PLUMBERS, LOCAL UNION NO. 95
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of
the United States and Canada, Local Union No.
195, AFL-CIO and Warren Petroleum Compa-
ny and Fontenot Construction Company, Inc.
Cases 23-CD-414 and 23-CD-415
March 23, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Warren Petroleum Company,
herein called Warren, and Fontenot Construction
Company, Inc., herein called Fontenot, alleging
that United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada, Local Union
No. 195, AFL-CIO, herein called Respondent, had
violated Section 8(b)(4)(i) and (ii)(D) of the Act by
engaging in certain proscribed activities with an
object of forcing or requiring Warren and Fon-
tenot to assign certain work to employees it repre-
sents rather than to unrepresented construction
workers employed by Fontenot.
Pursuant to notice, a hearing was held before
Hearing Officer Donald R. Lewis on September
30, 1981. All parties appeared and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues. Thereafter, Warren filed a brief and
Respondent filed a statement of position. Respond-
ent filed a motion to quash the 10(k) notice of hear-
ing which was opposed by Warren.
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 Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
The Board has considered the briefs and the
entire record in this case, and hereby makes the
following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that Warren,
a division of Gulf Oil Corporation, is a Delaware
corporation engaged in the manufacture, purchase
for resale, and sale of liquefied gas products at its
facility located at Port Arthur, Texas. During the
past 12 months, a representative period, Warren
260 NLRB No. 156
purchased goods and materials from outside the
State of Texas valued in excess of $50,000, the
same goods and materials being shipped into the
State of Texas. During the same period of time,
Warren sold and shipped goods valued in excess of
$50,000 to points directly outside the State of
Texas from its Port Arthur, Texas, facility. During
the past 12 months, Warren also had sales exceed-
ing $500,000.
The parties further stipulated, and we find, that
Fontenot is a Texas corporation engaged in con-
struction and lease maintenance work with an
office and place of business in Winnie, Texas.
During the past 12 months, a representative period,
Fontenot purchased goods and materials from out-
side the State of Texas valued in excess of $50,000,
the same goods and materials being shipped into
the State of Texas. During the same period of time,
Fontenot had sales exceeding $500,000.
Accordingly, we find that Warren and Fontenot
are employers within the meaning of Section 2(2)
of the Act, and are engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Re-
spondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Warren's Port Arthur facility is a small marine
marketing terminal which is utilized to handle nat-
ural gas and naphtha product. I Warren contracts
out the vast majority of its construction and main-
tenance work at this facility to Fontenot, a general
contractor with approximately 50 employees, all of
whom are unrepresented. Fontenot derives about
20 percent of its gross income from its work for
Warren.
In December 1980, Fontenot began to install a
fire control system at the Port Arthur terminal.
Donald Rose, Warren's operations supervisor at
Port Arthur, testified at the hearing that, on Febru-
ary 11, 1981, two men who introduced themselves
as representatives of Respondent visited his office
and told him that Fontenot was performing "their
work" and they were not going to let any "out-of-
town non-union contractor take it" from them.
Rose replied that he was powerless to change the
Warren operates approximalely 63 facilities including 27 in the State
of Texas.
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assignment because it was made in Tulsa. Respond-
ent's representatives responded that they would
prevent completion of the work.
Thereafter, on March 2, 1981, a group of 25 to
30 individuals gathered at the Warren terminal gate
at the Port Arthur facility. Several of them shouted
that Fontenot was stealing work from them and
threatened to physically harm employees of Fon-
tenot and Warren. In fact, the demonstrators threw
rocks which struck several vehicles and one
Warren employee.2
On August 27, 1981, Respondent's business rep-
resentative, Jack Taylor, met with Fontenot's presi-
dent, Charles Fontenot, and told him that the Port
Arthur project was union work. He stated that
Fontenot would have to use union personnel, and
offered to supply him with employees. Taylor
stated that if Fontenot refused, union members
would "come out in force and show their disap-
proval." 3
The next day, approximately 10 members of Re-
spondent picketed the contractor's gate at the ter-
minal. Their signs suggested that Fontenot was
paying substandard wages to its employees. 4 Deb-
orah Cantrell, a supervisor in the Gulf Oil Compa-
ny's industrial relations department, asked several
picketers what the dispute was about. They re-
sponded that "that is our work" and that they
would not move until they got the work.
Members of Respondent picketed at the Port
Arthur facility each day through September 1,
1981.
B. The Work in Dispute
The work in dispute consists of the fabricating,
laying, and connecting of all pumps and piping and
appurtenances for a fire control system at the
Warren Petroleum Company's Port Arthur, Texas,
terminal located off Mexican Dock Road.
C. Contentions of the Parties
Respondent contends that there is no jurisdic-
tional dispute herein. Rather, Respondent asserts
that its sole objective has been to have Fontenot
recognize it as the collective-bargaining representa-
tive of its employees, and that it has not exceeded
the time period permitted for recognitional picket-
ing under Section 8(b)(7)(C) of the Act. On Octo-
ber 8, 1981, Respondent filed with the Board a
motion to quash the notice of 10(k) hearing.
' A number of the demonstrators wore clothing on which Respond-
ent's insignia was printed.
' This account of the conversation is based on Fontenot's testimony.
Fontenot's version does not differ substantially from Taylor's but is more
complete and comprehensible.
'The record does not precisely indicate the message on the signs.
Warren and Fontenot contend that the object of
Respondent's actions was to force or require them
to assign the work in dispute to its members, and
that, therefore, the statute applies to the facts of
this case. Warren and Fontenot further contend
that the work should be assigned to the unrepre-
sented construction workers employed by Fontenot
because of their skills, the economy and efficiency
of operations, past practice, and employer prefer-
ence.
D. Applicability of the Statute
Section 10(k) of the Act empowers the Board to
determine a dispute out of which an 8(b)(4)(D)
charge has arisen. However, before the Board pro-
ceeds with a determination of the dispute, 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, binding on all par-
ties, for the voluntary adjustment of the dispute.
Respondent contends that the statute does not
apply because it acted solely for recognitional pur-
poses. However, this contention is belied by state-
ments of its members and representatives prior to
and during the picketing. Thus, during their afore-
mentioned February 11, 1981, discussion with
Rose, Respondent's representatives asserted that
Fontenot was taking away "their work." Members
of Respondent echoed this theme during the March
2 demonstration when they shouted that Fontenot
was "stealing work from them." These statements
and the statements of the picketers to Contrell
clearly indicate that Respondent was attempting to
secure the work in dispute for its members.
Although Respondent's picket signs apparently
suggested only that Fontenot was paying substan-
dard wages, the record does not reveal any attempt
by Respondent to ascertain whether Fontenot was
actually paying its employees in conformity with
area wage standards. In these circumstances, the
wording of the signs does not convince us that the
picketing was for purposes of recognition.
Moreover, even if one object of Respondent's
conduct was recognitional, the circumstances sur-
rounding the picketing provide us with reasonable
cause to believe that another object of the picket-
ing was to force or require Fontenot or Warren to
assign the work to individuals represented by Re-
spondent. On the basis of the entire record, we
conclude that there is reasonable cause to believe
that Respondent violated Section 8(b)(4)(D) of the
Act.
No party contends that there exists an agreed-
upon method for the voluntary resolution of the
dispute which is binding on all of the parties. Ac-
cordingly, we conclude that the dispute is properly
1150
PLUMBERS, LOCAL UNION NO. 195
before the Board for determination under Section
10(k) of the Act and Respondent's motion to quash
the notice of the 10(k) proceeding is denied.
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 relevant factors.5
The Board has held that its determination in a ju-
risdictional dispute is an act of judgment based on
commonsense and experience, reached by balanc-
ing those factors involved in a particular case.6
The following factors are relevant in making the
determination of the dispute before us:
1. Certifications and collective-bargaining
agreements
The parties stipulated, and we find, that there is
no Board certification or bargaining order requir-
ing either Fontenot or Warren to bargain with Re-
spondent or to assign work to employees represent-
ed by Respondent or any other labor organization.
We also find that neither Fontenot nor Warren is a
party to a collective-bargaining agreement with
Respondent or any other labor organization cover-
ing the work in dispute. Accordingly, we find that
the factors of certification and contract are not rel-
evant herein.
2. Area practice
The record does not include any evidence with
respect to area practice. Accordingly, we find that
this factor is not relevant to our determination.
3. Relative skills, efficiency, and economy
The record indicates that members of Respond-
ent as well as the unrepresented construction work-
ers employed by Fontenot are capable of perform-
ing the welding and pipefitting work that is needed
for the project. Unlike welders who are members
of Respondent, however, the unrepresented em-
ployees are permitted to perform the other tasks
necessary to complete the fire control system, e.g.,
excavating trenches.' The record further indicates
that employees of Fontenot have previously per-
formed various projects at the Port Arthur termi-
nal and are familiar with the physical layout of the
plant, including the location of underground lines.
Moreover, at the time of the hearing, Fontenot's
employees had performed 90 to 95 percent of the
N.L.R.B. v Radio & Television Broadcast Engineers Union. Local 1212.
International Brotherhood of Electrical Workers. AFL-CIO [Columbia
Broadcasting System]., 364 U S 573 (1961)
s International Association of Machinists. Lodge No. 1743. AFL-CIO (J
A. Jones Construction Company), 135 NLRB 1402 (1962)
' Taylor testified that welders who are members of Respondent would
not clean out trenches. He stated that "they have laborers to do that "
project, and it would be inefficient to have the
work completed by a different contractor. Accord-
ingly, we find that the factors of economy and effi-
ciency favor an award to the unrepresented con-
struction workers employed by Fontenot.
4. Employer practice and preference
As previously noted, Fontenot has completed
numerous projects for Warren over the years at the
Port Arthur terminal and elsewhere. Representa-
tives of Warren indicated that they have been satis-
fied with Fontenot's previous work, and that the
work on the disputed project to date is acceptable.
The record indicates that Warren maintains a pref-
erence for its assignment to the unrepresented con-
struction workers employed by Fontenot. This
factor, therefore, favors an award to the unrepre-
sented construction workers employed by Fon-
tenot.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that the unrepresented construction workers
employed by Fontenot Construction Company,
Inc., are entitled to perform the work in dispute.
We reach this conclusion relying on efficiency and
economy of operations and Warren's practice and
preference. The present determination is limited to
the particular controversy which 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 Dispute:
1. Unrepresented construction workers employed
by Fontenot Construction Company, Inc., are enti-
tled to perform the work of fabricating, laying, and
connecting all pumps and piping and appurtenances
for a fire control system at the Warren Petroleum
Company's Port Arthur, Texas, terminal, located
off Mexican Dock Road.
2. United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada, Local Union
No. 195, AFL-CIO, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
or require Warren Petroleum Company and Fon-
tenot Construction Company, Inc., to assign the
disputed work 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
1151
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Pipe Fitting Industry of the United States and struction Company, Inc., by means proscribed by
Canada, Local Union No. 195, AFL-CIO, shall Section 8(b)(4)(D) of the Act, to assign the disput-
notify the Regional Director for Region 23, in ed work in a manner inconsistent with the above
writing, whether or not it will refrain from forcing determination.
Warren Petroleum Company and Fontenot Con-
