United Assn. of Journeymen, Local 412

National Labor Relations Board - Board Decisions

Nov 27, 1967

168 N.L.R.B. 494 (N.L.R.B. 1967)

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada, Plumbers & Steam
Fitters Local No. 412, AFL-CIO' and The Zia
Company 2 and International Union of Operating
Engineers , Local 953, AFL-CIO.3 Case
28-CD-82
November 27, 1967
tuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find, that the
Pipefitters and the Engineers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed by the Zia Company, alleging
a violation of Section 8(b)(4)(D) of the Act by the
Pipefitters. The charge alleges, in substance, that
the Pipefitters threatened, coerced, and restrained
the Employer, and induced and encouraged em-
ployees to cease work, with an object of forcing or
requiring the Employer to assign particular work to
employees represented by the Pipefitters rather
than to employees represented by the Engineers.
Pursuant to notice, a hearing was held before Hear-
ing Officer William T. George, Jr., on July 5, 1967.4
Thereafter, the Employer 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
powers in connection with this case to a three-
member panel.
All parties were represented at the hearing and
were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to adduce
evidence bearing on the issues. The rulings of the
Hearing Officer made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Zia Company, which has its principal office
in Albuquerque, New Mexico, is engaged, under
contract with the National Aeronautical and Space
Administration (NASA), in performing main-
tenance and technical support work at NASA's
White Sands Test Facility. During the calendar
year immediately preceding the hearing, the Em-
ployer purchased, from various points located out-
side the State of New Mexico, goods and materials
valued in excess of $50,000, which were shipped to
White Sands. The parties stipulated, and we find,
that The Zia Company is engaged in commerce
within the meaning of the Act, and that it will effec-
Herein called the Pipefitters
z Herein called Zia or the Employer.
III. THE DISPUTE
A. The Work In Issue
The work in dispute is the replacement of flex
lines, and some existing hard lines, on the steam
modules of the altitude simulation system located
at the Employer's White Sands Test Facility.
H . The Basic Facts
Since approximately 1946 , the Employer has had
contracts with both the Pipefitters and the En-
gineers, and has recognized those Unions as
representatives of its employees classified as
pipefitters and engineers , respectively . In connec-
tion with its work at White Sands, as well as at other
projects , the Employer has used varying types of
steampowered generating engines. The parties are
substantially in agreement , however, that the engine
or module involved in this dispute , while identical
in function to other steampowered generating en-
gines, and employing the same principle of genera-
tion , is unique , at least in this Employer 's opera-
tions, in its application of that principle , through the
physical design of the engine.
The particular generating unit of the altitude
simulation system here involved consists of three
engines or generators , connected to a common
system of steampipes called a plenum . The plenum
is so constructed that more than three engines can
be used in the system . At White Sands the Em-
ployer has two "spare" engines.
As this generating system was unique and new,
numerous changes in the connecting lines from the
engines to the plenum , and from the engines to the
control and pressure valves, were made over a
period of time. In fact, in contemplation of such
changes, certain connecting lines had been
originally installed as "flex" lines. During the early
days of the use of this generating system, it was
necessary to change the position of many of the
flex lines, and also to reposition many of the "hard"
lines. When the system was finally smoothed out,
NASA asked that the flex lines be replaced with
hard lines, and that the existing hard lines be
checked for proper fit and shape and, whereever
necessary or advisable , replaced.
3 Herein called the Engineers.
4 All dates herein refer to 1967
168 NLRB No. 69
UNITED ASSN . OF JOURNEYMEN , LOCAL 412 495
With NASA's request in mind, the Employer is-
sued a "work order," specifying which lines were to
be replaced. The work was assigned to engineers.
The Pipefitters immediately protested. The En-
gineers filed a charge with the Board, alleging a
violation of Section 8(b)(4)(D) of the Act by the
Pipefitters. On January 5, the Employer met with
the Engineers and Pipefitters, gave its reasons for
choosing engineers, but asked the two Unions to try
to settle the dispute. On January 16, the Pipefitters
walked off the job. D. S. Estes, head of the Em-
ployer's labor relations department, testified that he
called the Pipefitters' headquarters, and was told by
Business Manager Sanders that he had not been in-
formed of the walkout, but he expected the men
wouldn't be back until"they get all this pipe work
back." On January 19, the Employer filed the
charge that initiated this proceeding. The Em-
ployees returned to the job on January 19 or 20.
On January 25, the presidents of the Engineers'
and Pipefitters' Internationals met. The Engineers
thereafter informed the Regional Director for Re-
gion 28 that the Pipefitters "recognized ... jurisdic-
tion" of the Engineers at White Sands, and asked
that its charge be withdrawn. The Regional
Director granted the request, but, after investiga-
tion, issued notice of hearing on the instant charge.
There was no picketing, and the job appears to have
been completed.5
or replacement of a given pipe or pipes necessary to
allow an engine to remain in operation without shut-
down. It urges that the Board accept what it argues
is a longstanding and well-understood distinction in
the Employer's work assignments. Where a repair
is made without issuance of a work order, the work
is conceded to be engineers' work; where a specific
work order is issued, where the repair is called
"capital," or calls for a "configuration change,"
then the work is understood to be pipefitters' work.
There was a "configuration change" work order is-
sued on the job in question, thus making the work
"capital." Thus, the Pipefitters argues, engineers
had not been performing the work without protest,
as the work it had been doing on this system, as well
as the related systems it refers to, was routine and
necessary maintenance. Further, it points to its con-
tract, which grants it all work under its "craft ju-
risdiction."
The Employer agrees with the Pipefitters, but
would add that its choice of engineers was, in any
event, made in good faith, was more logical
economically, and was not out of keeping with its
contracts with either of the Unions.
I
C. Contentions of the Parties
The Engineers argues that engineers are entitled
to perform the work because the Employer has as-
signed it to them and has been satisfied with their
performance; it is more economical to employ them
for the work; the work is in the nature of main-
tenance, which is their work under the terms of its
contract with the Employer; they have always per-
formed work of a similar nature on other types of
generating systems; and they performed work
identical to that here in question, on this very
system, for several weeks without protest by the
Pipefitters.
The Pipefitters admits that all routine main-
tenance and all ordinary maintenance necessary for
the continued operation of the generating system,
or any one of its engines, is engineers ' work. It ar-
gues, however, that the work here in dispute is
clearly not "routine" or "ordinary" maintenance,
but is in fact a complete repiping of the generating
system. It argues that it has always been entitled to
piping, repiping, and rebuilding or extraordinary
repair of piping systems that feed the steam to this
and related generating systems. It points out that
pipefitters installed the pipes here being replaced.
It never has claimed the adjustment, readjustment,
D. Applicability of the Statute
The charge herein alleges a violation of Section
8(b)(4)(D ) of the Act. The record shows that the
Pipefitters demanded the work after the Employer
had assigned it to engineers , and that all pipefitters
whom it represented walked off the job on January
16, and did not return until January 19 or 20. We
find that the pipefitters walked off in protest of the
Employer 's assignment of the disputed work to en-
gineers rather than pipefitters , and no assurances of
their return to the job were given.
We find that there is reasonable cause to believe
that a violation of Section 8(b)(4)(D ) has occurred
and that the dispute is properly before the Board for
determination under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work,
after giving due consideration to all relevant factors.
The following factors are asserted in support of the
claims of the parties herein:
1. Collective-bargaining agreements
Zia has contracts with both the Engineers and the
Pipefitters. The Pipefitters' contract covers "all
work performed by the Company under its [White
Sands Test Facility] Contract ... in the territorial
and craft jurisdiction of the . . ." [Pipefitters]. The
5 Testimony reveals that the job "was roughly two weeks, between two
and a half and three weeks "
496 DECISIONS OF NATIONAL
Engineers , as pointed out infra, argues that its con-
tract 's general assignment to it of all maintenance
work in connection with operation of the generating
system , covers the work in dispute . However, we
are cited to no specific contract language, and no
copy of the Engineers ' contract , or any portion
thereof , was entered into evidence herein.
There have been no Board certifications bearing
on the work in dispute, and we find nothing in the
contracts between the parties, or in the application
of their terms , of assistance in determining the
dispute.
2. Company, area, and industry practice
The Employer and the Engineers argue that com-
pany practice has been to assign to engineers work
similar to the work in dispute . The system here in-
volved is new and unique , however, and hence no
specific assignments were cited as to identical
work. The Pipefitters argues that , by analogy to
past company practice on related systems, installa-
tion, capital repair , and rebuilding work has always
been assigned to pipefitters. All parties argue,
without evidentiary support , that area and industry
practice support their respective positions.
3. Relative skills and efficiency of operation
Both the Engineers and the Pipefitters claim that
their respective members are better fitted, by ex-
perience, to perform the disputed work. Neither
claims superior skill, and the record is silent as to
apprenticeship programs or special training bearing
on the work in issue. Zia argues that its choice was
a logical one, economically speaking, as engineers
are on the job operating the system, and pipefitters
would have to be called. This is true, too, of course,
only if the disputed work were to be performed
while the system was in operation. It was per-
formed, however,- while the system was out of
operation.
We find nothing in the record with respect to the
skills of one craft as opposed to the other, or the
economy of employing one rather than the other,
that tends to support the claim of either, or the as-
signment of the Employer.
4. Method of settlement
The parties have no agreed-upon method of set-
tlement applicable to this dispute. All past disputes
between these parties at this project have been set-
tled by meetings of their respective Locals or, at
times, by their respective International presidents.
Conclusions as to the Merits of the Dispute
Upon consideration of all pertinent factors, we
shall assign the work in dispute to pipefitters. The
LABOR RELATIONS BOARD
parties have no agreed-upon method of settlement,
no collective-bargaining contract between the
parties, and no Board certification bears upon the
issue, and nothing with regard to area or industry
practice, or relative skills or efficiency of opera-
tions, lends determinative weight to the claim of
either party.
We find merit, however, in the evidence support-
ing the Pipefitters' argument that pipefitters have
traditionally performed, at least for Zia, what the
Company terms "capital" work, and that the work
here in dispute falls into that category. The record
shows that the generating system involved was shut
down in order to perform the disputed work, that
pipefitters did originally install the piping system
and plenum, and that pipefitters have been assigned
on related systems to perform all work of a capital
nature, at least on stationary (as opposed to porta-
ble) power systems. We find that the system here
involved was stationary, and that the work was in
the nature of a replacement or rebuilding of a piping
system (i.e., "capital", as opposed to routine
maintenance).6
We shall, accordingly, determine the existing ju-
risdictional dispute by deciding that pipefitters,
rather than engineers, are entitled to the work in
dispute. In making this determination, we are assign-
ing the disputed work to the employees of The Zia
Company who are represented by the Pipefitters,
but not to that Union or its members. In the
absence of any request for, or evidence in support
of, a broader order, we shall limit our award herein
to the particular controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the basis of
the foregoing findings and the entire record in this
proceeding , the National Labor Relations Board
makes the following Determination of the Dispute:
Pipefitters employed by The Zia Company, who
are represented by the United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
Plumbers & Steam Fitters Local No. 412,
AFL-CIO , are entitled to perform the work of
rebuilding or replacing flex lines and , where neces-
sary, hard lines on the steam modules of the altitude
simulation system located at the Employer ' s White
Sands Test Facility, when such rebuilding or
replacement is in the nature of capital work as op-
posed to routine maintenance work necessary for
the continued operation of such system.
6 The Engineers does not seriously dispute the fact that "capital" work
has been assigned to pipefitters