United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada

National Labor Relations Board - Board Decisions

Dec 21, 1953

107 N.L.R.B. 463 (N.L.R.B. 1953)

LOCAL 211 , UNITED ASSOCIATION OF JOURNEYMEN 463
LOCAL 211, UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE FITTING
INDUSTRY OF THE UNITED STATES AND CANADA, AFL
and OIL WORKERS INTERNATIONAL UNION, CIO and
ETHYL CORPORATION. Case No. 39 - CD-10. December
21, 1953
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which
provides that "whenever it is charged that any person has
engaged in an unfair labor practice within the meaning of para-
graph ( 4) (D) of Section 8 (b), the Board is empowered and
directed to hear and determine the dispute out of which such
unfair labor practice shall have arisen . . . ."
On June 10, 1953, Oil Workers International Union, CIO,
herein called the Oil Workers , filed with the Regional Director
for the Sixteenth Region a charge against Local 211, United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL,
herein called the Pipefitters , alleging , among other things,
that it had engaged in and was engaging in certain activities
proscribed by Section 8 (b) (4) (D ) of the amended Act. It was
alleged, in substance , that the Pipefitters had induced and en-
couraged employees of the Employer to engage in a concerted
refusal to work in the course of their employment with an ob-
ject of forcing or requiring Ethyl Corporation , herein called
the Employer , to assign particular work to members of the
Pipefitters rather than to employees who are members of the
Oil Workers.
Pursuant to Section 102.71 and 102.72 of the Board's Rules
and Regulations , the Regional Director investigated the charge
and provided for an appropriate hearing upon due notice to all
the parties . Thereafter , a hearing was held before Willis C.
Darby, Jr., hearing officer , on June 22 and 23, 1953. The
Employer was permitted to intervene and to participate fully
in the hearing . All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing on the
issue . The rulings of the hearing officer made at the hearing
are free from prejudicial error and are hereby affirmed.' All
parties filed briefs with the Board.
The Employer ' s request for oral argument is hereby denied
as the record and briefs adequately present the issues and the
positions of the parties.
Upon the entire record in the case, the Board makes the
following:
'The Employer excepts to the hearing officer 's ruling rejecting certain evidence concern-
ing a charge filed against the Pipefitters in Case No. 39 -CD-8. In view of our determination
herein, we deem it unnecessary to pass on this ruling of the hearing officer.
107 NLRB No. 125.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Ethyl Corporation is a Delaware corporation and its recently
activated plant at Pasadena, Texas, which is the only plant in-
volved in this proceeding, is engaged in the manufacture, dis-
tribution, and sale of Ethyl brand of antiknock compound.
Ethyl Corporation annually purchases supplies and materials
valued in excess of $1,000,000 from points located outside the
State of Texas, and annually sells and ships products valued in
excess of $1,000,000 to points outside the State of Texas. We
find that the Employer is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 211, United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL, and Oil Workers International Union,
CIO, are labor organizations within the meaning of the Act.
III. THE DISPUTE
A. The facts
In May 1952 the Employer began operations at itsPasadena,
Texas, plant. On December 29, 1952, following Board-directed
elections ,' the Oil Workers was certified by the Board as
bargaining representative for the production and maintenance
unit, and the Pipefitters was certified for separate units of
pipefitters and welders, respectively, at this plant. During the
spring of 1953, the Employer engaged in negotiations with
these and other unions. Except for the Pipefitters, contracts
were executed with all the unions.
Negotiations between the Employer and the Pipefitters began
on March 31, 1953. At the first meeting, the Pipefitters de-
manded that the contract cover not only pipefitters and welders,
but also "all pipe and welding work in the plant. " The Em-
ployer stated that this could not be done without violating the
Board certifications in that the cell mechanics and shift
mechanics, part of whose work was claimed by the Pipefitters,
were included in the production and maintenance unit for which
the Oil Workers had been certified. At the next meeting, on
April 7, 1953, the Pipefitters again made this demand and the
Employer suggested that the Pipefitters work out some
mutually acceptable plan with the other unions. Further meet-
2 Ethyl Corporation, 101 NLRB 435. Oil Workers also won in, and was certified for, separate
units of instrument mechanics and substation operators; International Brotherhood of Elec-
trical Workers, Local Union No. 716, AFL, herein called IBEW, in a separate unit of elec-
tricians; and Sheet Metal Workers International Association, Local Union No. 45, AFL, in a
separate unit of metal workers.
LOCAL 211, UNITED ASSOCIATION OF JOURNEYMEN 465
ings were held during the month of April. At a meeting on
April 30 the Pipefitters asserted that "it would take all the
pipefitting and all the welding work to get the contract signed"
and that "they were going to get all that pipe work [the pipe
work performed by cell mechanics and shift mechanics] or
they would put up a picket line if it was necessary to get it"
and maintain it for "twenty years, if necessary." At additional
bargaining sessions between April 30 and June 4, work assign-
ments, although not discussed in detail, remained in issue, as
did wage demands.
During the afternoon of June 8, Eddleman, a cell mechanic,
was engaged in cutting and threading pipe for use on cell bases
on the pipe machine in the cell-mechanic shop. Miller, spokes-
man for the Pipefitters, approached him and told him he was
going to have him pulled off the pipe machine, saying, among
other things, " we are going to get it; we are holding up on our
wage negotiation until we settle our dispute on the jurisdictions
around here," and "if we don't get it settled, we will pull the
men out of the plant."
The next day, June 9, the above incident was discussed at the
bargaining session . The Employer's representative, Kennedy,
restated its position on work assignments and repeated that it
was not changing its policy or practice. At this juncture, the
Pipefitters' contingent got up and walked out. Union witness
Miller testified at the hearing that the Pipefitters had decided
to break off negotiations because the Employer would not de-
part from its established policy or practice. There was further
testimony that some in the Pipefitters' group stated that there
probably would be a picket line in the morning. When Plant
Manager Bergin asked why they were walking out, Union Repre-
sentative Mask said, "We'll call it wages." This meeting, at
which jurisdiction was the main subject of discussion, lasted
approximately 15 minutes. The parties met again later in the
day. Over 90 percent of this meeting was taken up with a dis-
cussion of the work of the cell mechanics, shift mechanics, and
others, and at one point union spokesman Quinn said, "Well, it
looks like we are doing only about fifty percent of the work in
this plant. It looks as though the company is asking for trouble
here." After additional talk, partly as to wages , Quinn turned
to Mask and told him to get his boys and take them out.
The following morning (June 10), the pipefitters and welders,
along with the electricians and metalworkers, failed to report
to work, and the Pipefitters concededly established a picket
line. That afternoon, the Employer received a telegram from the
Pipefitters stating that the picket line was being maintained
"because of low rate of pay only" and that it would be removed
if the Employer granted the $2.52 per hour they were de-
manding. A letter to like effect followed. On the same day, the
Oil Workers filed Section 8 (b) (4) (D) charges with the Board.
On June 11, the Employer obtained a restraining order in the
State District Court, and the picket line was removed. On
June 12, the Pipefitters' attorney wrote the Employer's at-
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
torney, again asserting that the picket line was established
because of a failure to agree as to wages , and offering to with-
draw the issue over work assignments from the negotiations.
However, the letter also stated that the Pipefitters will leave
the clarification of the work assignments to the Board. And at
the hearing , counsel for the Pipefitters stated that it would
petition for clarification if "not satisfied with work assign-
ments," and that until that is done, "there is no way of knowing
whether or not we are dissatisfied with the present work
assignments."
The electricians and metalworkers returned to work on
June 12. The pipefitters and welders did not return to work
until June 18.
B. Contentions of the parties
The Oil Workers contends that this is a dispute within the
meaning of Sections 8 (b) (4) (D ) and 10 ( k); that the fact that
some other demand by the Pipefitters may have been in issue
at the time of the strike does not detract from the fact that the
principal reason for the strike was the Pipefitters ' jurisdic-
tional claim for work assignments ; and that, on the merits,
the disputed work belongs in the unit covered by the Oil Work-
ers' certification.
The Employer , like the Oil Workers, contends , in substance,
that the strike called by the Pipefitters was to force or re-
quire the Employer to assign to the Pipefitters work historically
performed in the plant by employees in the unit represented by
the Oil Workers; that this was violative of Section 8 (b) (4) (D)
and properly the subject of a Section 10 (k) hearing ; that the
Employer had not, in the language of the statute, violated any
order or certification of the Board ; and that the Pipefitters
had no right to the disputed work under any existing contract
or certification.
The Pipefitters denies that it violated Section 8 ( b) (4) (D),
contending that the sole reason for the June 10 strike and
picketing was the failure of the Employer to pay employees
bargained for by the Pipefitters the same wage that the Em-
ployer had agreed to pay the employees bargained for by IBEW,
but does not argue the merits of the work assignments.
IV. APPLICABILITY OF THE STATUTE
The Pipefitters contends , in effect , that the events preceding
the strike and certain letters and telegrams sent to the Em-
ployer after the strike began show that the sole purpose of the
Pipefitters was to obtain a higher wage . We do not agree.
We are satisfied from the record , includingthe facts detailed
above, that the principal purpose of the June 10 strike and
picketing was to force or require the Employer to assign the
disputed work to employees represented by the Pipefitters
rather than to employees of the Employer who were repre-
LOCAL 211, UNITED ASSOCIATION OF JOURNEYMEN 467
sented by the Oil Workers. Although the Pipefitters attempted
to explain the activities of June 10 on other grounds, the letters
and telegrams relied on by the Pipefitters do not, in our
opinion, negate the factual sequence of events as shown in the
record. Moreover, the Board has held that it is immaterial if
in addition to an unlawful objective, another object of a strike
is a permissible one.3
Under the circumstances, we find that there is reasonable
cause to believe that the Pipefitters violated Section 8 (b) (4)
(D) of the Act.4 Accordingly, we find that this is a dispute within
the meaning of Sections 8 (b) (4) (D) and 10 (k) of the Act, and
therefore properly before us for determination.
V. THE MERITS OF THE DISPUTE
We view the dispute here essentially a disagreement between
2 unions over the question whether certain disputed work be-
longs in one or the other of 2 existing bargaining units.
Although the Pipefitters did not, at the hearing or in its
brief, state its position as to the merits of the dispute under
discussion, it was implicit in its position which gave rise to
this proceeding that certain work of the cell mechanics and
shift mechanics belonged in the units covered by its Board
certifications. The Oil Workers contends that the Board de-
cision in the representation case on which the certifications
were based did not reassign work from one group in the plant
to another; that the groups carved out were those composed of
a definitely described group of craftsmen only; and that certain
welding and pipefitting work done as an incident to the regularly
assigned work of cell mechanics and shift mechanics had been
historically assigned to employees in the production and main-
tenance unit, and should continue to remain there. The Em-
ployer agrees, in effect, with the position stated by the Oil
Workers, and asserts affirmatively that its right to assign
work to its employees covered by the existing certifications
should not be interfered with by the pressure of one of the
bargaining agents in the plant.
In its decision in the representation proceeding the Board
described the duties of the Employer's 22 pipefitters and 6
helpers and 8 first-class welders. Voting groups of pipefitters
and welders were established. In establishing such groups, the
Board relied on the facts in the record showing that no other
3United Brotherhood of Carpenters and Joiners of America (Wadsworth), 81 NLRB 802,
enfd. 184 F. 2d 60 (C. A 10); United Brotherhood of Carpenters and Joiners of America
(Watson's), 341 U. S. 707. affirming 181 F. 2d 126 (C A 6), enforcing, 80 NLRB 533; Wine,
Liquor R. Distillery Workers Union (Schenley), 78 NLRB 504, enfd. 178 F 2d 584 (C. A. 2).
4The Board made it clear in Truck Drivers and Chauffeurs Union (Direct Transit Lines),
92 NLRB 1715, that in a Section 10 (k) proceeding it is necessary to establish a prima facie
showing, i e. probable cause, that a violation occurred, and not, as the Pipefitters contends,
proof by a preponderance of the evidence that the unfair labor practices were committed.
That burden rests on the General Counsel in the later Section 8 (b) (4) (D) proceeding before
a Trial Examiner, if that becomes necessary.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees were assigned to do the work of the pipefitters and
although some welding work was done by other employees, such
work was minor and incidental to other work being performed.
Included in these voting groups were only those employees who
worked primarily , if not exclusively , in the pipefitter and
welder classifications. Conversely, as the cell mechanics and
shift mechanics performed a variety of maintenance tasks,
and were therefore not readily identifiable with either the pipe-
fitters or the welder groups, they were included in the produc-
tion and maintenance unit. Indeed, the Pipefitters, when they
were apprised of the duties of the mechanics under considera-
tion, did not consider them as being properly part of the craft
units sought in its petitions . Nor did it seek to represent them
in separate units.
The record before us in the present proceeding shows no
substantial or permanent changes in work assignments since
the representation proceeding was concluded .' The cell me-
chanics continue to work on all piping on the sodium cells in
the cell room , and have performed this work exclusively since
the plant began operations. Similarly, they continue to weld,
cut, and thread pipe in connection with building and repairing
the cells , and to operate the pipe machine in the cell -mechanic
shop. This work is done exclusively in the sodium-cell room
and shop. The shift mechanics continue todomaintenance work
of all types such as metal work, carpentry, and pipe work on one
of the shifts . The operators in the cell room continue to remove
and install pipe in the cells.
In view of the foregoing , and as the Pipefitters here repre-
sented no new facts which would warrant a new and different
disposition of the unit questions , we find that the employees
performing the work in dispute have interests in working con-
ditions more closely related to those of the production and
maintenance employees than to the employees in the pipefitter
and welder units.'
DETERMINATION OF DISPUTE
On the basis of the foregoing findings of fact and upon the
entire record in this case, the Board makes the following de-
termination of dispute , pursuant to Section 10 (k) of the amended
Act:
1. The classifications of cell mechanic and shift mechanic
at the Employer ' s plant in Pasadena , Texas, are included in
5 When the plant first started, 2 employees classified as welders performed the welding work
in the cell room. Later , at the request of the welders , 2 employees qualified to do welding work,
were hired in the cell mechanic classification, and the regular welders no longer perform this
work This change was contemplated at the time of the representation hearing . A pipefitter
temporarily performed the work of a shift mechanic on the second shift , but when the plant
settled down to normal operations , he was transferred to perform the regular duties of his
classification on the day shift
6 We are not , however, by this action to be regarded as "assigning" certain pipe and weld-
ing work to the Oil Workers.
LOCAL 211, UNITED ASSOCIATION OF JOURNEYMEN 469
the bargaining unit presently represented by Oil Workers
International Union, CIO, and not in the bargaining units now
represented by Local 211, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL.
2. Within ten ( 10) days from the date of this Decision and
Determination of Dispute , Local 211 , United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL, and Oil Work-
ers International Union, CIO, and Ethyl Corporation, shall
each notify the Regional Director for the Sixteenth Region, in
writing, of the steps it has taken to comply with the terms of
this Decision and Determination of Dispute.
Member, Murdock , dissenting:
Again I am compelled to disagree with a majority, of the
Board in its disposition of this proceeding under Section 10 (k)
of the Act.
In no case "decided'' by the Board heretofore in a Section
10 (k) proceeding has it been so obvious that the proceeding is
not only futile and unnecessary but that , in fact, it detracts
from the clarity of the unit findings in a previous representa-
tion proceeding conducted by the Board under Section 9 of the
Act by reconsidering unit contentions disposed of by the prior
representation case decision , direction of elections , and sub-
sequent certifications.
We have here two unions which have been certified to repre-
sent employees in certain bargaining units defined in the repre-
sentation case . On the facts found by the majority one of the
unions has exerted pressure upon the Employer in order to
force it to recognize that union as the representative of certain
employees included in the unit for which the other union was
certified as bargaining representative by the Board. This force
was exerted upon the Employer to require it to engage in bar-
gaining which would be in derogation of the certification of the
Board. Conduct of this type would seem to fall within the scope
of Section 8 (b) (4) (C ). Recourse to that Section of the Act
would appear to be an effective way to reach such conduct,
whereas a recourse to Sections 10 (k) and 8 ( b) (4) (D) is a waste
of the time and resources of the parties and of the Board.
A reading of the "Decision and Determination of Dispute"
approved by the majority in this case makes it clear that Sec-
tion 10 (k) has been distorted and stretched to include pro-
ceedings which Congress did not intend to be within Section
10 (k). I have , in a series of cases, previously set forth my
position as to the criteria which, in my opinion , should be met
before the Board attempts to arbitrate a dispute under Section
10 (k), and it is not necessary for me to repeat those standards
here. As shown by the representation case decided by the Board
(101 NLRB 435), the classifications of cell mechanic and shift
mechanic were included in the production and maintenance
unit represented by Oil Workers International Union, CIO. The
47 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority has repeated that conclusion in its "Determination of
Dispute" herein. As if to leave no doubt, however, as to the fact
that this is being handled as a representation case, the ma-
jority, in its opinion states," . . . and as the Pipefitters here
presented no new facts which would warrant a new and differ-
ent disposition of the unit questions, we find that the employees
performing the work in dispute have interests in working con-
ditions more closely related to those of the production and
maintenance employees than to the employees in the pipe-
fitter and welder units." It is inconceivable to me that Con-
gress intended appropriate unit questions to be relitigated in
a Section 10 (k) proceeding. But that is not all--for, after
having conformed Section 10 (k) to encompass a representa-
tion proceeding, the majority further compounds confusion by
stating, "We are not, however, by this action to be regarded
as `assigning ' certain pipe and welding work to the Oil Work-
ers." Whatever this may mean in its context, I doubt that it
will serve these parties or any others who come before the
Board as that clear delineation of rights and that signpost to
future conduct which should be essential characteristics of a
Board decision.
For the reasons appearing above, I would quash the notice
of hearing under Section 10 (k).
LOCAL 1083, UNITED AUTOMOBILE, AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO
and ALLIED INDEPENDENT UNIONS, C.U. A., Petitioner.
Case No. 13-RC-3479. December 21, 1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Helene Zogg,
hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby
affirmed.
At the close of the hearing, the Employer moved to dismiss
this proceeding. For the reason hereinafter stated, the motion
is granted.
The Employer operates a commissary located on the plant
premises of Kearney & Trecker Corporation at West Allis,
Wisconsin, where it sells lunches, sandwiches, beverages,
and other miscellaneous items to the employees working in
the plant. The Employer pays a rental for the location to
Kearney & Trecker Corporation, and retains the commissary
profits for its own purposes. The Employer's executive board
is responsible for management of the commissary, and controls
the hiring and discharge of commissary employees. The
commissary annually purchases foodstuffs and supplies amount-
ing to more than $100,000, or which approximately $ 10,000 is
107 NLRB No. 107.