Pipe Fitters Local No. 522

National Labor Relations Board - Board Decisions

Jul 22, 1968

172 N.L.R.B. 1254 (N.L.R.B. 1968)

1254 DECISIONS OF NATIONAL
Pipe Fitters Local Union No. 522, United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada , AFL-CIO, and its Agent,
George French and American Synthetic Rubber
Corp . and American Rubber and Chemical Co.
and Kentucky Lodge No . 681, District 27 of the
International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 9-CD-1 18
July 22, 1968
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed by American Synthetic
Rubber Corp. and American Rubber and Chemical
Co., herein called the Employer , alleging that Pipe
Fitters Local Union No. 522, United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada , AFL-CIO, and its agent , George French,
herein called Respondent or Pipe Fitters , had vio-
lated Section 8(b)(4)(D ) of the Act. The charge al-
leges , in substance , that Respondent threatened,
coerced , and restrained the Employer and others
with an object of forcing or requiring the Employer
to assign particular work to employees represented
by Respondent rather than to employees
represented by District 27, and its Local Kentucky
Lodge No. 681, International Association of
Machinists and Aerospace Workers , AFL-CIO,
herein called Machinists . Pursuant to notice, a
hearing was held before Hearing Officer William C.
Mittendorf, on November 28 and 29 and December
8, 1967, and February 27 and 28, 1968. 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
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.
The Board has reviewed the rulings of the Hear-
ing Officer made at the hearing and finds that they
are free from prejudicial error They are hereby af-
firmed . The brief filed by the Employer has been
duly considered.
Upon the entire record in the case, the Board
makes the following findings:
LABOR RELATIONS BOARD
1. THE BUSINESS OF THE EMPLOYER
American Synthetic Rubber Corp. and American
Rubber and Chemical Co. are Kentucky cor-
porations engaged in the manufacture of synthetic
rubber and related products at their plants in
Louisville, Kentucky. During the calendar year
1967, the Employer received goods valued at more
than $50,000, and made sales to points outside
Kentucky which exceeded $50,000. In addition, the
Employer has done defense work in excess of
$500,000 for the United States Air Force. We find
that the Employer is engaged in commerce within
the meaning of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction herein.
11 THE LABOR ORGANIZATIONS INVOLVED
All parties stipulated, and we find, that Respon-
dent and the Machinists are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Basic Facts
The disputed work consists of the sharpening of
hoes, the welding of new handles thereon, and the
alteration of hoes, including cutting and welding to
adapt them to special uses. The Pipe Fitters and
Machinists both claim this work and have
represented separate units of employees since their
certifications in 1951. Both unions currently have
collective-bargaining contracts with the Employer.
At the plants in Louisville, Kentucky, the Em-
ployer manufactures synthetic rubber which is
processed in large vats or tanks. When the product
is poured off some residue remains in the tanks,
and the hoes or scrapers in dispute are used
manually to remove this residue. The tools used are
made of stainless steel or black iron. The hoes or
scrapers need sharpening, replacement of handles,
alteration by cutting them down for special clean-
ing uses , and occasional straightening. The stainless
steel scrapers are fabricated by machinists in the
Employer's maintenance shop and there is no
dispute concerning them. It is conceded that all
work on stainless steel is the work of machinists,
who are represented by Machinists.
The black iron tools are purchased from various
suppliers, primarily Belknap Hardware. The record
shows that the Employer' s assignment of work on
the black iron hoes or scrapers to the pipefitters,
principally the pipefitter welder, dates back to 195 1
when there were few such tools in use. The number
of such tools has consistently increased, particularly
172 NLRB No. 125
PIPE FITTERS LOCAL NO. 522
after the Employer opened a second plant in 1961.
However, there was always some infringement by
the machinists on the work assigned to the pipefit-
ters. Sometime in the early 1950's, Elbert Sanders,
the pipefitter welder who was assigned the work,
developed a technique of welding pipe handles on
scraper blades when the wooden handles broke. At
that time, Sanders was also assigned the work of al-
teration of scrapers by use of an acetylene cutting
torch.
On October 10, 1964, the Machinists steward
filed a grievance contesting the work Sanders was
performing on the scrapers. The grievance was de-
nied by the Employer, who suggested that the
Machinists and Pipe Fitters reach an understanding
about the assignment of work on the hoes.
Representatives of the two labor organizations met
and their agreement of December 4, 1964, was
reduced to writing in the following words:
At this meeting it was agreed that the fabrica-
tion of tools, such as scrapers, would be as-
signed as follows: If it is stainless steel or sheet
metal it will be assigned to the machinist craft.
If it is to be forged, including hoes, it will be
assigned to the pipe fitter craft.
The Employer's maintenance supervisor testified
that the parties explained to him that the work on
the black iron hoes was to be assigned as previ-
ously, that is, to the pipefitters. The memorandum
of understanding was posted and the Employer
made assignments of work on the black iron hoes to
the pipefitters. After the memorandum of un-
derstanding was reached and posted, no problems
arose until October 1966 when the Pipe Fitters
filed a grievance about machinists sharpening iron
hoes on a grinder in the process area. The Em-
ployer then removed the grinder from the process
area.
After the grinder was removed, the Machinists
filed a grievance claiming the work of sharpening
the hoes. This grievance led to an arbitration
proceeding between the Employer and the Machin-
ists . The Pipe Fitters advised the other parties that
it would not participate in the arbitration
proceedings. The resulting arbitration opinion and
award of September 12, 1967, relying on the
Machinists contract and the memorandum of un-
derstanding, gave the work to members of the
Machinists. The Employer complied with the award
and has assigned the work in dispute to the machin-
ists since that time.
Since the arbitration award, both the Pipe Fitters
and Machinists have continued to claim the work in
dispute. A letter dated September 21, 1967,
received by the Employer threatened a strike by the
1255
Pipe Fitters if the Company assigned the disputed
work to the machinists.
B. Contentions of the Parties
The Machinists contends that the work in dispute
belongs to employees represented by it under the
terms of its collective-bargaining agreement as well
as under the memorandum of understanding. Addi-
tionally, the Machinists relies on the arbitrator's
award.
The Pipe Fitters and the Employer contend that
the work in dispute has been assigned to, and per-
formed by, employees represented by the Pipe Fit-
ters since 1951 and that such work is properly the
work of the pipefitters based on this long practice.
Both the Employer and Respondent point out that
all parties agreed that the memorandum of un-
derstanding awarded the work to the Pipe Fitters
and the pipefitters performed the work subsequent
to that agreement for nearly 2 years. In addition,
the Pipe Fitters relies on the language of its con-
tract with the Employer. With respect to the ar-
bitration proceeding, the Pipe Fitters notes that it
did not participate in that proceeding, and
distinctly advised it would not be bound by the
terms of the arbitration award.
C. Applicability of the Statute
Section 10(k) of the Act empowers the Board to
hear and determine a dispute out of which an
8(b)(4)(D) charge has arisen, unless the parties to
such dispute submit to the Board satisfactory
evidence that they have adjusted, or agreed upon
methods for the voluntary adjustment of, the
dispute. Before the Board proceeds with a deter-
mination of dispute, however, it is required to find
that there is a reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated.
The record shows that pursuant to the arbitra-
tor's award the Employer assigned the disputed
work to employees represented by the Machinists,
whereupon Respondent claimed that its members
were entitled to the work. The Respondent
thereafter, by letter, threatened to strike the Em-
ployer should the Employer assign the disputed
work to the machinists. It is clear that the object of
this threat was to force the Employer to change
work assignments, an object prohibited by Section
8(b)(4)(D). We find, therefore, on the entire
record, that there is reasonable cause to believe
that a violation of Section 8(b)(4)(D) has oc-
curred, and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Merits of the Dispute
Section 10 ( k) of the Act requires the Board to
make an affirmative award of disputed work after
giving consideration of various relevant factors, and
the Board has held that its determination in a ju-
risdictional dispute case is an act of judgment based
upon common sense and experience and a balanc-
ing of all relevant factors.
Certain factors usually considered by the Board
in making jurisdictional awards are not present in
this proceeding . Thus, the record shows there has
been no jurisdictional award by the AFL-CIO or
other joint boards and there is no evidence of in-
dustry or area practice . Also, it appears that mem-
bers of Respondent and the Machinists both possess
the requisite skills to perform the work in dispute.
Although both unions are certified , neither certifi-
cation by its terms covers employees performing
this disputed work . Certain other factors usually
considered by the Board in these jurisdictional
dispute cases provide little assistance in determin-
ing the instant dispute . For instance, neither con-
tract here involved unequivocally or "clearly and
unambiguously" supports the claims of the compet-
ing unions, and each contract can be read as sup-
porting the claim of that respective union. An ar-
bitrator duly designated by the two parties to the
Machinists contract to resolve disputes arising
under it has interpreted that contract as supporting
the Machinists claim . However , the Pipe Fitters was
not a party to that arbitration , and it does not ap-
pear that the arbitrator considered the Pipe Fitters'
contract.
There is one factor, however , which we find per-
suasive in making a determination in this case-
company practice . It has been the practice of the
Employer , since it began operations in 1951, to as-
sign pipefitters to perform the disputed work. Only
since the arbitrator 's award has the Employer ac-
tually assigned to machinists the disputed work on
black iron hoes . At the hearing , the Employer
urged the Board to consider its previous assignment
as the one to be followed . Obviously, the Employer
is satisfied with the results achieved by the assign-
ment.
As noted , a memorandum of understanding was
reached and signed by representatives of the two
disputing unions . Thereafter , in conformity with the
Employer's assignment , the disputed work was per-
formed by pipefitters without objection by the
Machinists for nearly 2 years. Contrary to the ar-
bitrator's award, to which the Pipe Fitters was not a
party, we do not find that either the Machinists
contract or the memorandum of understanding is
clear and unambiguous in assigning the disputed
work to the machinists. Rather, we find the
memorandum of understanding , as written and as
explained by the Employer at the instant hearing,
favors the Pipe Fitters. In this regard, it should be
noted that the Employer's witness testified that
representatives of both unions advised him, after
reaching their agreement, that the particular work
in dispute was to be the work of the pipefitters. Sig-
nificantly , the Machinists witnesses did not con-
trovert this testimony.
In view of the foregoing, particularly the Em-
ployer 's consistent past assignment , and the fact
that the pipefitters are sufficiently skilled and have
performed the work in dispute to the satisfaction of
the Employer, who desires them on the job, we
shall determine the jurisdictional dispute herein by
awarding the disputed work to the pipefitters. Our
determination is limited to the particular con-
troversy which gave rise to this proceeding. In mak-
ing this determination , the Board is assigning the
disputed work to pipefitters who are represented by
Respondent, but not to that union or its members.
Accordingly, we find that Respondent was entitled
to demand the work in dispute, since such work
should properly be assigned to employees who are
represented by the Pipe Fitters.
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
case, the National Labor Relations Board hereby
makes the following Determination of Dispute.
Pipefitters engaged as maintenance shop pipefit-
ters and pipefitter welders and currently
represented by Pipe Fitters Local Union No. 522,
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, are entitled
to the assignment of the work on iron hoes consist-
ing of sharpening of hoes, the welding of new han-
dles thereon, and the alteration of hoes by cutting
them down to adapt them to special cleaning uses.