United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada

National Labor Relations Board - Board Decisions

Apr 9, 1954

108 N.L.R.B. 186 (N.L.R.B. 1954)

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same from a competitor on the Employer ' s credit. The
Employer's standard procedure , however, is to permit such
purchases only when authorized by the lumberyard manager.
The Employer has not asked the shipper for recommendations
as to the discipline and discharge of employees . The record
does not disclose what weight , if any, might be accorded to his
recommendation if given. Contrary to the Employer ' s position,
we find that the shipper is not a managerial employee nor a
supervisor as defined in the Act . We shall therefore include
the shipper in the unit herein found appropriate.
We find that the following employees of the Employer con-
stitute separate appropriate units for the purposes of collective
bargaining within the meaning of Section 9 ( b) of the Act:
(a) All employees at the Employer ' s Stamford , Connecticut,
lumberyard , including millmen, drivers , loaders, helpers,
tallymen, and laborers , but excluding office clerical employees,
professional employees , sales employees , estimators , guards,
watchmen, and supervisors as defined in the Act.
(b) All employees at the Employer ' s Norwalk, Connecticut,
lumberyard , including yardmen, millmen , drivers , loaders,
helpers , tallymen, laborers , and the shipper, but excluding
office clerical employees , professional employees, sales
employees , estimators , guards , watchmen, and supervisors as
defined in the Act.
[Text of Direction of Elections omitted from publication.]
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, LOCAL 428, AFL and
RIGGERS AND MACHINERY MOVERS LOCAL UNION 161,
affiliated with INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, LOCAL 420, AFL; JOHN
SMALL, Business Agent of LOCAL 420 and RIGGERS AND
MACHINERY MOVERS LOCAL UNION 161, affiliated with
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL
AND ORNAMENTAL IRON WORKERS, AFL. Cases Nos. 4-
CD-19 and 4-CD-20. April 9, 1954
DECISION AND DETERMINATION OF DISPUTES
This proceeding arises under Section 10 (k) of the Act, which
provides that "Whenever it is charged that any person has en-
108 NLRB No. 50.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES 187
gaged in an unfair labor practice within the meaning of para-
graph ( 4) (D) of section 8 (b), the Board is empowered and di-
rected to hear and determine the dispute out of which such un-
fair labor practice shall have arisen...."
On February 26, 1953, Riggers and Machinery Movers Local
Union 161, affiliated with International Association of Bridge,
Structural and Ornamental Iron Workers , AFL, herein called
the Riggers , filed with the Regional Director for the Fourth
Region charges alleging that United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada , Locals 4Z0 and 428, AFL, and John
Small, business agent of Local 420 , herein called the Pipefitters,
have engaged in and are engaging in certain activities proscribed
by Section 8 (b) (4) (D ) of the Act . Supplementary charges were
filed on May 8, 1953. It was charged in substance that the Pipe-
fitters had engaged in and induced and encouraged employees of
several employers to engage in a concerted refusal to work in
the course of their employment with an object of forcing several
employers to assign various disputed work to members of the
Pipefitters rather than to members of the Riggers.
Thereafter , pursuant to Section 10 (k) of the Act and Sections
102.71 and 102 .72 of the Board's Rules and Regulations, the
Regional Director investigated the charges and provided for an
appropriate consolidated hearing upon due notice to all the
parties. The hearing was held before Ramey Donovan and
Bernard Samoff , hearing officers , for 27 days in the period
between April 29 and September 29, 1953. All the 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 issues . The rulings of the hearing
officers made at the hearing are free from prejudicial error and
are hereby affirmed .' Both the Pipefitters and the Riggers filed
briefs with the Board.
Upon the entire record in the case, the Board makes the
following:
FINDINGS OF FACT
1. Commerce data concerning the several employers men-
tioned below was introduced in evidence at the hearing . Upon the
basis of such data, we find that at least one employer at each of
the several dispute sites is engaged in commerce within the
meaning of the Act.
2. The Pipefitters and the Riggers are labor organizations
within the meaning of the Act.
3. The several disputes.
i The Pipefitters moved to dismiss the notice of charge with respect to the allegations at
several job dispute sites . The hearing officers referred the motion to the Board . For the
reasons stated hereinafter , the motion is denied.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The facts
Background
It appears that the Pipefitters has for a considerable time
maintained , in substance , that the rigging of all materials on
which pipefitters work was and is within its jurisdiction. This
claim was addressed to all piping and general contractors with
whom the Pipefitters had collective -bargaining agreements.
Some piping contractors , however, subcontracted the rigging
work on heavy pipefitter materials to rigging contractors, who in
turn had collective -bargaining agreements with the Riggers.
This subcontracting practice arose primarily because the piping
contractors did not have adequate equipment for heavy rigging
work. Moreover , some general contractors , who directly hired
both pipefitters and riggers , assigned the disputed rigging work
to riggers in the belief that they were better qualified to handle
such work.
Faced with action in derogation of its claimed jurisdiction,
the Pipefitters sought and obtained from the piping contractors
in the Philadelphia area a contract which provided in part that
all rigging work would be done by pipefitters . That provision
first appeared in the Local 420 contract--with individual piping
contractors and with the Air Conditioning , Heating and Plumb-
ing Employers Association of Philadelphia , herein called the
Philadelphia Association - -which was executed on May 1, 1952,
and which expired on April 30, 1953, during which period all of
the instant disputes arose.
In similar fashion, the Pipefitters prevailed upon the general
contractors to incorporate in their national contract a provision
which broadly defined the work jurisdiction of pipefitters to in-
clude the disputed rigging. Aside from this national contract,
the general contractors adhere as a matter of practice to the
terms of the contracts of Locals 420 and 428 when performing
a job in the Philadelphia area.
After the Pipefitters secured these contracts, the Riggers
exerted pressure upon rigging contractors to prevent the rental
of rigging equipment to piping contractors . Because of this
pressure , 2 some piping contractors were unable to obtain the
equipment necessary for the rigging of heavy pipefitter ma-
terials . Their only alternative - - purchase of the needed rigging
equipment --was regarded as economically unfeasible.
Notwithstanding these difficulties, the contractors attempted
to abide by their agreement and, indeed , were able to do so in
a large majority of cases . But on roughly 5 percent of the Pipe-
fitters' jobs in the Philadelphia area, disputes broke out between
2 The Pipefitters also attempted to help the piping contractors conform to their contrac-
tual obligation by producing rigging contractors who employed members of the Pipefitters
to perform rigging work. For a number of reasons , not here important , this effort met with
no success.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES 189
the 2 Unions. On some jobs, the piping contractors again sub-
contracted the disputed work to rigging contractors, on occasion
admitting to the Pipefitters that such conduct constituted a vio-
lation of their contract. On other jobs, the general contractors
continued to assign the disputed work to riggers. The Pipefitters
promptly protested these actions, claiming that the disputed
work belonged to the pipefitters and that the contractors were
violating their agreements. When the contractors refused to
reassign the work as demanded, the Pipefitters took various
retaliatory action. That action varied from job to job, and in-
cluded strikes, sitdowns, and standbys.'
1. York Corporation disputes
A. Federal Reserve Bank job
York Corporation is primarily engaged in the manufacture of
air-conditioning equipment. In addition, it is a sales and engi-
neering organization, erecting and installing its manufactured
equipment. For installation work, York hires pipefitters.
York had a contract to supply, deliver, and erect certain air-
conditioning equipment in the Federal Reserve Bank in Phila-
delphia. York, in turn, awarded a subcontract to Frank W. Hake,
a rigging contractor, to deliver, hoist, and place such equipment,
i.e., the rigging work. York was a member of the Philadelphia
Association and hence under contract to Local 420. Hake, on
the other hand, had a contract with the Riggers.
In March or April 1953, Hake' s riggers brought the equipment
to the job site and began work. York's pipefitters were at that
time laying out the center lines for base plates which were
necessary to the placing of the equipment. Breen, business agent
of Local 420, came to the job, claimed the riggers' work, and
told the pipefitters to stop working. The pipefitters left the job
taking with themblueprints which were essential to a completion
of the rigging work. After a 2-day delay, the riggers obtained
duplicate blueprints and finished their work.
The day after the walkout, Breen told a York representative
that the pipefitters would not return while the riggers were
working on the job site. York promptly complained to the Phila-
delphia Association about the work stoppage by the pipefitters.
At a meeting on April 1 relating to that complaint, the Pipe-
fitters charged York with a contract violation but did not deny
that it had called a strike on this job site. Indeed, McHenry,
business manager of Local 420, agreed to return the pipefitters
provided that the riggers would do no further work on that job.
Moreover, McHenry wanted to know York's intentions with re-
gard to the disputed work at other job sites as a condition to a
return to work. The pipefitters did return on the day the riggers
completed their work.
31n such instances, the pipefitters were present at the job site but in fact did no work.
190 DECISIONS OF NATIONAL LABOR RELATIONS ROARD
B. Horn & Hardart job
York had a contract to install certain air - conditioning equip-
ment in a Horn & Hardart restaurant in Philadelphia . York, in
turn, awarded a subcontract to George Young Co., a rigging con-
tractor, to set that equipment . Young employed members of the
Riggers.
York's pipefitters had warned York that there would be
trouble if the riggers appeared on the job . Evans, York's
pipefitter foreman, informed York that Local 420 had in-
structed him not to let the riggers work. On April 1, at the
meeting referred to above, McHenry told York that he wanted
York to use pipefitters for the rigging work on this job, that
Young was not going to do the rigging work, and that , if neces-
sary, a strike would be called to enforce the Pipefitters' de-
mands.
On April 1 , 1953, when the riggers arrived on the job, Small,
business agent of Local 420, was summoned . The pipefitters
thereupon stopped work and left the job. The stoppage lasted for
3 working days. Thepipefitters informed Yorkthatthey had been
ordered not to work. Small denied that he had instructed anyone
to leave the job. After the stoppage , York reassigned some of
the pipefitters to other job sites . The Pipefitters returned to
the Horn & Hardart job site after the riggers had completed
their work . The riggers , however, were also absent from the
job site for a number of days. On April 1, the day the pipefitters
walked off , the pipefitters approached the riggers and claimed
the latter ' s work. The riggers then called their business agent
and their employer, Young , and were advised to avoid trouble
and to return the equipment without doing the work.
The Pipefitters made its position abundantly clear at the
Philadelphia Association meeting on April 6, 1953. Local 420's
representatives stated that if York or any piping contractor
with whom the Pipefitters had a collective-bargaining contract
continued to use riggers on the disputed work, Local 420 would
strike.
The Riggers apparently submitted the dispute on the instant
job site to the National Joint Board for Settlement of Juris-
dictional Disputes , herein called the Joint Board. However, no
decision or determination was ever made.
H. Rohm & Haas job
Rohm & Haas Company, a Delaware corporation , owns and
operates manufacturing plants in a number of States. The in-
stant dispute involves its Bristol , Pennsylvania , factory, where
plastics and chemicals are manufactured.
Rohm & Haas awarded contracts to Herman Goldner Co., a
piping contractor, and Bolger - Parker, a rigging contractor.
Goldner's contract , among other things, called for the setting of
2 vessels weighing less than 500 pounds , while 13 other vessels,
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES 191
each over 500 pounds, were to be set by Bolger -Parker. Goldner
and Bolger-Parker had contracts with the Pipefitters (Local 420)
and the Riggers, respectively. Rohm & Haas, onthe other hand,
had no contract with either Union. Nor did it directly hire either
pipefitters or riggers.
In February 1953, while the pipefitters were installing a pipe-
line, the riggers arrived atthe job site and began work. Beaster,
the Pipefitters' steward, told a Rohm & Haas representative
that the vessels would not be set by riggers. A meeting was
promptly held in Rohm & Haas' offices between all parties con-
cerned. Business agents for both Unions were present. Each
claimed the work for his Union. Those claims were directed at
Rohm & Haas, not at the contractors . Small threatened to stop
the job unless the pipefitters were assigned the disputed work.
In addition, he said he would not permit the riggers to do the
work.
After this conference, the parties went to the job site. Two
vessels had already been set by the riggers. As the riggers were
about to lift a 1,500-pound vessel, 3 or 4 pipefitters climbed
onto it at the direction of Small. Because of the safety hazards
resulting from the pipefitters' actions, neither the crane
operator nor Rohm & Haas would allow the vessel to be lifted.
The pipefitters sat on the vessel for 15 minutes to 2 hours, while
other pipefitters stood about and did no work.
Rohm & Haas promptly contacted representatives of both con-
tractors . Goldner's representative suggested that the riggers do
the work with the pipefitters receiving standby pay. The Pipe-
fitters accepted this proposal and the riggers finished the work
3 days later. During that period, pipefitters, equal in number to
the working riggers, stood by while the rigging work was per-
formed.
III. Byberry State Hospital job
United States Hoffman Machinery Corporation, a manufac-
turer and seller of diverse equipment, had acontract to supply
laundry equipment to the Byberry State Hospital. Hoffman, in
turn, awarded a subcontract to Charles Benjamin Rigging
Company, a rigging contractor , to set such equipment. C. E.
Williames Company Inc., a piping contractor, maintained that
it too had a contract from Hoffman to perform the very same
work. In addition, Williames had a contract with the Pennsyl-
vania State Authority to do the piping work on that machinery
after it was set. Early in November 1952, Hoffman clarified
matters by informing Williames through the latter's foreman
that Hoffman was giving the rigging contract to Benjamin.
Williames and Benjamin had contracts with the Pipefitters
(Local 420) and the Riggers, respectively. Hoffman, on the other
hand, had no contract with either Union. Nor did Hoffman direct-
ly hire either pipefitters or riggers for the type of work in
question.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 12, 1952, Benjamin ' s riggers first appeared
at the job site. The next day, Gill, Hoffman' s sales represent-
ative, was informed by one of the company's field represent-
atives that work had been stopped by the pipefitters at the By-
berry job and that Small was responsible . Gill went to the job
site and discussed the problem with the contractors and the
Unions. Both Unions claimed the rigging work . Small threatened
to stop the entire job if the riggers set the laundry equipment.
A number of witnesses testified concerning the events prior
to Gill's appearance at the job site. It appears that the riggers
had begun their work. The Pipefitters' foreman claimed the
work, threatened a strike, and stated he would stop the riggers
from working . Small appeared and instructed the pipefitters to
stop the riggers . The pipefitters formed aline in front of some
equipment which the riggers were to set and thus prevented the
performance of their work. Indeed, Sfnall advised the pipefitters
to use force , if necessary , to stop the riggers from working.4
These threats of violence continued even after Gill arrived on
the job site.
Shortly after Gill arrived, he requested Benjamin to stop the
rigging work until the dispute was adjusted . The pipefitters had
already stopped work. A conference was then held between the
interested parties, during which time Gill asked both contractors
to delay performance of the disputed work. At that conference,
it was further agreed that the disputed work would not be done
until a settlement had been effected. The pipefitters, however,
did no work during the conference , notwithstanding the fact that
there was other work for them to do on the job site.
At the above conference , the question of submittingthe dispute
to the Joint Board was discussed . That evening, Benjamin, after
speaking with his attorney , contacted the Joint Board concerning
the dispute. The next day, November 14 , Benjamin received an
answer. The Joint Board recited Benjamin ' s allegations against
the Pipefitters and instructed Local 420 to cease any interfer-
ence with Hoffman ' s assignment and to process anywork assign-
ment complaint in accordance with Joint Board procedures. The
Joint Board' s answer apparently settled the dispute, for the
riggers returned to the job onNovember 19, showed the answer
to the pipefitters , and completed the disputed work without inter-
ference. No work assignment complaint was ever processedby
the Pipefitters. Nor was any Joint Board decision issued in this
matter.
IV. Conshohocken Sewage Disposal Plant job
Bowers Brothers Company, a piping contractor , had a contract
to install certain mechanical equipment at the instant job site
at Conshohocken , Pennsylvania . Bowers, in turn , awarded a
4Small and other Pipefitters ' representatives denied that they had engaged in any of the
above conduct.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES 193
subcontract to Hake, a rigging contractor, to pick up, deliver,
and unload at the job site certain equipment which Bowers had
purchased. Bowers and Hake apparently had contracts with the
Pipefitters (Local 428) and the Riggers, respectively.
Hake's riggers appeared at the job site on February 9, 1953.
At that time, the Pipefitters objected to the unloading of the
equipment by riggers. The Pipefitters, through Hudson, business
agent of Local 428, claimed the unloading work and threatened
Bowers with a strike if its members were not assigned such
work. Indeed, Hudson also told the riggers that if they unloaded
the equipment, he would call the pipefitters off the job.' Bowers
suggested to Hudson and Hake that the riggers take a long lunch
hour so as to allow the pipefitters to do the vI'ork. The riggers
refused to do so and completed the work as originally contracted
for by Hake. This action provoked a work stoppage, pursuant to
Hudson's instructions, by the pipefitters. Apparently, the
members of both Locals 420 and 428 participated in the stop-
page. At the hearing, the counsel for the Pipefitters stipulated
that the pipefitters quit work because the riggers were perform-
ing the disputed work. The pipefitters did not work that after-
noon. Nor did they work the first hour of the following day. On
that morning, Bowers asked Hudson to put the pipefitters back
on the job. Hudson was reluctant to do so. Bowers then offered
to pay the pipefitters for working time lost the day before.
Hudson agreed to this and ordered the pipefitters to return.
Approximately 1 hour after regular starting time the pipe-
fitters were back at work.
B. Bargaining history
As already mentioned above, the Pipefitters relies in large
part upon its contracts with the piping and general contractors
as defenses to the charges filed herein.
The relevant provisions of Local 420's contract with both the
Philadelphia Association and individual piping contractors for
the period May 1, 1952, to April 30, 1953, are as follows:
Article V. Section 2. Apprentices must be members of
the [Pipefitters], and no [Pipefitter] will be permitted to
work with an apprentice who is not a member.
Article VI, Section 3. ... the piping contractor shall be
responsible for all piping and equipment which is a part of
the work of the United Association [Pipefitters] and shall be
handled and set by Local Union No. 420 Journeymen. The
Employer reserves the right to sublet work to a rigging
contractor with the provision that members of Local 420
will do the work. In addition, the rigging contractor may
supply one (1) man as an overseer.
Article VII, Section 1. There shall be no restrictions on
the use of tools by the foremen employed by the Employers
5 Hudson, however, denied that he made any such threats.
339676 0 - 55 - 14'
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association, but it is agreed that such foremen shall be a
member of Local Union No. 420.
Article VIII. Section 1. It is agreed that the Employers
Association shall employ only [Pipefitters] Journeymen and
Apprentices who are in good standing and who retain their
good standing in Local Union No. 420.
The relevant provisions of Local 428's contract with both the
Philadelphia Association and individual piping contractors for
the same period are as follows:
Article III, Section 5. It is agreed that maintenance and
repair work coming under the jurisdiction of Local Union
No. 428 ... shall be any work that interferes with the nor-
mal operations of the existing buildings, plants, or oper-
ations, etc. . . . . Maintenance work of this classification
shall be the jurisdiction of Local Union No. 428 . . . [and
shall be] performed by members of Local Union No. 428
. . . who are working for legitimate piping contractors that
are in contractual relationship with the [Pipefitters] . . .
Article V. Section 3. The Employers Association agrees,
upon [Local Union No. 428] obtaining a certificate of
approval from the [NLRB] to employ members of the Local
Union in good standing as defined in the [Act] and shall
further require all other Journeymen and Apprentices who
shall have worked for a member of the Employers Associ-
ation for a period of not less than thirty (30) days to make
application for membership in [Local Union No. 428].
Article X, Section 1. On all material and equipment
purchased by him, the employer agrees that during the
period of responsibility for any materials or equipment
under pressure or vacuum, such materials or equipment
shall be operated by [Pipefitters] Journeymen andAppren-
tices employed by the employer installing the work.
For reasons hereafter referred to, the provisions of the
national contract between the general contractors and the Pipe-
fitters need not be discussed.
C. Contentions of the parties
The Charging Party, the Riggers, contends that by the above
conduct the Pipefitters violated Section 8 (b) (4) (D) of the Act;
that none of the defenses posed by the Pipefitters has any
validity; and that any determination by the Board should award
the disputed work to the Riggers.
The Pipefitters contends that the Board is without jurisdiction
to determine the dispute onthe grounds that its conduct does not
fall within the proscription of Section 8 (b) (4) (D); that the Joint
Board is the appropriate agency for determining these juris-
dictional disputes; that several of the disputes have been sub-
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES 195
mitted to and settled by the Joint Board ; and that all the dis-
puted work having been completed , the instant proceeding is
now moot.
With respect to the merits of the dispute , the Pipefitters
asserts in essence as the basis for its claim to the work in
question --the terms of the contract between it and the several
piping and general contractors , the practice thereunder, and
the breach of those terms by the contractors . The Pipefitters
further argues that it has "been given jurisdiction over the type
of work involved here by custom , practice and by decisions of
the [AFL]."
D. Applicability of the statute
The charges , which were duly investigated by the Regional
Director , allege several violations of Section 8 (b) (4) (D) of the
Act, and the Regional Director was satisfied upon the basis of
such investigation that violations of the section had been com-
mitted.
In the proceeding under Section 10 (k) of the Act, the Board
is required to find only that there is reasonable cause to believe
that Section 8 (b) (4) (D ) has been violated before proceeding
with a determination of the dispute out of which the unfair labor
practice has arisen .6 As set forth above, the Pipefitters con-
tends that no violation of Section 8 (b) (4) (D ) occurred here.
We find a distinct pattern of conduct revealed by our study of
this record . That pattern inescapably defines both the nature and
purpose of the Pipefitters ' conduct. It shows that the Pipefitters
provoked work stoppages wherever its claimed work jurisdiction
was not respected . It further shows that the purpose of such
stoppages was to force the several contractors to reassign the
disputed work tasks to the pipefitters . With this pattern in mind,
the Pipefitters ' conduct at each of the job sites described above
is clearly identifiable as conduct falling withinthe proscription
of Section 8 (b) (4) (D ). Thus, there is substantial evidence that
at each of these job sites the Pipefitters engaged in or induced
and encouraged its members to engage in work stoppages with
the object of forcing a particular employer to assign the disputed
rigging work to pipefitters rather than to riggers . ? In disputes
I (A) and ( B), the Pipefitters was attempting to force York to
reassign the disputed work; in dispute 11, the pressure for re-
assignment was directed against Rohm & Haas; in dispute III
against Hoffman ; and in dispute IV against Bowers.
As we noted above, the Pipefitters ' officials denied part of
the conduct upon which we rely in making our findings herein.
6See, e.g., Local 26, International Fur & Leather Workers of the United States and Canada
(Winslow Bros .), 90 NLRB 1379 ; Truck Drivers and Chauffeurs Union, Local 705 (Direct
Transit Lines ), 92 NLRB 1715.
?See International Longshoremen's & Warehousemen 's Union, Local 48 (Upper Columbia
River Towing Co.), 107 NLRB 1637.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Notwithstanding these denials , we find, without definitively
resolving such conflicts in the testimony , that there is reason-
able cause to believe that the Pipefitters has violated Section 8
( b) (4) (D) at each of the above job sites.
In so finding , we are cognizant of other charged violations at
specific job sites to which we have not referred . Inasmuch as
there is at least 1 clear dispute for our determination under
each of the 2 charges filed ( 1 charge relates to Local 420 and
the other to Local 428), we deem it unnecessary to set forth or
determine the existence of the several other violations alleged
in the charges . Moreover , even assuming that the Riggers have
failed to establish the requisite prima facie violation of Section
8 (b) (4) (D ) with regard to such other disputes , that fact would
not deter the Board from determining this dispute in the manner
hereinafter described . The dispute is therefore properlybefore
this Board unless, as urged by the Pipefitters , it has become
moot or is in the process of being settled in a manner provided
by statute.
Although the particular jobs which gave rise to the present
case have been completed , the underlying jurisdictional dispute
has not been resolved . It exists as much in the Philadelphia area
today as on the completed jobs. Indeed, these jobs were com-
pleted only because the employers involved either capitulated
to the Pipefitters ' jurisdictional claim or insisted that the work
should be performed as originally assigned to the Riggers. A
determination by the Board is therefore still necessary . Accord-
ingly, we reject the Pipefitters ' contention that the case is
moot.'
Section 10 (k) of the Act, although directing that the Board
hear and determine disputes out of which Section 8 (b) (4) (D)
charges have arisen , contains equally mandatory language di-
recting that in certain circumstances the Board is not to make
any determination . Such limitations are contained in the under-
scored portions of the following language from Section 10 (k):
. . . the Board is empowered and directed to hear and
determine the dispute out of which such unfair labor
practice shall have arisen, unless , within ten days after
notice that such charge has been filed , the parties to
such dispute submit to the Board satisfactory evidence
that they have adjusted, or agreed upon methods for the
voluntary adjustment of the dispute . Upon compliance by
the parties to the dispute with the decision of the Board or
upon such voluntary adjustment of the dispute , such charge
shall be dismissed . [ Emphasis supplied.]
There is no evidence that the parties have adjusted their dis-
pute. It appears that the Riggers submitted the Horn & Hardart
BLocal 58, International Brotherhood of Electrical Workers et al. (Taylor Electric , Inc.),
107 NLRB 1004, National Association of Broadcast Engineers and Technicians et al.
( Teleprompter ), 95 NLRB 1470.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES 197
dispute ( I, B) and Benjamin submitted the Byberry dispute (III)
to the Joint Board . In neither case did a Joint Board decision
issue. Although the work at both job sites was completed, the
conflicting jurisdictional claims of the two Unions are still
being asserted . We find that the mere submission of a dispute
to the Joint Board by one of the parties to such dispute does
not constitute the requisite "adjustment " called for by Section
10 (k).9
Nor is there any evidence that the parties have "agreed upon
methods for the voluntary adjustment of the disputes." It is
true that both the Pipefitters and the Riggers are signatories to
the Joint Board plan . There are , however, other parties to these
disputes , e.g., the employer against whom the pressure for re-
assignment is exerted . In this connection , it appears that the
Heating, Piping and Air Conditioning Contractors National
Association was signatory to the Joint Board plan until April 14,
1952, at which time it withdrew . Its withdrawal carried all its
local branches , including the Philadelphia Association, out of
the Joint Board's jurisdiction . In turn, a number of the instant
piping contractors (York, Bowers, and others ) were members
of the Philadelphia Association , and their connection with the
Joint Board also ceased on April 14. As the charged violations
all occurred after that date, each of the disputes (I and IV) in-
volving such contractors had at least one party who had not
"agreed upon methods for the voluntary adjustment of the dis-
pute." Moreover , the same conclusion is compelled as to dis-
putes II and III for both Rohm & Haas and Hoffman,1° respec-
tively, were manufacturers who apparently had never assented
to the Joint Board plan . Accordingly, we find, pursuant to clear
Board precedent ,' that, under these circumstances , the Board
is not precluded from determining these disputes.'
In contrast , we note that only two of the charged violations--
involving United Engineers & Constructors , Inc., general con-
tractor at the Delaware Station Powerhouse job and at the
Crombey Station Powerhouse job of the Philadelphia Electric
Co.--would be subject to dismissal on the grounds that all the
parties to such disputes had previously agreed to refer all juris-
dictional controversies to the Joint Board. The parties thus
9 See United Brotherhood of Carpenters R, joiners et al (Ora Collard), 98 NLRB 346.
10 We do not believe that the conduct of the parties at the Byberry dispute ( III) establishes
an agreement on methods of voluntary adjustment as contemplated by Section 10 (k).
11 International Union of Operating Engineers et al . ( Empire State Painting & Waterproofing
Co.), 99 NLRB 1481; United Brotherhood of Carpenters & Joiners et al (Ora Collard), supra.
12 In this connection , the Pipefitters makes several other arguments , all of which we find to
be without merit. First, its reliance on General Warehousemen R. Employers Union et al.
( Roy Stone Transfer Corp ), 99 NLRB 662 , is unpersuasive . That case is clearly inapposite.
Second , the fact that the Pipefitters ' contract with the several contractors provides for a
joint arbitration board is of no materiality for that arbitration board has no power over the
Riggers . The Board has previously rejected a similar contention . See Local 26, International
Fur & Leather Workers Union (Winslow Bros .), 90 NLRB 1379, 1381, 1384. Lastly, the
possibility of some future agreement between the Unions on a method of adjustment of these
disputes is irrelevant . See Amalgamated Meat Cutters and Butcher Workmen of North
America , Local 556 (Safeway Stores , Inc.), 101 NLRB 181.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had at the time the charge was filed "agreed upon methods for
the voluntary adjustment of the disputes " within the meaning
of Section ( k).13 Indeed , the Joint Board actually settled the
principal dispute at the former job site.
We therefore find that the disputes in question , excluding the
two last mentioned , are properly before us for determination
under Section 10 (k) of the Act.
E. Merits of the dispute
At the time the Pipefitters sought the assignment of the dis-
puted rigging work for its members, the several piping con-
tractors and manufacturers had assigned such work to rigging
contractors , who employed riggers . The Pipefitters objected
not only to the subcontracting , but also to the fact that riggers
rather than pipefitters were doing a particular type of work.
The disputes in essence were therefore over employers' assign-
ments of work to members of one labor organization , rather than
to members of another labor organization.
It is now well established that an employer is free to make
such assignments free of strike pressure by a labor organ-
ization, "unless such employer is failing to conform to an order
or certification of the Board determining the bargaining repre-
sentative for employees performing such work ."'* It does not
appear that the instant employers against whom the Pipefitters'
pressure was exerted are failing toconformtoany such order
or certification 's of the Board . This does not, however , preclude
a determination that the Pipefitters ' contracts cover the assign-
ment of the work in dispute .'6 Indeed, the Pipefitters claims
that is has immediate contract rights upon which it can pred-
icate a lawful claim to the work in dispute.
The Pipefitters contends that the several piping contractors
were contractually obliged to assign the disputed work to pipe-
fitters , either directly or through a subcontractor who employed
pipefitters to do such work ; that the piping contractors breached
their contractual obligations ; and that, where necessary, "[the
Pipefitters] struck to enforce compliance with the contract." The
Pipefitters fails, however , to distinguish between the different
contractual relationships at each of the job sites . For, in two
of the instant disputes , an employer , other than the piping con-
tractor, made the disputed work assignment . In such cases, the
13See Carpenters Local 943 et al . (Manhattan Construction Co.), 96 NLRB 1 045, petition
for review dismissed 198 F. 2d 230 (C. A. 10).
MPile Drivers , Bridge , Wharf and Dock Builders , United Brotherhood of Carpenters &
Joiners of America , Local Union No . 34, AFL ( Klamath Cedar Company ), 105 NLRB 562;
International Longshoremen 's and Warehousemen ' s Union, Local No. 16 , CIO, (Juneau Spruce
Corp), 82 NLRB 650.
is The recent certifications awarded the Pipefitters on December 1 and 2, 1953, are of no
materiality in this proceeding.
'SNational Association of Broadcast Engineers and Technicians , CIO, et al. (National Broad-
casting Co.), 105 NLRB 355.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES 199
Pipefitters have no legitimate contract claim and, indeed, can
point to no breach by the piping contractor.
Thus, at dispute II, Rohm & Haas awarded 2 contracts, 1 es-
sentially for piping work and the other for rigging work. The
piping and rigging contractors had agreements with the Pipe-
fitters and the Riggers, respectively. Rohm & Haas, however,
had no contract with either Union. The Pipefitters protested
Rohm & Haas' work assignment and attempted to force a change
in contractors. But Rohm & Haas violated no contract. The fact
that the piping contractor was operating under an agreement
with the Pipefitters does not subject Rohm & Haas to any of the
obligations of that agreement. Indeed, neither was the piping
contractor in violation of its contract with the Pipefitters for it
assigned all of its work to the pipefitters. Under these circum-
stances, we find that the Pipefitters' contract does not entitle
its members to the work in question.17
The very same conclusion is compelled in dispute Ill. There
too the Pipefitters lacked privity of contract with Hoffman, the
employer who made the disputed work assignment to riggers
by way of a rigging contractor and the employer against whom
the Pipefitters exerted pressure for reassignment of such work.
Moreover, the only possible breach of contract there is between
Hoffman and the piping contractor. Assuming, arguendo, such
a breach, it would have no bearing on the Pipefitters' rights as
against either Hoffman or the piping contractor. Accordingly,
we reject the Pipefitters' contentions with regard to its con-
tracts insofar as disputes II and III are concerned.
The Pipefitters' argument has more substance at the remain-
ing dispute sites. For, at disputes land IV, the piping contractor
made the disputed work assignment. Dispute I concerns Local
420's contract and dispute IV concerns Local 428's. The rel-
evant portions of both contracts have already been set forth. For
the contracts to insulate the Pipefitters' actions, two conditions
must be satisfied: (1) The Pipefitters' contracts must embrace
the disputed rigging work, and (2) the contracts must otherwise
be valid, enforceable instruments.
York was the piping contractor in disputes IA and B. Through
the Philadelphia Association, York had a contract with Local
420. Article VI, section 3 of that contract, upon which the Pipe-
fitters primarily relies, precludes the subcontracting by York
of rigging work to contractors hiring other than pipefitters or,
more generally, precludes the use by York on all its rigging
work of any group other than pipefitters. The Pipefitters thereby
made clear its contractual purpose. That purpose was to monop-
olize the disputed rigging work on all 'materials which the
piping contractors were to handle. This conclusion is buttressed
by actual practice under the contract. For, a number of piping
17 Los Angeles Building & Construction Trades Council et al (Westinghouse Electric), 83
NLRB 477, 481-482; International Hod Carriers Union et al. (Middle States Tel Co.), 91
NLRB 598, 603-604.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractors, including York, admitted that their subcontracting
relationships with rigging contractors embraced the very work
in dispute which fell within their contract with the Pipefitters.
We find, however, that we cannot enforce this contract so as
to justify the Pipefitters' otherwise improper conduct. The basis
for this finding is that the union-security provisions (article II,
section 4, and article VIII, section 1) of Local 420's contract are
patently unlawful.18 In substance, they condition employment by
a piping contractor on membership in the Union. The Act,
however, states that union membership may be made a con-
dition of employment only "on or after the thirtieth day follow-
ing the beginning of . . . employment or the effective date of
[the] agreement, whichever is later." No such 30-day grace
period is provided for in this contract. Nor can article VI,
section 3, upon which the Pipefitters' defense turns, be sepa-
rated from these other articles. Article VI, section 3, is an in-
tegral part of the fabric of illegality which runs through the
entire contract. Indeed, article VI, section 3, is itself illegal in-
sofar as it provides that the undisputed rigging work will be
done only by members of Local 420. We will not, as a matter of
policy, allow such a contract to determine the dispute with re-
gard to York's assignments in the Pipefitters' favor.19
The Pipefitters makes the very same argument with respect
to Local 428's contract. That contract was involved at dispute
IV where Bowers awarded a subcontract to a rigging contractor.
The Pipefitters maintains that such conduct was a breach of
Bowers' contractual obligation. The only provisions in that con-
tract upon which Bowers' breach might possibly be predicated
are article III, section 5, and article X, section 1. Neither arti-
cle mentions the disputed rigging work. Nor do those articles
refer to any broad work jurisdiction capable of being incor-
porated into the contract. We do not believe the terms of this
contract warrant a finding that the disputed work had been
assigned to pipefitters. It follows that Bowers could not have
been in breach of contract. Accordingly, we reject the Pipe-
fitters' contention.
Furthermore, we find that the evidence relating to custom,
practice, and AFL decisions concerning the disputed work is of
no materiality. Only where both competing unions have an imme-
diate contractual claim to the disputed work would the Board
consider such evidence material."
Finally, we view these disputes as more than an isolated
series of occurrences. As already mentioned, there is a pattern
of conduct by the Pipefitters which is nothing less than a con-
tinuing plan to effect a Pipefitters' monopoly of the disputed
work in the Philadelphia area. We have illustrated that pattern
with specific instances which show the range of employers who
18 See, e.g., Green Bay Drop Forge Co., 95 NLRB 399; 97 NLRB 642.
19 The cases cited by the Pipefitters are, accordingly, inapposite.
20 Los Angeles Building & Construction Trades Council et al. (Westinghouse Electric), supra
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES 201
have been subject to the Pipefitters' pressure. We do not be-
lieve that a determination limited to those particular employers
would have the desirable deterrent effect onfurther aggressive
action growing out of this jurisdictional dispute. Therefore, in
order to effectuate the policies of the Act, we will broaden our
determination so as to protect all employers in the Philadelphia
area from an unwarranted continuation of this jurisdictional
strife. In so acting , we remain cognizant of the other media
available to the parties for settlement of this dispute; for
example, agreement to use the Joint Board's facilities. We do
not intend to discourage the use of such media. Indeed, we be-
lieve that by broadening our determination, we may encourage
an expeditious use of those media for the effectuation of a final
adjustment of the underlying jurisdictional dispute between the
two Unions.
We find, accordingly, that the Pipefitters (Locals 428 and 420)
was not lawfully entitled to require any of the above employers
and are not lawfully entitled to require any employer to assign
the disputed rigging work to members of the Pipefitters rather
than to employees assigned by the employers to perform such
work. However, we are not, by this action, to be regarded as
"assigning " the work in question to the Riggers.21
DETERMINATION OF DISPUTES
Upon the basis of the foregoing findings, and the entire record
in this case, the Board makes the following determination of
disputes pursuant to Section 10 (k) of the Act:
1. United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, Local 428, AFL, and United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, Local 420, AFL, and its agents, are
not and have not been lawfully entitled to force or require any
employer in the Philadelphia area to assign the rigging work on
any equipment to members of Locals 428 and420 rather than to
members of Riggers and Machinery Movers, Local Union 161,
affiliated with the International Association of Bridge, Structur-
al and Ornamental Iron Workers, AFL.
2. Within ten (10) days from the date of this Decision and
Determination of Disputes, the Respondents (Locals 428 and 420)
shall notify the Regional Director for the Fourth Region in
writing as to what steps the Respondents have taken to comply
with the terms of this Decision and Determination of Disputes.
Members Murdock and Beeson took no part in the consid-
eration of the above Decision and Determination of Disputes.
21 Ibid.