Plumbers, Local No. 155

National Labor Relations Board - Board Decisions

Feb 6, 1976

222 N.L.R.B. 796 (N.L.R.B. 1976)

796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada , Local No. 155 and Allied-Mc-
Carty Supply Co., Inc., d/b/a Allied/ Hussman and
International Union of Operating Engineers, Local
No. 6-6A-6B. Case 26-CD-116
February 6, 1976
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed-by Allied-McCarty Supply Co., Inc.,
d/b/a Allied/Hussman, herein called the Employer,
on May 10, 1975, alleging that United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Cana-
da, Local No. 155,' herein referred to as Plumbers,
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring the Employer to assign the work in dis-
pute to employees represented by Plumbers rather
than to employees represented by International
Union of Operating Engineers, Local No. 6-6A-6B,
herein called Operating Engineers.
Pursuant to notice, a hearing was held before
Hearing Officer William D. Levy on September 30,
1975. All parties were afforded an opportunity to be
present and heard, to examine and cross- examine
witnesses , and to adduce evidence bearing on the is-
sues. As discussed below, Respondent Plumbers
counsel and business manager walked out of the
hearing shortly after it opened. Thereafter, the Em-
ployer, Plumbers, and Operating Engineers filed
briefs. In addition, Plumbers has requested a hearing
de novo.
Pursuant to the provision 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.
Although a hearing was held as indicated above,
Respondent Plumbers contends that it was not af-
forded a full opportunity to be heard, to examine and
cross-examine witnesses , and to adduce evidence
bearing on the issues. In this connection, Respondent
asserts that the Hearing Officer erred in denying its
'Although the International Union was also named as a Respondent in
the original charge , it was never served with a copy of the charge or the
notice of hearing. Therefore , we grant the Employer's request to withdraw
the charge as it relates to the International.
request for a continuance due to the illness of coun-
sel.
Tom Gentry, counsel for Plumbers, sought a 45-
day postponement at the start of the hearing because
he was still recovering from heart surgery. The Hear-
ing Officer denied such request on the grounds that
the hearing had been postponed on three prior occa-
sions , and that Respondent Union had been advised
at the time of the last postponement order that no
further postponements would be granted. When the
Hearing Officer asked Gentry if he would stipulate
that Respondent is a labor organization within the
meaning of the Act, counsel replied that he was leav-
ing the hearing for health reasons. The Plumbers
business manager , Joseph Woodson, then informed
the Hearing Officer that he was not prepared to con-
tinue the hearing because he was incapable of repre-
senting his Local. Even though the Hearing Officer
called a brief recess in order to give Respondent an
opportunity to secure other representation, Woodson
failed to obtain new counsel and, subsequently, he
also left the hearing room.
The record in this proceeding reveals that the Re-
gional Director had postponed the hearing on three
different occasions for a total of 97 days. Even
though the first postponement resulted from the joint
request of Respondent and Employer, the final two
delays were at Gentry's request on account of his
recuperation from a heart operation. Four days be-
fore the instant hearing, Gentry told the Hearing Of-
ficer that he would probably be unable to represent
the Plumbers. The Hearing Officer then contacted
the Union's business manager and advised him the
hearing would be conducted as scheduled on Sep-
tember 30. Therefore, it is clear that Respondent
Plumbers had more than sufficient notice of
counsel's physical condition to obtain other repre-
sentation prior to the hearing.
According to Section 102.64 of the Board Rules
and Regulations, a Hearing Officer has the discretion
to continue the hearing or adjourn it to a later date
upon request for a postponement. Inasmuch as the
jurisdictional dispute herein, which receives priority
in processing over all other cases except those of like
character under Section 10(1) of the Act, had already
been delayed for 97 days, we find that the Hearing
Officer did not abuse his discretion in denying
Respondent's motion for an additional 45-day con-
tinuance. Accordingly, Respondent's request for a
hearing de novo is hereby denied.
The Board has also reviewed the other rulings
made by the Hearing Officer at the hearing and finds
that they are free from prejudicial error. They are
hereby affirmed.
Upon the entire record in this case, the Board
222 NLRB No. 127
PLUMBERS , LOCAL NO. 155 797
makes the following findings: for individuals represented by his Union. The Em-
ployer was willing to use members of the Plumbers to
I. THE BUSINESS OF THE EMPLOYER perform installation work for commercial refrigera-
The Employer 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 additional office in Little
Rock, Arkansas. It was stipulated that during the
past 12 months the Employer has purchased goods
and materials valued in excess of $50,000 from points
located outside the State of Arkansas. During the
same period of time, the Employer's gross volume of
business exceeded $500,000.
We find that Allied-McCarty Supply Co., Inc.,
d/b/a Allied/Hussman, is engaged in commerce
within the meaning of the Act and it will effectuate
the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Due to the absence of counsel , Respondent did not
stipulate as to the status of the labor organizations
involved herein . However, we find, based on the stip-
ulations by the same parties in a prior proceeding,2
that both the Plumbers and the Operating Engineers
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
On February 10, 1970, the Operating Engineers
was certified by the National Labor Relations Board
as the collective-bargaining representative for "all
service and installation employees employed by Al-
lied-McCarty." Thereafter, the Employer and the
Operating Engineers entered into a series of collec-
tive-bargaining agreements, the current agreement
being for a 2-year term expiring August 4, 1977. In
each of these agreements, the Employer recognized
the Operating Engineers as the exclusive bargaining
agent for all of its employees engaged in the new
construction, repair, and maintenance of refrigera-
tion equipment. These contracts have been extended
to cover employees at all branch offices of the Em-
ployer, including the Little Rock, Arkansas, office.
After the Employer opened the Little Rock facility
on April 15, 1974, Respondent's business manager,
Joseph Woodson, sought a meeting with representa-
tives of the firm to discuss employment opportunities
2 United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, Local No 155 (Allied-
McCarty Supply Co.), 215 NLRB No. 135 (1974).
tion equipment in the Little Rock area, but refused to
sign a collective-bargaining agreement.
The Employer then negotiated a contract with
Safeway for the installation and service of refrigera-
tion equipment for a new store under construction in
Little Rock. Since the Employer still would not exe-
cute a contract with the Plumbers, the Union com-
menced picketing the jobsite at the Safeway store in
July 1974. As a result of this action, the Operating
Engineers filed charges against the Plumbers. On De-
cember 16, 1974, the Board entered a decision in
Case 26-CD-108 that awarded the work in dispute to
the employees represented by the Operating Engi-
neers.3
Five months later, Employer was awarded a con-
tract to remodel the refrigeration equipment at -a
Kroger supermarket in Little Rock. The Employer
assigned this job to its own employees represented by
the Operating Engineers, and these employees began
work at the Kroger store on April 29, 1975.
According to the testimony of Wayne Leach, the
Employer's branch manager in Little Rock, Wood-
son contacted him on May 4 or 5, 1975, to inquire as
to who was going to perform the work on the Kroger
job. Leach stated that he informed the business man-
ager for the Plumbers that members of the Operating
Engineers would install the equipment, but the Em-
ployer would consider using Respondent's members
if additional men were needed. However, Woodson
was unwilling to permit the Plumbers to work on the
same job with Operating Engineers. Leach further
testified that during the course of this conversation
Woodson requested that the Employer use members
of the Plumbers to perform the work in dispute.
On May 9, 1975, a picket appeared at the Kroger
jobsite carrying a sign which read: "For information-
al purposes only. Plumbers and Steamfitters, Local
Union No. 155, wishes to inform the public, that Al-
lied/Hussman does not conform to the wages and
conditions established by Local 155 in its area."
Leach said the sign was similar to the one he had
seen at the Safeway store in Little Rock the previous
year. Employees of an electrical contractor assigned
to work at the same job subsequently refused to cross
the picket line. Thereafter, Kroger officials ordered
the Employer to remove its employees from the job-
site on May 12. The picketing continued until May
15 or 16, and ceased only after the Board sought a
temporary restraining order.
'Supra, fn. 2.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Work in Dispute
The work in dispute herein is the installation of
commercial refrigeration equipment and materials in
a Kroger supermarket located at 1100 East Roosevelt
Road in Little Rock, Arkansas, including the instal-
lation of copper liquid and vacuum lines between re-
mote condensers and internal evaporators in the re-
frigeration cases. This, in turn, involves welding of
copper tubing, connection of this tubing to the refri-
gerator and compressor, and charging the unit with
Freon to obtain the necessary temperatures.
C. Contentions of the Parties
At the prior hearing in Case 26-CD-108, the
Plumbers argued that area practice favors an award
of the disputed work to its members. We assume that
the Plumbers takes the same position in this proceed-
ing.
The Employer contends that the Plumbers violated
Section 8(b)(4)(D) of the Act by seeking to compel
the assignment of the disputed work to its members.
It further submits that the award of the disputed
work to employees represented by the Operating En-
gineers is appropriate in view of: (1) their possession
of the requisite skills, (2) efficiency and economy of
operation, (3) the Board's certification and the
Employer's own subsequent longstanding contractu-
al relationship with the Operating Engineers, (4) past
company practice, (5) the Employer's assignment of
the work, and (6) the Board's award of the disputed
work to the Operating Engineers in Case
26-CD-108.
Finally, the Employer suggests there is a real possi-
bility that the dispute will continue to recur at other
locations unless a broad award of the work is given.
It therefore desires that the Board extend the scope
of the award to cover all jobs performed by the Em-
ployer within the territorial jurisdiction of Plumbers
Local 155.
The position of the Operating Engineers is in
agreement with that of the Employer.
D. Applicability of the Statute
Before the Board may proceed to a determination
of a dispute under Section 10(k) of the Act, it must
be satisfied that there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated, and that
there is no agreed-upon method, which is binding on
all parties, for the voluntary adjustment of the dis-
pute.
The record indicates that the Plumbers, through its
business manager, sought and demanded from the
Employer assignment of the work in dispute on May
4 or 5, 1975. Thereafter, Respondent, in support of
its demand, picketed the project at the Kroger super-
market for approximately I week. When the electri-
cians on the -project refused to cross the picket line,
Kroger requested that the Employer remove its men
from the jobsite. At the hearing, the Employer's Lit-
tle Rock branch manager testified that Respondent
Plumbers was continuing to claim the disputed work
assigned to members of Operating Engineers.
In a jurisdictional context, the Board is not
charged with finding that a violation did in fact oc-
cur, but only that there is reasonable cause to believe
that there has been a violation of Section 8(b)(4)(D)
of the Act. We find there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated.
Finally, there is no evidence in this case that the
disputants are party to any procedure which could
result in a determination of the instant controversy
that would be binding on all.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors. As the Board has stated, the determination in a
jurisdictional dispute case is an act of judgment
based on commonsense and experience in weighing
these factors .4 The following factors are relevant in
making a determination of the dispute before us:
1. Board certifications and relevant
collective-bargaining agreements
The Operating Engineers was certified by the
Board on February 10, 1970, as the collective-bar-
gaining representative for "all service and installa-
tion employees employed by Allied-McCarty." Since
that time, Employer and Operating Engineers have
entered into a series of collective-bargaining agree-
ments covering all of the firm's locations. The most
recent agreement runs for a 2-year period and expires
on August 4, 1977. Under that contract, "the Compa-
ny recognizes the Union as the sole collective bar-
gaining agency for all its nonsupervisory employees
engaged in new construction, repair and mainte-
nance of refrigeration . . . equipment."
On the other hand, the Employer has refused to
become a party to an agreement with the Plumbers
4 N.L R.B. v. Radio and Television Broadcast Engineers Union s,t Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO (Cgtumbra Broad-
casting System], 364 U S 573 (1961); International Association of Machinists,
Lodge No 1743, AFL-CIO (J. A Jones Construction Company), 135 NLRB
1402 (1962)
PLUMBERS , LOCAL NO. 155
or to execute a letter of intent which would-effective-
ly bind the Employer to hire individuals furnished by
that Union under terms and conditions negotiated by
the Plumbers and several employers in the Little
Rock area.
Accordingly, we find that these factors favor
award of the disputed work to employees represented
by the Operating Engineers.
2. Employer practice and preference
Pursuant to the collective-bargaining agreement,
the Employer has historically assigned the work in
dispute to its employees represented by the Operat-
ing Engineers and has manifested a preference to
continue that assignment.' We therefore find that
this factor favors award of the disputed work to em-
ployees represented by the Operating Engineers.
3. Prior award by the Board
On December 16, 1974, the Board in Case
26-CD-108 awarded the work in dispute to employ-
ees represented by the Operating Engineers. The sole
difference in the two disputes is that here the Em-
ployer was remodeling existing equipment at the
Kroger store, whereas in Case 26-CD-108 the Em-
ployer was installing new equipment at a Safeway
supermarket. However, we do not think that this dis-
tinction requires a different result.
As a result, we find that our decision in Case
26-CD-108 favors an award of the disputed work to
employees represented by the Operating Engineers.
4. Industry and area practice
At the prior hearing, the Plumbers introduced evi-
dence to support its claim that area practice called
for individuals represented by the Plumbers to per-
form the disputed work. The record in Case
26-CD-108 reveals that there are three union con-
tractors in the relevant area who sell, install, and ser-
vice refrigeration equipment, In each case, the owner
of the business is himself a member of the Plumbers
and himself performs the disputed work. Here the
Operating Engineers representative testified that his
Union represented the employees of several other
contractors in the surrounding area that performed
similar work.
We therefore find that this factor is inconclusive
and does not favor an award to employees repre-
sented by either Union.
5 The only exception to this practice occurred at a store in Benton, Arkan-
sas, where the Employer assigned the work to members of the Plumbers in
5. Other factors
799
Other factors normally considered relevant, such
as skills and efficiency and economy of operations,
are of little aid in the resolution of this dispute. The
Plumbers contended in the Safeway dispute that its
formal apprenticeship program trains individuals in
the installation of commercial refrigeration equip-
ment. Although the Operating Engineers has no simi-
lar program, the Employer asserts that its members
possess the necessary skills to perform the work in
dispute. Moreover, the Employer contends that use
of plumbers on the Safeway job resulted in costly
warranty repair work for the firm over a 9-month
period. In addition, Leach testified that it is more
economical and efficient for the Employer to assign
the work in dispute to members of the Operating En-
gineers because they can be transferred among vari-
ous jobsites.
However, we find these factors to be inconclusive
and that they do not favor an award to employees
represented by either Union.
Conclusion as to the Merits of the Dispute
Upon consideration of all the relevant factors, we
conclude that the Employer's employees who are
represented by International Union of Operating En-
gineers, Local 6-6A-6B, are entitled to the work in
dispute. We reach this conclusion based on the
Board certification of the Operating Engineers, the
Employer's current collective-bargaining agreement
with the Operating Engineers, the prior award by the
Board in Case 26-CD-108,6 and the Employer's pref-
erence and past practice of assigning the disputed
work to these employees. Accordingly, we shall de-
termine the instant dispute before us by awarding the
work in question to employees represented by Inter-
national Union of Operating Engineers, Local
6-6A-6B, but not to that Union or its members. Ad-
ditionally, we find that the Plumbers is not entitled
by means proscribed under Section 8(b)(4)(D) of the
Act to force or require the Employer to assign the
disputed work to employees represented by it.
Scope of the Determination
Since we recently made an award of similar work
in a dispute between the same parties in Case
26-CD-108, the Employer requests that the Board
fix the scope of the award to cover all jobs performed
by the Employer within the territorial jurisdiction of
order to avoid an anticipated labor dispute and to meet the customer's
requirement that the work be completed expeditiously.
6 See fn 2, supra
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers Local 155. In circumstances such as the
present, where there is an indication that the dispute
is likely to recur, it has been the Board's policy to
issue an award broad enough to encompass the geo-
graphical area in which an employer does business
and the jurisdictions of the competing unions coin-
cide. Therefore, our determination will cover assign-
ment of the disputed work in the area in, which Al-
lied-McCarty operates and in which the geographical
jurisdictions of United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, Local No.
155, and International Union of Operating Engi-
neers, Local No. 6-6A-6B, coincide .7
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees of Allied-McCarty Supply Co., Inc.,
d/b/a Allied/Hussman, who are represented by In-
ternational Union of Operating Engineers, Local
6-6A-6B, are entitled to perform the work involved
in the installation of commercial refrigeration equip-
ment and materials, including the installation of cop-
7 Sheet Metal Workers Local Union No 85 (Kewaunee Scientific Equipment
Corporation), 198 NLRB 771 (1972).
per liquid and vacuum lines between remote con-
densers and internal evaporators in the refrigeration
cases on work performed by Allied-McCarty Supply
Co., Inc., d/b/a Allied/Hussman, wherever the juris-
dictions of International Union of Operating Engi-
neers, Local No. 6-6A-6B, and United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Cana-
da, Local No. 155, coincide.
2. United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of
the United States and Canada, Local No. 155, is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require Allied-McCarty Supply
Co., Inc., d/b/a Allied/Hussman, to assign the dis-
puted work described in paragraph 1 of this Determi-
nation of Dispute to employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Cana-
da, Local No. 155, shall notify the Regional Director
for Region 26, in writing, whether or not it will re-
frain from forcing or requiring Allied-McCarty Sup-
ply Co., Inc., d/b/a Allied/Hussman, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign the
above-described disputed work to employees repre-
sented by it rather than to employees represented by
International Union of Operating Engineers, Local
No. 6-6A-6B.