Enterprise Assn. of Steam, Etc., Local 638

National Labor Relations Board - Board Decisions

Apr 27, 1962

136 N.L.R.B. 1641 (N.L.R.B. 1962)

ENTERPRISE ASSN. OF STEAM, ETC., LOCAL 638 1641
APPENDIX
NOTICE TO ALL MEMBERS OF ENTERPRISE ASSOCIATION OF STEAM, HOT WATER,
HYDRAULIC, SPRINKLER, PNEUMATIC TUBE, ICE MACHINE AND GENERAL PIPE-
FITTERS OF NEW YORK & VICINITY, LOCAL UNION No. 638A OF THE UNITED
ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE-
FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT engage in, or induce or encourage employees of Dierks Heating
Co., Inc ., Union Installation , Inc., or of any other person engaged in commerce
or in any industry affecting commerce doing business with the Department of
Correction, New York City, to engage in, a strike or a refusal in the course of
their employment to use, manufacture , process, transport , or otherwise handle
or work on any goods , articles, materials , or commodities or to perform any
services ; or threaten , coerce, or restrain the Department of Correction, New
York City, Dierks Heating Co., Inc., Union Installation , Inc., or any other
person engaged in commerce or in an industry affecting commerce doing busi-
ness with the Department of Correction, New York City; with an object of
forcing or requiring the Department of Correction , New York City, to cease
doing business with All-Boro Air Conditioning Corp., or of forcing or requiring
Dierks Heating Co., Inc., Union Installation , Inc., or any other person doing
business with the Department of Correction , New York City, to cease doing
business with the Department of Correction , New York City.
ENTERPRISE ASSOCIATION OF STEAM , HOT WATER,
HYDRAULIC, SPRINKLER, PNEUMATIC TUBE, ICE
MACHINE AND GENERAL PIPEFITTERS OF NEW
YORK & VICINITY, LOCAL UNION No. 638A OF
THE UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPEFIT-
TING INDUSTRY OF THE UNITED STATES AND
CANADA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
Enterprise Association of Steam , Hot Water, Hydraulic , Sprin-
kler, Pneumatic Tube , Ice Machine and General Pipefitters
of New York & Vicinity , Local Union No. 638 , of the United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada,
AFL-CIO I and All -Boro Air Conditioning Corp . and Local 295,
International Union of Operating Engineers , AFL-CIO. Case
No. 2-CD-217. April 27, 1962
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10(k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in an
i There Is confusion In the record in its entirety as to the precise designation of the
labor organization named Respondent in the charge It is sometimes referred to as
Local 638 and sometimes as Local 638A It seems the "A" designation is not part of
the regular name of the union, but rather a designating letter for a steanifitter section
of the group It is clear that a single union is involved, and it will be referred to herein
as Local 638, In accordance with the request of its officers.
136 NLRB No. 147.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice within the meaning of paragraph (4) (D) of
Section 8(b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair labor practice shall have
arisen. . .."
On June 21, 1961, All-Boro Air Conditioning Corp., herein called
All-Boro or the Company, filed with the Regional Director for the
Second region a charge alleging that Enterprise Association of
Steam, Hot Water, Hydraulic, Sprinkler, Pneumatic Tube, Ice Ma-
chine and General Pipefitters of New York & Vicinity, Local Union
No. 638, of the United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, herein called Local 638, had violated Section
8(b) (4) (D) of the Act by inducing and encouraging employees to
engage in a strike or refusal in the course of their employment to
handle or work on certain projects or perform certain services for the
purpose of requiring All-Boro to assign installation and refrigera-
tion work at the warehouse of the New York City Correction Institu-
tion for Men, Rikers Island, Bronx, New York City, to members of
Local 638 rather than to its own employees, who are members of
Local 295, International Union of Operating Engineers, AFL-CIO,
herein called Local 295.
Thereafter, pursuant to Section 10(k) of the Act, and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, as
amended, the Regional Director investigated the charges and pro-
vided for an appropriate hearing upon due notice to all the parties.
The hearing was held before Carl G. Cohen, hearing officer, on Octo-
ber 23, 1961. Local 295 was permitted to intervene as a party in
interest to the dispute. All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the issues. The rulings
of the hearing officer made at the hearing are free from prejudicial
error and are hereby affirmed. None of the parties filed briefs with
the Board.
Upon the entire record in the case, the Board makes the following
findings :
1. All-Boro Air Conditioning Corp., a New York corporation, main-
tains its principal office and place of business in the County of Bronx,
New York, where it is engaged in the installation and maintenance
of air-conditioning and refrigeration equipment and related services.
During the year 1960 it purchased and received in New York City
shipments of goods, materials, and equipment with a value in excess
of $50,000 from suppliers located in the State of New York who had
received such goods, materials, and equipment in interstate commerce
from points in States other than the State of New York. We find that
the Company is engaged in commerce and that it will effectuate the
policies of the Act to assert jurisdiction.
ENTERPRISE ASSN. OF STEAM, ETC., LOCAL 638 1643
2. Enterprise Association of Steam, Hot Water, Hydraulic, Sprin-
kler, Pneumatic Tube, Ice Machine and General Pipefitters of New
York & Vicinity, Local Union No. 638, of the United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL-CIO, and Local 295,
International Union of Operating Engineers, AFL---CIO, are labor
organizations within the meaning of the Act.
3. The dispute :
a. The basic facts
In 1961, the Department of Correction, City of New York, awarded
a contract to All-Boro to replace food refrigeration equipment at a
food storage warehouse on Rikers Island, New York. The work re-
quired demolition of an existing brine refrigeration unit and installa-
tion of a Freon-12 unit. The equipment for the Freon unit is pre-
fabricated, and the major portion of All-Boro's work involved the
connection of the evaporator and condensing -units by means of pipe.
The pipe is connected by soldering (sweating). Work started on
April 24, 1961.
Shortly thereafter, Murray, business agent of Local 638, advised an
official of New York City that his union had jurisdiction over the
work All-Boro's employees were doing. On April 26, All-Boro was
ordered by the city to discontinue its operations. The Company re-
sumed work 2 weeks later and continued a while longer. On June 19
the city held it had defaulted under the contract; the work was again
resumed in August.
During this period, two other contractors were also doing contract
work for the city on Rikers Island. Dierks Heating Co., Inc., was
carrying out a heating and refrigeration job in connection with an
addition to the city penitentiary and Union Installation, Inc., was
replacing refrigeration equipment in the hospital building. Both
these companies employed steamfitter and plumber members of Re-
spondent Local 638. Part of the work they were doing (the record
does not show exactly what portion ) was precisely like that of
All-Boro's employees-sweating and joining pipe.
Dierks' and Union's employees, represented by Respondent Local
638, went on strike in the beginning of June and continued their work
stoppage until June 21,1961.
b. Contentions of the Parties
All-Boro, who filed the charge in this case, defends its assignment
of the work and urges an affirmative award to its own employees pri-
marily on the ground that their skill and ability suffice to satisfy its
business requirements . It contends that for this Board to make a
contrary assignment would be an unwarrented interference with the
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's contractual arrangements with Local 295 and that what-
ever other contractors may find expedient or whatever may be the
general practice in the area are not relevant considerations.
Respondent Local 638 essentially rests its claim on the fact that
the work of sweating and joining pipe is, by its very nature, pipe-
fitters' work ; that such work has almost universally been performed
by pipefitters in the New York area and elsewhere; and that Local
638's attempt to obtain this work for its members was , therefore, no
more than an honest desire to continue a fundamental work juris-
diction tradition.
Local 295 contends that it is entitled to the work because its mem-
bers are capable of performing it and regularly do so ; because the
Employer is satisfied with its members ' work and wishes to retain
them; and because it is the recognized majority representative under
an effective collective-bargaining agreement.
c. Applicability of the Statute
Section 10 (k) of the Act empowers the Board to hear and deter-
mine the dispute out of which a Section 8(b) (4) (D) charge has
arisen. However, before making a determination of the dispute, the
Board is required to find there is reasonable cause to believe that
Section 8(b) (4) (D) has been violated.
Included in the evidence offered and received at the hearing before
the hearing officer in this proceeding was the complete transcript of
testimony in an earlier proceeding , Case No. 2-CC-639. There All-
Boro charged this same Respondent Union with having violated
Section 8(b) (4) (B) of the Act. The hearing on that complaint was
held before Trial Examiner James F. Foley on October 2, 1961.
The witnesses at that hearing testified on the question whether agents
of Local 638 had induced the June strike by its members employed by
Dierks and Union, and with respect to the object of the strike. The
testimony was conflicting, and the Trial Examiner, resting upon that
entire record and his observation of the witnesses , made precise reso-
lutions of credibility and set out definitive findings of fact. Among
his factual findings are the following :
That Murray intimated to him [Batka, chief architect of the
New York City Department of Correction] that he would pull
the employees of Dierks Heating and Union Installation off the
jobs they were doing if members of Respondent Local 638A did
not get the work the members of Local 295 employed by All-Boro
were doing.
*
Murray in a telephone conversation with him [Weitz, senior
engineer , New York City Department of Correction] on May 12
ENTERPRISE ASSN. OF STEAM , ETC., LOCAL 638 1645
and May 15, 1961, said that the work being done by Dierks Heat-
ing and Union Installation on Rikers Island would stop unless
the "correct craft" was assigned to the work All-Boro was doing.
I also conclude and find that Murray planned to call Respondent
Local 638A and its members out on strike if his other efforts
did not result in All -Boro 's work being assigned to members of
Respondent.
The foregoing findings, as well as all others made by Trial Ex-
aminer Foley in Case No. 2-CC-639, together with the credibility
resolutions he reached, have been adopted without modification by the
Board in All-Boro Air Conditioning Corp., 136 NLRB 1631, issued
today.
Upon the entire record before us, we find that there is reasonable
cause to believe that Local 638 induced the employees of Dierks and
Union to engage in a strike with an object of forcing All-Boro to
assign work on its Rikers Island contract to members of Local 638
rather than to members of Local 295, and therefore that a violation of
Section 8(b) (4) (D) has occurred. Accordingly, we find that the work
dispute is properly before the Board for determination under Section
10 (k) of the Act.
Merits of the Dispute
The significance and weight to be accorded the facts pertinent to
the dispute in this case can best be appreciated in the light of the
precise character of the work in dispute. All-Boro's business is to
"install air conditioning and refrigeration equipment." The actual
work duties of its employees were described by the company president
as "primarily, the major portion of the work is copper pipe, sweating
copper piping, joining to a tie-in the various sections of equipment
... using soldering pipe together. . . ." In terms of job title, or
classification, its employees are called "mechanics" and "apprentices"
in the contract with Local 295. It is not, nor could it be contended,
that this work is not included among the skills and duties traditionally
found among plumbers and pipefitters 2 In his attempt, before call-
ing the strike, to convince Rosen, the president of Local 295, that
this work should be surrendered to pipefitters who are members of Lo-
cal 638, Murray, business agent of the latter, appealed to higher offi-
cials of the International Union of Operating Engineers, Mr. Kenney,
its international representative, and Mr. Nolan, its regional director.
Nolan agreed with Murray, and informed Rosen and Valenti, the
"'The Dictionary of Occupational Titles ," vol. I, 2d ed, 1947, at p. 978 , describes a
Pipefitter Ammonia ( Const. ) as follows: "Erects and maintains all pipe work required
in connection with the ammonia system of a refrigeration plant, installing the piping
according to layout drawings "
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business agent of Local 295, that in the opinion of the regional di-
rector this was regular pipefitting work which the members of Local
638 are entitled to perform.'
It is clear, therefore, that we are not here concerned with a dispute
between operating engineers as a skilled-craft category of employees,
on the one hand, as against plumbers and pipefitters, a different and
in itself distinctive class of workmen on the other. The words "op-
erating engineers" appear to have been used in this proceeding as a
descriptive phrase only because Local 295 is chartered by the Inter-
national Union of Operating Engineers. Nevertheless, although the
work in dispute bears no relationship to the traditional duties and
skills of engineers, we are essentially charged with responsibility to
decide which of two groups of employees is entitled to the work. Ac-
cordingly, the name of the incumbent union is of little consequence.
As the Board recently stated, decisions on the merits of jurisdic-
tional disputes under Section 10(k) must necessarily be predicated
upon "experience and commonsense" with "all relevant factors" being
accorded that measure of weight which under the totality of circum-
stances of any particular situation they in justice and fairness merit.'
An affirmative award in favor of the mechanics working for All-
Boro would be supported by the fact that they are apparently capable
of satisfactorily performing this elementary part of the plumbing
and pipefitting craft. The record in no way indicates that in perform-
ing this work they also are required to perform, or are capable of
performing, a fuller gamut of the specialized skills usually possessed
and exercised by journeymen plumbers and pipefitters either in the
construction industry generally or in the air-conditioning and refrig-
eration aspects of that industry. Also pertinent here is the fact that
these mechanics have been represented by Local 295 since April 1960,
when All-Boro joined the Association of Master Refrigeration and
Air Conditioning Contractors, Inc. Moreover, the collective-bargain-
ing contract between that association and Local 295 is dated December
1958. The record does not show how many contractors like All-Boro
form this association, but it would appear, from its name alone, that
mechanics of this type who sweat and join pipe are also found on
other projects in the New York City area and are also represented by
Local 295 under the ostensibly multiemployer contract.
Equally pertinent to the merits of the dispute, and persuasively sup-
porting the work claim of Local 638, is the clear and uncontradicted
a Murray's uncontradicted testimony on this point was*
. Kenney told me that they agreed the work was ours, I did get ahold of Vic
Nolan ; I met him up at the Building Trades Employees Association there, and lie
reaffirmed to me his decision , that the work belonged to the fitters, and lie also told
me that Mr. Rosen was notified that the work belonged to the fitters.
4 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Con-
struction Company ), 135 NLRB 1402.
ENTERPRISE ASSN. OF STEAM, ETC., LOCAL 638 1647
evidence that that Union has long represented regular and skilled
journeymen in this craft throughout the building and construction
industry in this area for many years. Indeed, its multiemployer con-
tract with the Mechanical Contractors Association of New York,
received in evidence, expressly covers not only the pipe joining and
sweating work involved in this dispute, but also all of the ramified
and most complex aspects of the plumbing and pipefitting trade. Its
representative status on behalf of such journeymen dates back as far as
1914, if not longer.
It also appears that All-Boro itself used pipefitters, members of
Local 638, from 1956 to 1959; during that period it recognized Local
638 as representative of its employees and was bound by a regular
collective-bargaining agreement with it.
These are the sole relevant record factors upon which our deter-
mination must be based. No other significant considerations were
advanced by the parties; the basic facts are simple and in no material
sense disputed. We do not have the benefit of any decisions by im-
partial arbitrators or by the National Joint Board for Settlement of
Jurisdictional Disputes in the Building and Construction Industry
as partial guidelines. This, of course, is because the dispute here is
not really between operating engineers and plumbers or pipefitters.
When the regional director of the Operating Engineers International
Union agreed with the Local 638 official, Murray, that this work be-
longed to Local 638, the true intendment of his ruling could only have
been that the Operating Engineers, as a traditional representative
of employees working as engineers, ought not represent plumbers or
pipefitters. His expert opinion was not directed to the merits of com-
peting claims for pipefitting work where lesser and higher skilled
workmen quarrel over the right to do the simpler forms of the work
of their trade.
We view the dispute to be decided here as a narrow one, limited to
the work performed by these mechanics on the Rikers Island project
of All-Boro, and as involving only the lesser skilled work which the
record shows they perform. As the mechanics employed by All-Boro
are sufficiently skilled to perform the work in question, as the Com-
pany has assigned the work to them, as they have been represented by
Local 295 for over a year as of the date of the hearing, as there is
evidence of some area practice of the use of such mechanics for this
type of work in the New York City area, and as the current assignment
to them comports with and is supported by a regular collective-
bargaining agreement in effect for several years, we shall determine
the dispute in favor of the mechanics and apprentices presently per-
forming the work. In making this determination, we are assigning
the disputed work to the employees of All-Boro represented by Local
295, and not to Local 295 Operating Engineers, or to its members.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the above, we find that Local 638 was not and is not
entitled by means proscribed by Section 8(b) (4) (D) to force or re-
quire All-Boro to assign the work of connecting refrigeration equip-
ment on the Rikers Island project to its members rather than to All-
Boro's employees who are presently represented by Local 295.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in the
case, the Board makes the following Determination of Dispute pur-
suant to Section 10(k) of the Act:
1. Employees engaged in installing refrigeration equipment cur-
rently represented by Operating Engineers, Local 295, are entitled to
connect this equipment by means of the pipe on All-Boro's Rikers
Island project.
2. Enterprise Association of Steam, Hot Water, Hydraulic, Sprin-
kler, Pneumatic Tube, Ice Machine and General Pipefitters of New
York & Vicinity, Local Union No. 638, of the United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO, is not and has not
been lawfully entitled to force or require All-Boro Air Conditioning
Corp. to assign to Local 638 members the work of connecting air-
conditioning and refrigeration equipment.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Enterpirse Association of Steam, Hot Water, Hydraulic,
Sprinkler, Pneumatic Tube, Ice Machine and General Pipefitters of
New York & Vicinity, Local Union No. 638, of the United Association
of Journeymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFI.-CIO, shall notify the
Regional Director for the Second Region, in writing, whether or not
it will refrain from forcing or requiring All-Boro Air Conditioning
Corp. by means proscribed by Section 8 (b) (4) (D) to assign the work
in dispute to its members rather than to the employees of All-Boro
Air Conditioning Corp. represented by Local 295.
MEMBER FANNING took no part in the consideration of the above
Decision and Determination of Dispute.
Hercules Motor Corporation and International Union, United
Automobile, Aircraft and Agricultural Implement Workers of
America, AFL-CIO, and its Local 161 . Case No. 8-CA-2094.
April 30, 1962
DECISION AND ORDER
On May 9, 1961, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that
136 NLRB No. 145.