Plumbers and Steamfitters Local 342

National Labor Relations Board - Board Decisions

Sep 17, 1976

225 N.L.R.B. 1364 (N.L.R.B. 1976)

1364 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 Conduit Fabri-
cators, 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 Conduit Fabri-
cators Inc. and C. Overaa & Co., Party to the Con-
tract . Cases 20-CC- 1518 and 20-CE- 109
September 17, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On August 7, 1975,' Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the Respondent and Charg-
ing Party 2 filed exceptions and supporting briefs,
and the General Counsel filed a brief to answer the
Respondent's exceptions and to support the Decision
of the Administrative Law Judge.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified below, and to adopt his recommended Or-
der.
We agree with the conclusion of the Administra-
tive Law Judge that the Respondent (herein Steam-
fitters) violated Section 8(e) and 8(b)(4)(ii)(B) of the
Act by causing C. Overaa & Co. (herein Overaa) em-
ployees to refuse to install certain pipe, which was
prefabricated by Conduit, at the Moraga Pumping
Plant project. However, we do not agree with the
Administrative Law Judge that the "right-to-control"
test is dispositive of the present issues, and therefore
i All dates herein are 1974 unless otherwise specified
2 By letter dated October 8, 1975, the Charging Party withdrew its excep-
tions to the Administrative Law Judge's Decision Also, by letter dated
February 13, 1976, the Charging Party requested that the charge be with-
drawn and all action on the case canceled The General Counsel and the
Respondent filed separate oppositions to this request In our judgment it
would not effectuate the purposes of the Act to permit the charges to be
withdrawn at this late stage of the proceeding, nor could further action on
the case be properly canceled when Respondent's exceptions are still before
us Accordingly, the Charging Party's request that the charges he withdrawn
and that all action on the case be canceled is hereby denied
we rely on other grounds for finding the violations of
the Act.
The Administrative Law Judge concluded that the
right-to-control test was applicable because Overaa
had entered into a subcontract with Conduit for the
fabrication of the pipe, thereby relinquishing its right
to control the work involved. The Administrative
Law Judge reasoned that by virtue of the subcontract
Overaa was powerless to accede to Respondent's
work claims; therefore, Overaa was a neutral em-
ployer and Respondent's pressure against Overaa
was secondary. We find that the Administrative Law
Judge has misconstrued the right-to-control doctrine
and, moreover, that this doctrine is inapposite to de-
ciding the issues at hand.'
Overaa, pressured by the Steamfitters refusal to in-
stall the pipe, is not a neutral employer within the
rubric of a right-to-control test because it possessed
the authority to assign the fabrication of the pipe in
question as it saw fit. In other words, Overaa was not
bound by its contract with East Bay Municipal Utili-
ties District (herein East Bay MUD), which financed
the Moraga project, to assign the work to a specific
subcontractor. Thus, Overaa's own act of subcon-
tracting the fabrication work at issue did not divest
Overaa of its control over the work; in fact, subcon-
tracting the fabrication work at issue was a direct
reflection of Overaa's right to control this work.4
Rather, we find that the Steamfitters did not have
a valid claim to the work involved. Before we discuss
the basis for this finding that the Steamfitters could
not fairly claim the work, a review of the background
events will be helpful. The Moraga Pumping Plant
project is typical of many such plants commissioned
by the East Bay MUD, which operates in the San
Francisco, California, area. Overaa, one of several
general contractors in the San Francisco Bay area,
was the successful bidder on the Moraga project and
was awarded the contract to construct the plant in
accordance with MUD specifications. Overaa and
the Steamfitters were signatory to a collective-bar-
gaining agreement, extended by an interim agree-
ment, which is identical to the basic labor agreement
covering the craftwork of the United Association of
Plumbers and Pipefitters (U.A.), with which the
Steamfitters is affiliated. Overaa employed three
members of the United Association for onsite pipe-
fitting work.'
J We note that the General Counsel also argued that the right-to-control
test was at issue For the same reasons discussed above, we reject this con-
tention of the General Counsel
Cf Local Union No 438, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO (George Koch Sons, Inc), 201 NLRB 59 (1973), enfd 490 F 2d
323 (C A 4, 1973)
5 When the Moraga project began, Local 159 of the Plumebers, another
United Association affiliate had jurisdiction over the work However, as of
225 NLRB No. 195
PLUMBERS & STEAMFITTERS LOCAL 342
Overaa was required by MUD specifications to in-
stall cement-lined and lead-paint-coated pipe, as well
as vinyl-lined pump barrels, in the Moraga Plant.'
According to the specifications, the pipe also had to
be hydrostatically tested and stress-relieved upon the
completion of certain stages of the fabrication.' Ove-
raa subcontracted the fabrication of the pipe to Con-
duit Fabricators, Inc., which is one of several fabri-
cators in the San Francisco area engaged in this type
of work. Conduit has a collective-bargaining agree-
ment with Teamsters Local 490; thus, none of its em-
ployees is represented by the Steamfitters or any
other affiliate of the United Association. Conduit de-
livered the completed pipe to the construction site in
February 1974.
It is undisputed that on July 15, the Steamfitters
refused to handle and install the pipe from Conduit.'
Three days later, the Steamfitters business manager
directed the onsite employees to handle the pipe, but
he informed Overaa that the Steamfitters would file a
grievance. While the record does not indicate that
the Steamfitters made a clear demand for the fabri-
cation work, the Administrative Law Judge found
that at the time of the hearing it claimed the work of
cutting and welding the pipe.'
It is well settled that Section 8(e) does not pro-
scribe contact provisions which accomplish primary
activity. Thus, it is not a violation of the Act for a
contractual provision to preserve bargaining unit
work from diminution as a result of technological
changes 10 or to reclaim for the unit previously per-
formed work or work which is otherwise "fairly
claimable." 11 We are guided by the Board's decision
July 15, 1974, Local 342 of the Steamfitters acquired jurisdiction over the
project Charles Burgin , the onsite foreman , belonged to the Steamfitters,
the two other onsite employees who were hired for pipe installation were
members of Local 159
6 The pipe ranged from 17 inches to 72 inches in diameter with a mini-
mum 1/2-inch thickness , individual lengths of the pipe weighed as much as
15 tons
7 The Administrative Law Judge has described the fabrication process of
pipe in his Decision While the term " fabrication" was used as a term of art
by the Steamfitters to mean the cutting and welding of the steel pipe, the
record indicates that this is but one stage in the process of fabricating-or
manufacturing-the type of pipe at issue
8 Previously , on or about June 4 , the business agent for Local 159 in-
formed Overaa 's job superintendent that Conduit's pipe was "unsuitable"
for handling Apparently Overaa delayed the pipe 's installation for several
weeks , but by July 15 Overaa faced shutting down the entire project if the
pi;e could not be installed
When the grievance procedure was initiated , the Steamfitters asserted
that Overaa "purchased fabrications to be installed by our members
without the Union label ," and therefore Overaa had violated contractual
provisions covering the manner in which pipe is to be fabricated
10 National Woodwork, supra
1
Retail Clerks Union Local 770, chartered by Retail Clerks International
Association (Hughes Markets , Inc, and Saba Prescription Pharmacy), 218
NLRB 680 ( 1975), Local Union No 282, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(D Fortunato, Inc), 197 NLRB 673 ( 1972), Meat and Highway Drivers,
Dockmen , Helpers and Miscellaneous Truck Terminal Employees, Local Union
No 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
1365
in Sheet Metal Workers Union, Local 162, Sheet Met-
al Workers' International Association , AFL-CIO (As-
sociated Pipe and Fittings Manufacturers), 12 which
adopted decision of the Administrative Law Judge
finding that contractual provisions proscribing the
prefabrication of certain items, including round
pipes, violated Section 8(e) of the Act. There, the Ad-
ministrative Law Judge properly questioned whether
it was the customary and traditional practice to pur-
chase such pipes or fabricate them onsite. He further
determined that
The issue before us is not whether contractors
are capable of fabricating round pipe or fittings,
or whether facilities exist whereby this can be
done on a reasonably efficient basis with ad-
quate machinery and at a relatively small in-
crease in cost. The legality of the contract re-
strictions turns not on the capacities of the unit
employers or employees to do the work, but on
whether or not in fact work of this nature has
customarily and traditionally been done by such
unit employees. These cases establish that only
where it is shown that the unit employees have
done such fabrication with sufficient regularity
to support a conclusion that such fabrication is
industry custom and tradition, can it be found
that a union is entitled to claim or recapture
such work by use of contract restrictions. [207
NLRB at 749.] t3
The problem raised by the Steamfitters claim is
that obviously its members are capable of performing
the work, with proper tools and equipment. Thus, the
and Helpers of America [Wilson & Co ] v N L R B, 335 F 2d 709 (C A D C,
1964)
12207 NLRB 741 (1973)
13 See also Sheet Metal Workers Union, Local 216, Sheet Metal Workers'
international Association (Associated Pipe and Fitting Manufacturers), 172
NLRB 35 (1968) (Board adopted decision of Administrative Law Judge
which stated that "whether employees have customarily and traditionally
performed such work means that employers in the common course of
business regularly assign such tasks to its employees "), Local Union No 26
of Sheet Metal Workers' International Association , AFL-CIO (Reno Employ-
ers Council), 168 NLRB 893 (1967) (Board adopted decision of Administra-
tive Law Judge which found that "while unit employees may have sufficient
skills to fabricate [ at least some of the items ], it is significant that they have
never been called upon to do so except on rare and sporadic occasions, and
then only to meet unusual and emergency situations Prohibitive costs ren-
der any other mode of operation impractical "), and Southern California
Pipe Trades District Council No 16 of the United Association and Plumbing-
Heating and Piping Employers Council of Southern California (Seefore Corpo-
ration), 193 NLRB 796 ( 1971) (Board adopted decision of Administrative
Law Judge which found that certain clauses banning prefabricated items
violated Sec 8(e) of the Act , after noting, inter alias , that the members of the
employers council regularly purchased the prefabricated item, and that the
employers had not manufactured or fabricated the items in their shops or at
the jobsite In addition , the Administrative Law Judge reasoned that "we
are not treating merely the installation of pipe or its fabrication ," but that
"the fabrication of the pipe is but one step in the preparation of the total
product ") Cf Local 636, United Association of Journeyman and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO (Mechanical Contractors Association of Detroit, Inc ), 189 NLRB
661 (1971)
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ability of the employees to perform such work, which
involves the very expertise possessed by this craft, is
not at issue . The crucial question is whether or not
the Steamfitters claim seeks to preserve "traditionally
performed" work or seeks to acquire "fairly claim-
able" work.
The substantial evidence on the record as a whole
discloses that the fabrication of cement-lined and
coated pipe, including the cutting and the welding, is
subcontracted to companies specializing in fabrica-
tion of such pipes because general contractors do not
have, as a matter of course, the capability or capacity
for onsite fabrication of pipe, of which the cutting
and welding is one stage .14 Moreover, the record evi-
dence on the whole indicates that neither Overaa nor
other contractors engaged in similar work regularly
assign such fabrication work to their own employ-
ees.15
The Administrative Law Judge found that "there
has not been a single instance, involving a MUD
project comparable to the present [Moraga plant],
when any phase of the fabrication has occurred on
site." Jack Freethy, general manager of the Elmer J.
Freethy Company, testified that his company is a
general contractor involved primarily in the con-
struction of water sewage and treatment facilities for
various municipal and utilities districts. They do
most of their work for East Bay MUD and have con-
structed plants similar to the one at Moraga. Freethy
testified that the company never fabricates its own
pipes but obtains such pipe from fabricating compa-
nies such as Conduit or Ameron. Freethy Company,
through its employers' council, Plumbing, Heating
and Cooling Contractors Association of Northern
California, has an agreement with the Steamfitters.
William Gaffney, manager of Underground Con-
struction, also a utility general contractor, testified
that when they utilize lined pipe, such as that re-
quired by MUD at Moraga, they never fabricate the
14 Overaa does not have a fabrication shop One witness for the Steamfit-
ters speculated that it could be possible to erect a shop for fabrication, but
this testimony revealed that Overaa would incur exorbitant costs and exten-
sive time delays to do so, and that it was highly uncertain if such a shop
could be erected in view of the limited available space at the Moraga site
15 Counsel for the Steamfitters has cited the fact that one general contrac-
tor, Scott Co , has assigned the cutting and welding of the pipe to his onsite
employees Our review of the record reveals that this is not an accurate
depiction of the situation The record indicates that Ameron Co , a major
fabricating company which, like Conduit, is a Teamsters shop. originally
received an order from Scott Co for a completely fabricated pipe package,
similar to the one Conduit produces for Overaa However, after the dispute
arose in the present case , Scott Co , faced with similar demands from anoth-
er United Association affiliate, agreed to have the onsite employees do some
welding Thus , the arrangement is for Ameron Co to fabricate (cut) the pipe
and the various fittings , and tack weld the fittings onto the pipe , while onsite
employees will finish the welding The pipe will then be shipped back to
Ameron for lining and coating We note that this arrangement was made
after the instant dispute arose and that it also does not meet the Steamfitters
demands
pipe but use the services of Conduit or Ameron.
Gaffney also averred that their common practice for
facilities commissioned by MUD is to purchase from
Ameron a completed package, which includes the
necessary cuttings and weldings. It was also noted
that Underground Construction has a collective-bar-
gaining agreement with the Steamfitters for pipe in-
stallation.
Charles H. Burgin, who testified on behalf of the
Steamfitters and was once employed by Overaa as
the pipefitters general foreman at Moraga, related his
previous experience at the C. Norman Peterson
Company, a general utility contractor which has its
own extensive fabrication shop. Although Burgin tes-
tified to the capabilities of the Peterson shop to fabri-
cate such pipe, Burgin conceded that the Peterson
shop utilized a coal tar epoxy lining for its pipes,
which necessitates handling different from that re-
quired by the mortar-lined pipe at Moraga. Burgin
also acknowledged that there were certain fabrica-
tions, such as crotchplates (reinforced areas ), which
Peterson did not have the capacity to produce. In
addition, the projects cited by Burgin as examples of
onsite fabrication did not involve the same type of
mortar-lined and coated pipe used at Moraga. For
-example, the pipe at the Contra Costa project had a
coal tar epoxy lining, was not stress-relieved, and was
not constructed for MUD; and the pipe used for the
Sacramento Sewage Treatment Plant was already
lined when it arrived at the Peterson shop. It did not
have to be stress-relieved, and it was much smaller in
size than the pipe used at the Moraga Plant . Burgin
also testified that on numerous occasions Peterson
contracted with a company, such as Ameron, for a
completely fabricated pipe package. He agreed that
many factors, such as the diameter of the pipe, the
type of lining, and stress-relieving, would affect the
decision whether or not to fabricate a pipe onsite.
Burgin finally agreed, after considering his own expe-
rience, that more pipe is purchased as a completely
fabricated package than is fabricated in a general
contractor's shop.
Charles Gosney, a witness for the Steamfitters who
has worked for both Overaa and Peterson, testified
that he was not familiar with any contractor who
totally fabricated the type of cement-lined and coat-
ed pipe used at the Moraga Plant . Gosney further
testified that it was his experience that when a job
utilizes cement-lined and coated pipe the pipe is pur-
chased already fabricated, which involved all the ne-
cesary cuttings, fixtures, major welding, and any
stress-relieving or hydrostatic testing.
The manager of employee relations for Ameron
Co., Edward R. Abram, testified that Ameron Co., a
fabricating company similar to Conduit, generally
PLUMBERS & STEAMFITTERS LOCAL 342
supplies to most of the contractors in the Bay Area a
completely "engineered" (fabricated) package, espe-
cially when the pipe is to be lined and coated.16
Upon our review of the record on the whole, we
conclude that the work claimed by the Steamfitters,
even assuming it made a narrow and specific claim to
cutting and welding the pipe, has not been tradi-
tionally or historically performed by the unit employ-
ees. Thus, the situation presented here is quite differ-
ent from the one in National Woodwork, supra, where
the union's sole objective was the protection of tradi-
tional unit work. Here, even if it be assumed that the
contractual provisions relied on by the Respondent
had a work-preservation purpose and that the unit
employees were fully capable of performing the work
in issue , the fact remains that this work has tradi-
tionally been performed by employees outside the
unit and not by the unit employees themselves. In the
circumstances presented here, Respondent's refusal
to install the pipe prefabricated by Conduit must re-
alistically be viewed as either an attempt to acquire
work which had not previously been performed by
the unit employees or as an attempt to force Overaa
to subcontract the work to a fabricator whose em-
ployees are represented by locals affiliated with the
Respondent. Both objectives are clearly secondary in
effect and unlawful under our Act because they ex-
ceed the legitimate interests of the unit employees
vis-a-vis their own employer and therefore must be
viewed as being tactically calculated to satisfy union
objectives elsewhere."
In its brief to the Board, the Steamfitters apparent-
ly argues that the relevant unit has been misper-
ceived throughout the proceedings, and that "the
unit , for the purposes of the work-preservation provi-
sions of the agreement, is comprised of all employers
signatory to the Master Agreement. Dixie Mining
Co., 179 NLRB 479." While the Steamfitters did not
specifically indicate what is the scope of that unit, its
brief asserted that "Overaa became bound to assign
the fabrication work on fabrications which it in-
stalled to its own employees; that Overaa had the
right to fabricate the necessary piping at the fob site,
16
The record contained additional testimony about the practices of other
contractors and fabricators in the area , but we find that it is not especially
relevant For example , America Bridge , a fabricator whose employees are
represented by the Boilermakers, stress -relieved at the jobsite due to the
massiveness of the pipe which was also neither lined nor coated , so that a
stress-relieving process (heat-coils ) could be used which was different from
that required for Moraga Albay Construction Company is involved in oil
refinery work and it did not fabricate any coated or lined pipe M F Lau-
ritzer , a mechanical contractor , also constructs oil refineries, and does not
use cement -lined and coated pipe H K Ferguson , also a contractor for the
construction of refineries , does not utilize the same pipes required at Mora-
ga
7 International Longshoremen 's Association , AFL-CIO (Consolidated Ex-
press, Inc), 221 NLRB 956 (1975), International Longshoremen's Association,
Local 1248, AFL-CIO (US Naval Supply Center), 195 NLRB 273 (1972)
1367
in its own shop," or in a shop with comparable terms
and conditions of employment. We note that the
Steamfitters contentions as to the relevant unit are
based on the work at issue. The Board, with court
approval, has considered whether the contractual
clauses, or their maintenance are "germane to the
economic integrity of the principal work unit" and
seek "to protect and preserve the work and standards
[the union] has bargained for." 18
Our examination of the collective-bargaining
agreement between the Steamfitters and Overaa re-
veals that jobsite work is the target of the subcon-
tracting and work-preservation provisions. (See art.
II, sec. 11; art. III, sec. 15 and 16, of the collective-
bargaining agreement.) Second, as discussed above,
the record discloses that the work claimed by the
Steamfitters is not work which is traditionally or cus-
tomarily performed at the jobsite. Since we have al-
ready determined that the subcontracting provision
only applied to work which is to be performed at the
jobsite, and such work is not involved, the Steamfit-
ters right to protect its work standards is not at stake.
Thus, the Steamfitters unit claims result in either ac-
quiring work which has not been customarily per-
formed by the unit on the job or in the contractors'
shop, or effectively making the clauses at issue func-
tion as union signatory clauses. Both results are pro-
scribed by Section 8(e) of the Act. Therefore, we are
not dissuaded from our conclusion that the Steamfit-
ters actions were calculated to satisfy union objec-
tives elsewhere. Accordingly, in agreement with the
Administrative Law Judge, we find that the Respon-
dent Steamfitters has violated Section 8(e) of the Act.
We also find that the Steamfitters violated Section
8(b)(4)(n)(B) of the Act, because an objective of its
conduct was that Overaa cease doing business with
Conduit or any other similarly situated subcontrac-
tor. Overaa could only have met the Steamfitters de-
mands by terminating its contract with Conduit,
changing its subcontracting policies, or causing Con-
duit to change its practices. Where the Steamfitters
did not act to protect a lawful primary objective,
such conduct is proscribed by the Act.19
In view of our findings herein that the Steamfitters
violated Section 8(e) and 8(b)(4)(ii)(B) of the Act, the
remedy remains the same as found in the Decision of
the Administrative Law Judge. Accordingly, we shall
adopt the recommended Order of the Administrative
Law Judge.
1 8 Orange Belt District Council o f Painters No 48. AFL-CIO, et a! [Cal-
houn Drywall Co ] v NLRB , 328 F 2d 534, 538 (C A D C, 1964)
19
N L R B v Local 825, international Union of Operating Engineers,
AFL-CIO [Burns and Roe, Inc ], 400 U S 297 (1971)
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent , Plumbers and Steamfit-
ters Local Union 342, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL-CIO, its officers , agents and representatives,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This con-
solidated matter was heard before me in San Francisco,
California, on February 25, 26, and 28 and April 29, 1975
The charge in Case 20-CC-1518 was filed on July 19, 1974,
and amended August 19, by Conduit Fabricators, Inc.
(herein called Conduit). The charge in Case 20-CE-109
was filed by Conduit on July 24, 1974. A consolidated
complaint issued against Plumbers and Steamfitters Local
Union 342, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO (herein called Re-
spondent) on August 23
Respondent thereafter entered into an agreement in at-
tempted settlement of the issues raised by the complaint,
which agreement was approved by the Regional Director
for Region 20 on October 10. Conduit did not join in that
agreement, instead appealing the Regional Director's ap-
proval of it The appeal was sustained by the General
Counsel; and, on December 19, the Regional Director
withdrew approval of the settlement agreement and issued
a new consolidated complaint. This complaint was amend-
ed January 20, 1975, and alleges violations by Respondent
of Section 8(b)(4)(n)(B) and 8(e) of the National Labor
Relations Act
The parties were given opportunity at the hearing to in-
troduce relevant evidence, examine and cross-examine wit-
nesses, and argue orally. Briefs were filed for the General
Counsel and Respondent.
1. ISSUES
The issues are whether Respondent's conduct vis-a-vis C.
Overaa & Co. (herein called Overaa) during the construc-
tion in 1974 of the Moraga Pumping Plant (herein called
the Project), as described below, violated Section
8(b)(4)(n)(B) and 8(e) of the Act.
II. JURISDICTION
Overaa, the general contractor on the Project, is a Cali-
fornia corporation, headquartered in Richmond, engaged
as a contractor in the construction industry It annually
purchases and receives in California directly from outside
the State materials of a value exceeding $50,000.
Conduit Fabricators, Inc., a subcontractor on the Proj-
ect, is a California corporation engaged in Fairfield in the
manufacture of pipe. It annually sells directly to customers
outside California products of a value exceeding $50,000.
Overaa and Conduit both are persons and employers en-
gaged in and affecting commerce within the meaning of
Sections 2(1), (2), (6), and (7), and 8(b)(4)(B) and 8(e) of
the Act.
111. LABOR ORGANIZATION
Respondent is a labor organization within Section 2(5)
of the Act
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The East Bay Municipal Utilities District (herein called
MUD) for many years has been a principal in the construc-
tion of reservoirs, water and sewage treatment plants, wa-
ter pumping plants, and related facilities in Alameda and
Contra Costa Counties, California. The Project was one
such undertaking. MUD contracted to have it built by Ov-
eraa for about $2 million Overaa in turn subcontracted the
fabrication of certain of the Project's pipe systems to Con-
duit The value of this contract, entered into in September
1973, was $275,000. Conduit accomplished the fabrication
away from the Project, delivering the finished product to
the site in February 1974
Overaa at all relevant times was signatory to a labor
agreement with Respondent concerning work within the
craft lines of the United Association of Plumbers and Pipe
Fitters (herein called UA) Jurisdiction over such work on
the Project was vested in UA Local 159 until July 15, 1974,
when it was ceded to Respondent. Unaffected by this
change was Overaa's three-man complement of onsite em-
ployees subject to the above agreement: Charles Burgin, a
member of Respondent and pipefitter foreman with power
to hire and fire, a welder named John Dunn, who belonged
to UA Local 159; and an apprentice belonging to UA Lo-
cal 159
None of Conduit's employees was represented by Re-
spondent or any other affiliate of UA. Those participating
in the fabrication in question were covered by an agree-
ment between Conduit and Teamsters Local 490, the wage
levels of which were below those in Overaa's agreement
with Respondent. Included in Overaa's contract with Con-
duit was a clause that the work was to be done in "confor-
mance to Union regulation & acceptable for Union trade
installation." Clifford McCormick, Conduit's president,
credibly testified that the discussion between him and Jerry
Overaa, Overaa's general manager, regarding this clause,
during their negotiation of the subcontract, had to do with
whether Conduit's employees had some kind of union rep-
resentation.
Paragraph 8 of Overaa's agreement with Respondent
stated.
PLUMBERS & STEAMFITTERS LOCAL 342
8. The terms and conditions of this Agreement insofar
as they affect the Employer shall apply equally to any
subcontractor under the control of, or working under
contract with, such Employer on any work covered by
this Agreement which is to be performed at the site of
construction, alteration, building or repair of any
building, or other work and said subcontractor with
respect to such work shall be considered the same as
the Employer covered hereby.
Paragraph 13 provided that "pipe formation 2 inches in
diameter and under shall be fabricated and assembled on
job site"; and paragraph 15 stated:
15. Fabrication at Job Site or In Shop. To secure fab-
rication work for employees working under this
Agreement in the principal work unit at the job site
and in order to protect wages and working conditions
of such employees in the principal work unit at the Job
site, the Employer may fabricate at job site or in a
shop under the following terms and conditions-
(1) Pipe formations over 2 inches in diameter, at the
option of the Employer, may be fabricated on the
job site or in a shop.
(2) Piping formations requiring heat or other special
treatment or the use of special tools and equipment
may be fabricated on the job site or in the shop.
(3) All pipe bends over 2 inches in diameter may be
made up on the job site or in the shop.
(4) All piping and assembling of panel boards shall be
done on the job site or in the shop.
Paragraph 16 stated-
16. When the word "shop" is used in this Section it
shall be defined as a pipe fabricating shop where terms
and conditions of employment for Journeymen
Plumbers, Pipefitter-Steamfitters and their Appren-
tices performing such shop fabrication compare favor-
ably with the terms and conditions of employment of
the employees covered by this Agreement who would
have performed the fabrication at job site if the Em-
ployer exercised his option to have it done at job site.
The General Counsel does not contend that these work-
preservation provisions, so-called, were unlawful on their
face, but only that Respondent's manner of attempted en-
forcement was improper.
The Project became ready for installation of the pipe
fabricated by Conduit on or about June 20, 1974. On or
about June 4, however, Dennis Gifford, a business agent
for UA Local 159, had told Foreman Burgin not to handle
the pipe because it did not have a UA label. Gifford also
told Overaa's Job superintendent, Howard Verrinder, that
Conduit pipe was "unsuitable" for handling by his union
Overaa accordingly "worked around" the pipe for sever-
al weeks, but by July 15-the date Respondent assumed
jurisdiction from UA Local 159-the stage had been
reached where this was no longer tenable. A total Job shut-
down was imminent were pipe installation not to begin On
July 15, Doyle Williams, Respondent's business manager,
told Burgin that Respondent's position concerning the pipe
coincided with UA Local 159's, that it should not be han-
1369
dled. Burgin passed the word to Dunn and the apprentice,
and the three refused to touch the pipe. This necessitated
the termination of Dunn on July 15 for want of alternative
tasks.
On July 17, the situation becoming increasingly desper-
ate, Verrinder dispatched Burgin to Respondent's hall in
quest of some kind of dispensation. Williams being away
Burgin spoke with Robert Beeson, an official of Respon-
dent, who said that Williams as yet had not "cleared" the
handling of the pipe. Later on the 17th, Verrinder reached
Williams by telephone Williams told him that the pipe
"was not in conformity with the contract," but that he
would authorize the members to handle it and seek redress
through the grievance procedure. Williams testified that,
by "not in conformity," he meant that those engaged in the
fabrication of the pipe had not worked under wages, hours,
and working conditions customary to members of Respon-
dent.
Williams told Burgin early on July 18 that it would be all
right to handle the pipe. Installation began July 18, being
completed without further delay in January 1975.
Respondent initiated grievance proceedings against Ove-
raa on October 8, 1974, but had done nothing to move the
proceedings along at the time of the present hearing. Wil-
liams, in his October 8 grievance letter to Overaa, stated:
I have been advised that on your Lafayette [Mora-
gal Pumping Station job, your company has pur-
chased fabrications to be installed by our members
without the union label.
Article III, Paragraphs 15 and 16 of the Agreement
clearly indicate the procedure to be followed in fabri-
cations It is obvious that you are in violation of Arti-
cle III.
Under Article 7 of the Joint Conference Board pro-
cedures, we hereby notify you that we are filing a
grievance in accordance with same.
Conduit was not a party to the grievance proceeding.
The pipe in question ranged in diameter from about 17
to 72 inches Individual lengths weighted up to nearly 30,
000 pounds Overaa was totally without facilities and
equipment to perform the necessary fabrication, either at
the site or in its shop
The fabrication process used by Conduit consisted of
these steps: (a) Obtaining from a supplier millrun lengths
of steel, pipe of the requisite thicknesses and diameters, as
well as assorted attachments-flanges, reducers, couplings,
bolts, reinforcing pads, etc.-to be incorporated in the fin-
ished product by welding, (b) cutting the pipe to size and
shape at Conduit's shop in Vallejo, California, then per-
forming the various welding tasks involved in making
joints and affixing attachments-that is, converting the
raw components into a unified system; (c) hydrostatically
testing for watertightness of welds, (d) stress-relieving; i.e.,
placing the pipe in ovens to cure distortions of molecular
alignment caused by uneven application of heat during
welding. Conduit itself did not do this, instead having it
done at a Kaiser facility 12 miles away; (e) upon return to
the Conduit shop, sandblasting to remove oven scale; (f)
lining the interior of the system with cement, followed by 7
days of curing in a controlled environment, in the case of
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pump barrels, which were components in the system, the
lining was vinyl rather than cement; and (g) sandblasting
the exterior of the pipe to remove rust created by curing,
then applying an exterior coat of red lead paint.
Respondent, although apparently never defining its con-
cern to Overaa with such selectivity, took the position dur-
ing the hearing and in its brief that it is interested only in
those aspects of the fabrication process embodied in item
(b), above; namely cutting and welding. Its members un-
questionably are capable of onsite performance of those
tasks, given proper equipment and facilities. Erection and
outfitting of an onsite facility enabling this with pipe of the
magnitude in question, however, would entail an outlay of
several thousand dollars. Further, while hydrostatic testing,
stress-relieving , and coating and lining are not beyond on-
site capability, quality, economy, and overall efficiency are
better served when those processes are done in permanent
facilities designed for the purpose. The performance of
these processes offsite, coupled with cutting and welding
onsite, would translate into multiple handling, delays, and
extra cost.
Perhaps reflective of the considerations just raised, the
overwhelming weight of tradition in the area favors the
practice observed by Overaa in the present case More par-
ticularly, there has not been a single instance, involving a
MUD project comparable to the present, when any phase
of fabrication has occurred onsite. Thus, Elmer J. Freethy
Co., a competitor of Overaa's, has constructed over 90 fa-
cilities for MUD since 1946, in every one subcontracting
the piping system for offsite fabrication. The main subcon-
tractor has been Ameron, Inc., whose employees have been
Teamsters-represented. Those few instances cited in the
record in which onsite fabrication occurred generally are
distinguishable from that in question because either the
pipe was materially smaller than the present, or the specifi-
cations did not call for stress-relieving and/or coating and
lining.'
B. Analysis
As mentioned earlier, the General Counsel does not con-
tend that the agreement between Respondent and Overaa
was violative of Section 8(e) on its face. Rather, the Gener-
al Counsel argues that Respondent's interpretation of the
agreement's "work preservation" provisions, in combina-
tion with its methods to induce Overaa's adoption of that
interpretation, violated Section 8(b)(4)(ii)(B) and 8(e). Re-
spondent counters that it was only seeking work "fairly
claimable" by it, therefore, that its conduct was permissi-
ble.
The threshold question is whether Respondent at any
time "threatened, coerced, or restrained" Overaa as con-
templated by clause (u) of Section 8(b)(4). If it did not, the
complaint is devoid of merit without consideration of pri-
mary-secondary and work-preservation issues. Southern
California Pipe Trades District Council No 16 of the United
Association. etc. (Associated General Contractors of Califor-
1 After emergence of the present dispute, in an effort to accommodate the
wishes of a Bay Area UA-affiliate, Scott Co agreed to onsite cutting and
welding, linings and coatings then to be applied offsite by a subcontractor
ma, Inc.), 207 NLRB 698 (1973). It is concluded that Re-
spondent did engage in Section 8(b)(4)(u) conduct when,
on July 15 Business Manager Williams caused Overaa's
employees to handle the disputed pipe, adhering to that
approach until July 18, when he authorized Burgin to work
with the pipe. Local 370, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO (Baughan Plumb-
ing and Heating Company, Incorporated), 157 NLRB 20
(1966).2
The General Counsel makes the further argument that
Respondent engaged in 8(b)(4)(u) conduct by initiating
grievance action against Overaa concerning the disputed
pipe. It is concluded, however, that Respondent did this in
good faith to enforce a colorable contract right and not to
restrain employees or employers in the exercise of statutory
rights. This argument therefore is rejected for much the
same policy reasons underlying Board holdings that resort
to civil litigation is not an unfair labor practice. E.g., Retail
Clerks Union Local 770, Chartered by Retail Clerks Interna-
tional Association, AFL-CIO (Hughes Markets, Inc, and
Saba Prescription Pharmacy), 218 NLRB 680 (1975); United
Aircraft Corporation, 192 NLRB 382 (1971). See also AGC
of California, supra, involving resort to a grievance proce-
dure 3 That the Board perhaps would not defer to the re-
sults of the grievance action, and indeed might find the
results to comprise 8(b)(4)(ii) pressure,4 does not impair the
legality of the action being invoked. See Associated General
Contractors of California, Inc. v. N.L.R.B., 514 F.2d 433,
438-439 (C.A. 9, 1975).
The next question is whether Respondent's imposition of
8(b)(4)(fi) pressure on Overaa was secondary rather than
primary in nature. It is concluded that it was secondary,
and thus proscribed by Section 8(b)(4)(B). The basis for
this conclusion, simply, is that Overaa was powerless to
accede to Respondent's wishes concerning fabrication of
the pipe-to have it done under UA-sanctioned working
conditions-without rejecting the fruits of its subcontract
with Conduit and having the work done anew Implicit in
Respondent's 8(b)(4)(ii) conduct, therefore, was a "cease
doing business" object within subsection (b) of Section
8(b)(4). N.L.R.B. v. Local 825, International Union of Oper-
ating Engineers, AFL-CIO [Burns and Roe, Inc], 400 U.S.
297, 304-305 (1971).
From the time the subcontract was made, for that mat-
ter, Overaa ceased having the power to satisfy
Respondent's as yet unvoiced concerns, short of reneging
on its deal with Conduit, or, alternatively, persuading Con-
duit to abrogate its existing commitment to the Teamsters
in favor of UA-prescribed conditions. That is, only Con-
2 Respondent's brief, by implication, concedes the commission of
8(b)(4)(ii) conduct The brief states "[Tlhe Union contends that the single
issue upon which lawfulness or unlawfulness of respondent 's actions turns is
whether or not the clauses in question, and the actions taken by the Union,
were in furtherance of preserving and protecting `fairly claimable' work "
I Vacated 514 F 2d 433 (C A 9, 1975) The concern of the Ninth Circuit
seemingly centered on a work stoppage, the accompanied use of the griev-
ance procedure , and a monetary assessment against the neutral as a result of
its use Neither element accompanied Respondent's institution of the pres-
ent grievance
Cf International Union of Operating Engineers, Local Union No 12 (Acco
Construction Equipment), 204 NLRB 742 (1973)
PLUMBERS & STEAM FITTERS LOCAL 342
dust had the power to meet Respondent 's wishes absent a
cessation by Overaa of its relationship with Conduit. Ap-
plying the Board 's "right-of-control " test , 8(b)(4)(u) pres-
sures on Overaa after entry into the subcontract conse-
quently were secondary . International Brotherhood of
Electrical Workers Local Union No 501 (Atlas Construction
Company), 216 NLRB 417 (1975); Local Union No. 438,
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO (George Koch Sons, Inc), 201 NLRB 59
(1973). See generally , National Woodwork Manufacturers
Association, et al. v. N.L R.B., 386 U.S . 612 (1967).5
It is arguable in this connection that Overaa willingly
forfeited its power over the situation by entering into the
subcontract , and so should not be entitled to neutral status.
As stated in Atlas Construction Co., supra, an employer can-
not be considered neutral to a dispute when its re linquish-
ment of control
. .. was based on some affirmative conduct which the
employer could reasonably conclude would conflict
with his collective-bargaining obligations, coupled
with the absence of any demand for such conduct by
an independent third party .
The circumstances of the present case, however, do not
support this argument. The record, far from suggesting that
Overaa's delegation of control to Conduit was gratuitously
done with a foreseeable tendency to interfere with Overaa's
obligations to Respondent, leaves no doubt that the delega-
tion was prompted by valid considerations of technical and
economic feasibility, reinforced by long-established past
practice. The record, moreover, provides scant basis for
Overaa to have had advance suspicions that its actions
would offend Respondent.'
In summary, Respondent violated Section 8(b)(4)(ii)(B)
by causing Overaa's employees to refrain from handling
pipe fabricated by Conduit. Respondent to the contrary, it
does no violence to this conclusion that the cutting and
welding done by Conduit's employees on the disputed pipe
may have been work "fairly claimable" by Respondent.
George Koch Sons, Inc., supra.
Whether Respondent's conduct in addition violated Sec-
tion 8(e), however, does turn on the issue of fair claimabili-
ty. The test of fair claimability is whether work of the na-
ture in question historically has been done by unit
employees with a regularity amounting to custom and tra-
dition in the industry. Capability of unit employees to do
the work is irrelevant . Sheet Metal Workers Union, Local
162, Sheet Metal Worker's International Association, AFL-
CIO (Associated Pipe and Fittings Manufacturers), 207
5 This is not to ignore those decisions of some circuit courts rejecting the
right-of-control test, a recent example of which is Enterprise Assocation of
Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice Machine and
General Pipefitters of New York and Vicinity, Plumbers Local Union 638 [Aus-
tin Co, Inc ] v N L R B, 521 F 2d 885 (C A D C, 1975) Board law, not that
of the circuit courts, is controlling at this juncture E g , Bricklayers, Masons
and Plasterers' Union Local No / (Barr Floors, Inc), 209 NLRB 820, In I
(1974)
6 Overaa obviously thought that Conduit's employees being union-repre-
sented would preclude any problems in this regard, as witness the discussion
between Jerry Overaa and Conduit's McCormick over the clause in the
subcontract that work be "acceptable for Union trade installation "
1371
NLRB 741 (1973). The requisite custom and tradition lack-
ing, the inference follows that the Union's claim was not
intended to recapture work for the benefit of unit employ-
ees, which is permissible under Section 8(e), but instead to
expand work opportunities for members generally. Retail
Clerks Union Local 770, Chartered by Retail Clerks Interna-
tional Association, AFL-CIO (Hughes Markets, Inc., and
Saba Prescription Pharmacy), 218 NLRB 680 (1975).
Tradition in the present case overwhelmingly favors con-
tracting out for offsite fabrication. The General Counsel
thus has the better of the 8(e) argument. Respondent's ef-
forts to impose an interpretation of the agreement preclud-
ing Overaa's subcontracting to Conduit accordingly violat-
ed Section 8(e) as well as 8(b)(4)(B).
CONCLUSIONS OF LAW
1. By causing Overaa's employees to refrain from han-
dling pipe fabricated by Conduit, as found herein , Respon-
dent engaged in unfair labor practices within Section
8(b)(4)(ii)(B) and 8(e) of the Act.
2. These unfair labor practices affect commerce within
Section 2(6) and (7) of the Act.
3. Respondent did not otherwise violate the Act as al-
leged.
Upon the basis of the foregoing findings of fact and con-
clusions of law and the entire record in this proceeding, I
make the following recommended-
ORDER'
Respondent Steamfitters ' Local Union 342, United As-
sociation of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada,
AFL-CIO, its officers, agents , and representatives, shall:
1. Cease and desist from:
(a) Threatening , coercing , and restraining C. Overaa &
Co. with an object of forcing or requiring Overaa to cease
doing business with Conduit Fabricators, Inc.
(b) Maintaining, enforcing , or giving effect to the work-
preservation provisions of its agreement with C. Overaa &
Co. in the manner herein found unlawful.
2. Take the following affirmative action:
(a) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix ." 8 Copies of
said notice, on forms provided by the Regional Director
for Region 20, after being duly signed by Respondent's
7 All outstanding motions inconsistent with this recommended Order
hereby are denied In the event no exceptions are filed as provided by Sec
102 46 of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, and recommended Order herein shall, as provided
in Sec 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes
8 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative , shall be posted by Respondent immediately
upon receipt thereof , and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, including
all places where notices to members are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered , defaced, or covered
by any other material.
(b) Furnish the Regional Director for Region 20 with
signed copies of the aforesaid notice for posting by C Ove-
raa & Co., should it be willing , at all places where notices
to its employees are customarily posted.
(c) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order , what steps
Respondent has taken to comply herewith
IT IS FURTHER ORDERED that the complaint be dismissed as
to all allegations not found to be violations herein.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in San Francisco , California , on Febru-
ary 25, 26 , and 28 , and April 29 , 1975, in which we partici-
pated and had a chance to g've evidence , resulted in a
decision that we had committed certain unfair labor prac-
tices in violation of Section 8(b)(4)(ii)(B) and 8(e) of the
National Labor Relations Act, and this notice is posted
pursuant to that decision.
WE WILL NOT threaten, coerce , or restrain C. Overaa
& Co. with an object of forcing or requiring Overaa to
cease doing business with Conduit Fabricators, Inc.
WE WILL NOT maintain , enforce, or give effect to the
work-preservation provisions of our agreement with C.
Overaa & Co. in the manner found by the National
Labor Relations Board to violate Section 8(e).
STEAMFITTERS' LOCAL UNION 342, UNITED
ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF
THE PLUMBING AND PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL-CIO