, Mr. Bernow, job foreman and member
of Respondent, refused to install the units. On
May 27, 1965, however, the pipefitters began
installing the units without ado.
During April 1965, counsel for MCA asked
Trane's General Counsel whether the IAM con-
sidered the work in dispute to be within its jurisdic-
tion. Later that month MCA's counsel telephoned
the IAM's General Counsel and inquired whether
IAM was claiming the unit ventilator piping work
for its members employed by Trane. The IAM gave
an affirmative response even though it had never,
the the past, objected to Trane's unit ventilators
leaving the factory without "end-pocket" piping
factory installed. -On May 4, MCA filed charges
against the Respondent alleging violations of Sec-
tion 8(b)(4)(D) relating to the dispute over the
Trane units. On May 11, an IAM attorney directed
a letter to Trane for the attention of MCA's counsel
advising that IAM was claiming the work. After a
further inquiry by MCA's counsel, IAM's General
Counsel reaffirmed IAM's claim to the work by
letter dated August 19, 1965. On September 23,
1965, after installation of the units had be-
gun, Trane filed 8(b)(4)(D) charges against the
Respondent.
Concurrently, on May 19, 1965, Richard
Signorelli, Worthington's manager of manufactur-
ing, informed UAW representative, Raymond
Majeras, that the Respondent was refusing to install
the Worthington fan coil units. Although, as in the
Trane situation, UAW had never objected to fan
coil units being sold without having the "end-
pocket" piping factory installed, Majeras this time
proceeded to claim the work in dispute. Majeras
then notified the UAW's International office. On
May 26, MCA filed 8(b)(4)(D) charges against the
Respondent relating to the alleged dispute over the
PIPE FITTERS LOCAL NO. 120, PLUMBERS
Worthington units. On August 20, 1965, the Inter-
national reconfirmed UAW's so-called work claim
by letter directed to MCA's counsel. On September
28, 1965, after Respondent's members began in-
stalling the fan coil units, Worthington filed
8(b)(4)(D) charges against Respondent.
B. The Contentions of the Parties
The Respondent argues that there is no real
dispute between itself and the IAM and UAW, as
contemplated by Section 8(b)(4)(D); that the only
evidence of a jurisdictional dispute was "set up" by
the MCA and therefore is a "fiction"; and that, in
any event, the disputed work should be awarded to
its members on the basis of (1) training, skills, and
experience; (2) its contract with the MCA; and (3)
the past practice in the industry.
Trane, Worthington, IAM, and UAW contend
that (1) the employees represented by IAM are
competent to do the "end-pocket" piping work at
the respective factories; (2) that it is more efficient
and economical to perform the disputed work in the
factory; and (3) that past practice should not be
considered because of recent technological and en-
gineering developments in the heat and air-condi-
tioning industry. The MCA contends that the con-
tracts of the Board of Education and Paugh &
Brown require the disputed work to be performed
in the factory, and therefore its members could not
assign the work to the Respondent's members.
5 See Highway Truckdrivers and Helpers, Local 107 (Safeway Stores,
Inc ), 134 NLRB 1320, 1323.
s Compare the Board' s disposition of the related issues arising under
Section 8(b)(4)(ii)(B) in the companion cases, Pipefitters Local No. 120,
999
C. The Applicability of the Statute
We are not convinced that there was any real
competition between unions or groups of em-
ployees for work assignments in this case. The real
dispute here , in its origin and in its development,
was between Respondent and MCA's members in
an attempt to secure compliance with the terms of
their collective-bargaining agreement providing for
the fabrication or installation of certain piping on
the jobsite. No other union was claiming this work.
So far as this record discloses, the IAM and UAW
had never voiced objections when the ventilating
and fan coil units were supplied to customers
without factory-installed piping, and there is no
evidence that any factory worker would lose his job
or suffer a reduction in earnings if the manufac-
turers continued to supply some of the units without
the piping. The purported assertions of the IAM
and the UAW after inquiry by MCA's counsel and
by Worthington's manager were wholly devoid of
meaningful demand. To regard this as a jurisdic-
tional dispute in the statutory sense is to distort the
Congressional intent,5 for the employer-members
of MCA were not truly caught between rival claims
contemplated by Section 8(b)(4)(D) of the Act. We
conclude, therefore, that these cases do not present
a dispute within the meaning of Section 10(k) and
that Respondent did not violate Section 8(b)(4)(D)
of the Act.6
ORDER
IT IS HEREBY ORDERED that the notice of hearing
issued in these cases be, and it hereby is, quashed.
United Association of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO (Mechanical Contractors' As-
sociation of Cleveland, Inc), 168 NLRB 990.