United Association of Journeymen, Local 155

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 753 (N.L.R.B. 1974)

UNITED ASSOCIATION OF JOURNEYMEN, LOCAL 155 753
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada , Local No. 155 (Allied-McCarty
Supply) and International Union of Operating Engi-
neers, Local No. 6-6A-6B and Allied-McCarty Sup-
ply, Inc., d/b/a Allied-Hussman.' Case
26-CD-108
located directly outside the State of Arkansas. During
the same period of time, the Employer's gross volume
of business exceeded $500,000. The parties stipulated,
and we find, that Allied-Hussman is an employer en-
gaged in commerce within the meaning of the Act. We
find that it will effectuate the purposes of the Act to
assert jurisdiction herein.
December 16, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
charges filed by International Union of Operating En-
gineers , Local No. 6-6A-6B (hereinafter called Oper-
ating Engineers), alleging that United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
Local No. 155 (hereinafter called Plumbers), violated
Section 8(b)(4)(D) of the Act. A duly scheduled hear-
ing was held before Hearing Officer Edward J. Fonti on
August 20 and 21, 1974. All parties appeared and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bear-
ing on the issues . Thereafter, Operating Engineers filed
a brief.
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 reviewed the, rulings made by the
Hearing Officer at the hearing and finds that they are
free from prejucicial error. They are hereby affirmed.
Upon the entire record in this case, including the afore-
mentioned brief, the Board makes the following find-
ings:
I THE BUSINESS OF THE COMPANY
The parties stipulated, and we find, that Allied-
McCarty Supply, Inc., d/b/a Allied-Hussman, is a
Missouri corporation engaged in the sale, installation,
and service of commercial refrigeration equipment,
with its main office located in Joplin, Missouri, and an
office located in Little Rock, Arkansas. During the
12-month period immediately preceding the hearing
held herein, a representative period, Allied-Hussman
purchased and received at its Little Rock office goods
and services valued in excess of $50,000 from points
The Employer's name appears as amended at the hearing
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that both Plumb-
ers and Operating Engineers are labor organizations
within the meaning of Section 2 (5) of the Act.
Ill THE DISPUTE
The work here in dispute, as more fully set forth
below, involves the installation of refrigeration equip-
ment and related items at a Safeway store under con-
struction in Little Rock, Arkansas.
A. Background and Facts of the Dispute
On February 10, 1970, Operating Engineers was cer-
tified by the National Labor Relations Board as the
collective-bargaining representative for "all service and
installation employees employed by Allied-McCarty"
following an election held in Springfield, Missouri. At
that time, those employees constituted the full comple-
ment of the individuals employed by Allied-Hussman
to perform the kind of work which is here in dispute.
Thereafter, Allied-Hussman and Operating Engineers
entered into a series of collective- bargaining agree-
ments, the current agreement being for an 11-month
term effective August 1, 1974. In each of these agree-
ments, the Employer recognized Operating Engineers
as the exclusive bargaining agent for all its employees
engaged in the new construction, repair, and mainte-
nance of refrigeration equipment, clearly encompassing
the work here in dispute.
As Allied-Hussman's business expanded, branch of-
fices were set up in other locations and the terms of the
foregoing contracts were applied to the activities un-
dertaken in the expanded territories.
In this fashion, Allied-Hussman opened its Little
Rock, Arkansas, branch office on April 15, 1974. Fol-
lowing the Employer's arrival in the Little Rock area,
Joseph Woodson, Plumbers business manager, sought
a meeting with representatives of the firm to discuss
employment opportunities for individuals represented
by his Union. A meeting was thus held between Wood-
son and W. O. Hutchins, president of Allied-Hussman,
on June 25, 1974. On that occasion, Woodson told
Hutchins that he would like Allied-Hussman to use
individuals represented by Plumbers to perform what-
ever installation work the Company had in connection
215 NLRB No. 135
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with its sale of commercial refrigeration equipment in
the Little Rock area and to sign a collective-bargaining
agreement or letter of intent covering the terms and
conditions under which such work would be done.
Woodson conditioned his willingness to furnish em-
ployees to perform installation work upon the Com-
pany's signing either of the aforementioned instru-
ments. Hutchins declined, advising Woodson of his
contractual relationship with Operating Engineers.
However, according to Woodson, Hutchins expressed
his desire to employ individuals furnished by Plumbers
to perform installation work, which requires less skill
than it does to service such equipment. Hutchins pur-
portedly told Woodson that he was content to rely on
Operating Engineers for servicing such equipment, al-
though the latter did not operate a formal hiring hall.
Thereafter, Allied-Hussman negotiated a contract
with Safeway for the installation and service of refriger-
ation equipment for their new store under construction
in North Little Rock. According to Woodson, Allied-
Hussman's Little Rock office manager called him on
July 11, requesting that two or three individuals be
furnished to work on the installation of the equipment
for the Safeway store. Woodson conditioned his com-
pliance with the aforementioned request upon the
Company's signing a contract or letter of intent. The
Company again declined to do so and shortly thereafter
began the installation work, using three employees who
were brought into Little Rock from other areas in
which the Employer conducted operations. These in-
dividuals were represented by Operating Engineers.
After work began on the aforementioned project,
Plumbers picketed the project on five separate occa-
sions during the month of July. Picketing ceased only
after partial work stoppages had been caused, Safeway
had instructed Allied-Hussman not to proceed with the
disputed work, and the latter had agreed to replace its
employees with individuals furnished by Plumbers,
pending final disposition of the instant dispute.
B. The Work in Dispute
C. Contentions of the Parties
Allied-Hussman contends that the Board's certifica-
tion and its own subsequent contractual relationship
with Operating Engineers favors assignment of the dis-
puted work to employees represented by that Union.
Further, the Company contends that Plumbers had
not, in the past, been able to furnish sufficient workmen
to satisfy needs as they arose in the Little Rock area.
With respect to the current controversy, the Com-
pany's Little Rock branch manager testified that it was
the intention of the Company originally to use a com-
posite crew, comprised of individuals theretofore em-
ployed by the Company, and represented by Operating
Engineers, along with others to be furnished by Plumb-
ers, to perform the work required on the Safeway job.
Operating Engineers, the Charging Party herein,
contends that Respondent Plumbers is a stranger to the
contractual relationship existing between the Employer
and Operating Engineers and that it does not have a
valid claim to the disputed work. Further, Operating
Engineers contends that it has historically represented
employees who perform work identical to that here in
dispute, having been originally chartered as a brother-
hood of Steam Engineers, whose constituency was in-
volved in "stationary" job assignments long before
"hoisting and portable" activities came into existence.
In agreement with the Employer, Operating Engineers
also asserts that on-the-job training constitutes the
most efficient means for developing the skills required
by the Employer for the performance of the work here
in question and therefore that individuals heretofore
employed by Allied-Hussman and represented by Op-
erating Engineers possess the necessary skills and are
sufficiently familiar with the Company's operations to
further justify assignment of the disputed work to
them.
Plumbers contends that area practice favors award
of the disputed work to the individuals that it repre-
sents. The Union also asserts that its formal apprentice-
ship program has turned out a sufficient number of
skilled employees to meet the demands of the Employer
in the Little Rock area.
The contract between Safeway and Allied- Hussman
involved the sale and installation of certain commercial
refrigeration equipment, such as frozen food cases,
medium temperature cases, and higher temperature
produce display cases. Work undertaken pursuant to
this contract, which is here in dispute, involves the
running of liquid and vacuum lines, comprised of cop-
per piping, between remote condensers and internal
evaporators in the refrigeration cases. This, in turn,
involves welding, soldering, evacuating and charging
the lines, checking for coolant leaks, and otherwise
setting controls and completing the start-up process.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated, and that
there is no agreed-upon method for voluntary adjust-
ment of the dispute.
The facts show that Allied-Hussman assigned the
disputed work to its employees who are represented by
Operating Engineers and that they desire to continue to
perform the aforesaid work.
UNITED ASSOCIATION OF JOURNEYMEN, LOCAL 155 755
Further, the record herein gives reasonable cause to
believe that Respondent Plumbers engaged in picketing
on severaloccasions in the month of July 1974, for the
purpose of forcing or requiring Allied-Hussman to
change its work assignment in favor of individuals
represented by that Union.
Finally, there is no evidence in this case that the
disputants are party to any procedure which could re-
sult in a determination of the instant controversy that
would be binding on all.
On the basis of the foregoing, we find reasonable
cause to believe that Section 8(b)(4)(D) of the Act has
been violated and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
E. The. Merits of the Dispute
Section 10(k) of the Act requires that. the Board
make an affirmative award of the disputed work after
giving due consideration to various relevant factors.'
As the Board has stated, its determination in a jurisdic-
tional dispute case is an act of judgment based on com-
monsense and experience in the weighing of these
factors.' We deem the following factors relevant in
the case now before us:
1. Collective-bargaining agreements
Allied-Hussman has, at all times material herein,
employed individuals on a permanent basis at its vari-
ous branch offices to perform the installation and serv-
ice work on refrigeration equipment, necessary in the
pursuit of its business. These individuals are repre-
sented by Operating Engineers pursuant to a Board
certification which issued in 1970. The conditions gov-
erning their employment are set forth in the current
agreement between Allied-Hussman and Operating
Engineers. ti
As the Company's activities expanded into other
geographic areas, it opened new branch offices and
hired additional people to install and service the equip-
ment it sold. These individuals were employed under
the terms and conditions of the current agreement be-
tween the Company and Operating Engineers.
On the other hand, the Company refused to become
party to an agreement with the Plumbers or to execute
a letter of intent which would effectively bind the Corh-
pany to employ individuals furnished by that Union,
under terms and conditions negotiated by Plumbers
and several employers in the locality. Consequently,
2 NLR B v Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U S 573 ( 1961).
3 International Association of Machinists, Lodge No 1743, AFL-CIO (J.
A Jones Construction Co), 135 NLRB 1402 (1962)
Allied-Hussman assigned the disputed work to its own
employees who were transferred to Little Rock and
began work under the terms and conditions of the con-
tract negotiated between, the Company and Operating
Engineers, as aforesaid.
Accordingly, we find 'that the operative contract fa-
vors the assignment of the disputed work to those in-
dividuals who are employed by Allied-Hussman and
are represented by Operating Engineers.
2. Industry and area practice
Plumbers introduced evidence to support its claim
that the practice in the area was for individuals repre-
sented by Plumbers to perform the disputed work. In
this connection the record reveals that there are three
union contractors in the area who sell, install, and
service refrigeration equipment. In each case the owner
of the business is himself a member of Plumbers and
himself performs the disputed work. In two such cases
the company does not employ others. Four members of
Plumbers find employment with the remaining firm.
Thus, a total of six individuals, representing three
"unionized" firms, perform work similar to that in
dispute in the Little Rock area under terms and condi-
tions of employment established by agreement between
those employers and Plumbers. By contrast, the dis-
puted work itself entails the employment of three in-
dividuals, half that upon which Plumbers relies to es-
tablish area practice. In these circumstances, we find
this factor to be inconclusive.
3. Other factors
Other factors normally considered relevant, such as
skills and efficiency and economy of operations, are of
little aid in the resolution of this dispute. Although,
unlike Operating Engineers, Plumbers maintains a for-
mal apprenticeship program which among other things
trains individuals in the installation of commercial re-
frigeration equipment, there was no convincing evi-
dence presented that either group of competing crafts-
men is more skilled than the other in performing the
disputed work. In this respect, there was countervailing
evidence which demonstrated that the skills acquired
by Allied-Hussman's own employees, in the course of
their on-the-job training, proved adequate to the Em-
ployer's needs.
Neither has it been persuasively shown that effi-
ciency and economy of operations favors either of the
competing groups. The Employer's assertion that, sev-
eral years before, Plumbers had failed to furnish the
Company a sufficient number of qualified employees to
perform work identical to that here in dispute is bal-
anced by that Union's assertion that it can presently
fulfill such needs and the Company's own admission
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it originally sought a composite group consisting
of its own employees and others furnished by Plumbers
to perform the work here in question. Thus, this factor
appears to be inconclusive.
Conclusions as to the Merits of the Dispute
Upon the entire record in this proceeding and the
foregoing consideration of all relevant factors, in par-
ticular the unrestricted scope of the certification issued
by the Board favoring Operating Engineers, the con-
tractual relationship between that Union and Allied-
Hussman , and the Employer's past practice of assign-
ing work identical to the disputed work to its
employees who are governed by the aforesaid contrac-
tual relationship, we conclude that employees of Al-
lied-Hussman who are represented by Operating Engi-
neers are entitled to the work in question and we shall
determine the dispute in their favor. In making this
determination, which is limited to the work here in
dispute, we award such work to the employees of Al-
lied-Hussman who are currently represented by Oper-
ating Engineers and not to Operating Engineers or its
members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, and on the basis of the forego-
ing findings and the entire record in this case, the Na-
tional Labor Relations Board hereby makes the
following Determination of Dispute:
1. Employees employed by Allied-Hussman, cur-
rently represented by Operating Engineers, are entitled
to perform the work of installing commercial refrigera-
tion equipment in the Safeway store under construction
in Little Rock, Arkansas, heretofore performed by
them.
2. Plumbers is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require the
Employer to assign the above-described work to in-
dividuals who are represented by that labor organiza-
tion.
3. Within 10 days from the date of this Decision and
Determination of Dispute, said Plumbers shall notify
the Regional Director for Region 26, in writing,
whether it will refrain from forcing or requiring the
Employer, by means proscribed in Section 8(b)(4)(D),
to assign the work in dispute to employees represented
by Plumbers rather than to those represented by Oper-
ating Engineers.