United Assn. of Plumbers, Local No. 481

National Labor Relations Board - Board Decisions

Mar 17, 1967

163 N.L.R.B. 454 (N.L.R.B. 1967)

454 DECISIONS OF NATIONAL LABOR
an employee 's car ; or in any other manner restraining or
coercing employees of the Charging Parties in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at the offices and meeting halls of the
Respondent Union copies of the attached notice marked
"Appendix."' Copies of said notice, to be furnished by the
Regional Director for Region 24, after being duly signed by
the Respondent 's representative , shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Mail signed copies of the notice to the Regional
Director for Region 24 for posting, the Charging Parties
willing, at all locations where notices to their employees
are customarily posted.
(c) Notify the Regional Director for Region 24, in
writing, within 20 days of the receipt of this Decision, what
steps the Respondent has taken to comply herewith.2
I In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice . In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
I In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify the
Regional Director for Region 24; in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith."
APPENDIX
NOTICE To ALL MEMBERS OF CONGRESO DE UNIONES
INDUSTRIALES DE PUERTO RICO, INC. AND To
EMPLOYEES OF GAYLEY RICO COMPANY AND BAYAMON
TRANSPORT SERVICE
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT restrain or coerce employees of
Gayley Rico Company and Bayamon Transport
Service in the exercise of employee's rights
guaranteed in Section 7 of the Act (including the right
to refrain from joining or assisting our union) by
assaulting and threatening to commit bodily harm to,
and damage to the property of, supervisors,
employees, and others; picketing with clubs and
sticks, mass picketing and blocking tactics;
physically preventing supervisors , employees, and
others from entering the struck premises; setting fire
to the truck of a transport service attempting to
continue service during the strike; threatening and
coercing the father of an employee in order to prevent
the employee from working during the strike;
threatening plant guards with bodily harm; breaking
the windshield of an employee's car.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of the
RELATIONS BOARD
rights guaranteed by Section 7 of the National Labor
Relations Act.
CONGRESO DE UNIONES
INDUSTRIALES DE PUERTO
Rico, INC.
(Labor Organization)
(Representative ) (Title)
GAYLEY RICO COMPANY
(Employer)
(Representative ) (Title)
BAYAMON TRANSPORT
SERVICE
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If members and employees have any question
concerning this notice or compliance with its provisions,
they may communicate directly with the Board's Regional
Office, P.O. Box 11007, Fernandez Juncos Station,
Santurce, Puerto Rico 00910, Telephone 724-7171,
Extension 123.
United Association of Journeymen and
Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and
Canada , Local No. 481 , AFL-CIO and
Northwest Natural Gas Company and
International Chemical Workers Union,
Local No. 133. Case 36-CD-38.
March 17,1967
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Northwest Natural Gas Company,
herein called the Company, alleging that United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, Local No. 481, AFL-CIO, herein
called the Plumbers, violated Section 8(b)(4)(D) of
the Act. A duly scheduled hearing was held before
Patrick H. Walker, Hearing Officer, on
September 26, 1966. All parties appearing were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing upon the issues. The rulings of the Hearing
Officer made at the hearing are free from prejudicial
163 NLRB No. 56
UNITED ASSN. OF PLUMBERS, LOCAL NO. 481
error and are hereby affirmed. Thereafter, the
Company filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE COMPANY
The Company is an Oregon corporation engaged
in the distribution and sale of natural gas in the
States of Oregon and Washington. During the past
fiscal year, it purchased in excess of $1 million worth
of natural gas which originated from points outside
the States of Oregon and Washington. During the
same period, its sales exceeded $1 million. The
Company operates as a public utility under the
supervision of the public regulatory bodies of
Oregon and Washington. We find that the Company
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 herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The Plumbers, and International Chemical
Workers Union, Local 133, herein called the
Chemical Workers, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The Notice of Hearing specifies the work in
dispute as the installation of gas piping from street
gas mains to meter locations in the Eugene, Oregon,
area and surrounding counties. The disputed work
which gave rise to this proceeding, however, is the
installation of a service line from an existing main to
a building on a single commercial customer's
premises in the city of Eugene, including the setting
of two meters. The record shows that after the job
has been measured and planned, the laying of a
service, as such work is called, consists primarily of
excavating a trench, welding up the pipe, making a
connection to the main, tapping out of the main
i The main connection is effected by welding a special service
"T" onto the main which carries live gas By the use of special
tapping equipment, a drilling bar is inserted through the valve
incorporated in the "T" and the main is drilled out Afterwards,
the boring bar is pulled out and the connection is plugged Before
the service line is connected and live gas is introduced therein, it
must be tested to make certain that it is tight and then purged of
air to avoid a flammable mixture of air and gas The Company's
distribution manager, Paul Howe, testified that the Company is
obligated to make these final tests and the tap on the live gas He
also testified that the welder could burn into the main if he
penetrated too deeply when welding the "T" onto the main
2 Where the installation of service lines entails the laying of
455
connection, and then purging the service line and
backfilling the trench.' This work is normally
performed by the Company's distribution crews.2
The Company's distribution department, which
has about 475 employees, is concerned with the
distribution of gas from the point of supply to the
customer's premises.3 In addition to installing
service lines, the department's crews, consisting of
from two to four or more employees in each crew,
install new mains, maintain and repair existing
pipelines, including the servicing of breaks and
leaks, and handle other emergencies. The collective-
bargaining agreements between the Company and
the Chemical Workers require mutual discussion
prior to the subcontracting of any work normally
performed by the unit employees and provide that no
employee in the unit shall be laid off as a result of
subcontracting.
B. Evidence of Conduct Violative of Section
8(b)(4)(D)
On July 25, 1966, the Company dispatched a four-
man crew to lay a 2-inch service line from a main
located in the street to the premises of the Cascade
Manor Convalescent Home, a new building under
construction, and to set two gas meters therein. The
crew arrived on the jobsite about 7:45 a.m. and
began trenching the ditch and welding the pipe for
the service line. The Company's district
superintendent, Alan James VanHorn, testified that
at approximately 9 o'clock that morning, he received
a telephone call from a Mr. Taylor, superintendent of
construction of the convalescent home. Taylor said
that a man who identified himself as Mr.
Carmichael, business agent of the Plumbers Union,
protested the Company's laying the line into the
convalescent home. VanHorn then asked to speak to
Carmichael. When Carmichael came on the phone,
VanHorn asked him what the problem was.
Carmichael replied that the pipeline which the
Company was laying was on the property; that the
Plumbers had a contract with the builder to lay all of
the piping on the property and that they were going
to lay all the piping on the property; and that his
crews were needed on the job more than the
Company's crews. Carmichael then stated, "unless
we [the Company] got our crews off of the job, he
would pull all of his crews off of the job." VanHorn
thereafter referred to the Astoria dispute and the
new mains, classified as new construction, the Company
sometimes uses subcontractors who employ members of sister
locals of the Plumbers Although it appears from the record that
the installation of service lines from existing mains is also
classified as new construction, the record does not show that the
Company has used subcontractors for this type of work
3 The distribution department is one of five operating
departments which together employ approximately 600
employees Since 1934, the Company has had a contractual
bargaining relationship with the Chemical Workers and its
predecessor covering all employees in the various operating
departments, including those engaged in the disputed work, in a
companywide unit
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision in the Company ' s favor therein.4
Carmichael responded , in effect , that he was not
concerned with what the Board had decided in
Astoria, and then said that unless the Company got
its crews off the job , "he was going to shut his part of
the job down ...." Whereupon , the Company
placed barricades around the unfinished work and
removed its crew from the job.5
C. Contentions of the Parties
Relying primarily on our decision in Northwest
Natural Gas Company, supra , the Company and the
Chemical Workers contend that the Company's
employees are entitled to the disputed work. The
Company also takes the position that the Board's
determination in this proceeding and the scope of its
assignment of the work should extend to the
installation of all gas piping throughout its service
area in Oregon and Washington . It appears from the
record that the Plumbers ' claim for the disputed
work rests solely on its agreement with the plumbing
subcontractor which purportedly covered all the
piping work on the premises.
Plumbers was duly served with a copy of the
charge in which it was specifically designated as the
Respondent , and was also duly served in advance of
the hearing with, and acknowledged receipt of, a
notice of hearing and an order rescheduling hearing,
but it neither appeared at the hearing nor filed a
brief with the Board . We find that where, as here, all
parties to the dispute are served with notice of
hearing and afforded opportunity to participate and
to introduce evidence , the purposes intended in
hearings under Section 10(k) are adequately served.6
Accordingly , we shall proceed to make a
determination on the basis of the uncontradicted
evidence on the record before us.
D. Applicability of the Statute
In a proceeding under Section 10(k) of the Act, the
Board is only required to find that there is
reasonable cause to believe that Section 8(b)(4)(D)
has been violated before making a determination of
the dispute out of which the alleged unfair labor
practices have arisen.' As shown above, there is
testimony that the Plumbers claimed the work in
dispute for its members and threatened a st-ike at
the jobsite if the Company did not accede to its
demand. We find, therefore, that there is reasonable
cause to believe that the Plumbers threatened to
strike its employer with an object of forcing the
Company to reassign the disputed work.
Accordingly, the dispute is properly before the
Board for determination.
IV. MERITS OF THE DISPUTE
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various relevant factors,
and the Board has held that its determination in
jurisdictional dispute cases is an act of judgment
based upon common sense and experience in
balancing such factors.'
As noted, the Company has a long history of
bargaining agreements with the Chemical Workers
covering the disputed work; in the past it has
assigned such work to its own employees; and the
Company desires to continue to use its employees
for such work. The Plumbers has no bargaining
agreements with the Company and while the
Plumbers has agreements with firms to whom the
Company has subcontracted work, the record does
not show that the Company has ever used
subcontractors for the work involved in this
proceeding. There are approximately 20 utility
companies in the United States and Canada which
use their own employees, who are represented by
other locals of the Chemical Workers in
employerwide bargaining units, to perform work of
the type in dispute. It also appears that only the
Company's employees can perform the critical and
potentially dangerous tasks of tapping the mains and
purging the service lines before the introduction of
live gas. Thus, the Company's employees possess
superior skills in the performance of many of the
tasks involved in the 'completion of the disputed
work. Because the Company's crews in any event
must be dispatched to every service installation site,
it is more efficient and economical for the Company
to use its own crews to dr, the entire job. Moreover,
by using its employees in the performance of this
work, a substantial amount of which exists
throughout the year, the Company is able to
maintain a stable, highly trained work force which is
necessary for the servicing of breaks and leaks and
for other emergencies, as well as for the
maintenance and repair of existing pipelines.
Accordingly, on the basis of the long bargaining
history between the Company and the Chemical
Workers covering the employees now engaged in
service installations, the skills of the Company's
employees in performi tg the work, and the
Company's need and desire for a stable, highly
trained work force to perform an efficient,
economical, and safe operation, we shall determine
' United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada, Local No 573, AFL-CIO, et al (Northwest Natural Gas
Company), 156 NLRB 1070
5 On August 1, the crew returned and completed the job
without incident
6 Teamsters Local Union No. 5, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Ind. (Hart-McCowan Foundation Co, Inc.),147
NLRB 1216, 1219
° International Union of Operating Engineers , Local 66,
AFL-CIO (Frank P Badolato & Son), 135 NLRB 1392
8International Association of Machinists, Lodge No 174.3,
AFL-CIO (J A Jones Construction Company), 135 NLRB 1402,
1410
AMERICAN GUILD OF VARIETY ARTISTS
the jurisdictional dispute by deciding that employees
represented by the Chemical Workers are entitled to
the work in dispute.9 Since there is a strong
probability that similar disputes involving
Respondent Union may occur in the future, we hold
that the determination in this case applies not only to
the job in which the dispute arose but to all similar
work done or to be done in Eugene , Oregon, and
surrounding counties , within the jurisdictional area
of the Plumbers, by Northwest Natural Gas
Company.
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
Dispute:
1. Employees of Northwest Natural Gas
Company, who are represented by International
Chemical Workers Union, Local No. 133, are
entitled to perform all service line installation work
from existing mains to customers' premises in
Eugene, Oregon, and surrounding counties, within
the territorial jurisdiction of United Association of
Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, Local No. 481, AFL-CIO.
2. United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, Local
No. 481, AFL-CIO, is not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force
or require the Company to assign the above work to
employees who are represented by it.
3. Within 10 days from the date of this Decision
and Determination, the Plumbers shall notify the
Officer-in-Charge for Region 36, in writing, whether
or not it will refrain from forcing or requiring the
Company, by means proscribed by Section 8(b)(4)(D)
of the Act, to assign the work in dispute in a manner
inconsistent with the above determination.
9 Although the Company urges the Board to extend its
determination to the installation of all gas piping throughout its
service area in Oregon and Washington , we limit our
determination and award to the work actually in dispute in this
proceeding , namely, the installation of service lines from existing
mains
457
American Guild of Variety Artists, AFL-CIO
and Al Fast and Fontainebleau Hotel
Corporation , d/b/a Fontainebleau Hotel
Americana Hotel , Morris Lansburgh , et al.,
d/b/a Deauville Hotel , Forty-five , Twenty-
five, Inc., d/b/a Eden Roc Hotel , Carillon
Hotel , Parties to the Contract ' (Minimum
Basic Agreement ) and Gold Coast Theatrical
Agency, Inc., Jerry Grant Agency, Parties to
the Contract (AGVA Franchise Agreement)
American Guild of Variety Artists, AFL-CIO
and Clayton I. Hart and Al Fast
American Guild of Variety Artists, AFL-CIO
and Al Fast . Cases 12-CB-647, 12-CA-2393-1
and 2393-2, and 12-CA-3327.
March 20,1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On August 18, 1966, Trial Examiner Leo F.
Lightner issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. In
addition, the Trial Examiner found that Respondent
had not engaged in other unfair labor practices
alleged and recommended that the complaints be
dismissed as to those allegations. Thereafter, the
General Counsel filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.
Respondent filed cross-exceptions to the Trial
Examiner's Decision together with a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
i Pursuant to stipulation of the parties and the Trial Examiner's
recommendation thereon, we have stricken from the caption four
other employers (Golden Triangle Restaurant, Inc , Tampa
International Inn, Inc , Hawaiian Village Restaurant, and The
Outrigger Inn of St Petersburg, Inc , d/b/a Outrigger Inn) for lack
of any evidence that they meet the Board's discretionary
standards for asserting jurisdiction Carolina Supplies and
Cement Co , 122 NLRB 88, 89 Furthermore, it has not been
established that any of these employers are, in fact, parties to the
contract
163 NLRB No. 48