Plumbers Local 55

PLUMBERS LOCAL 55 901 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Plumbers Local 55, AFL-CIO and Midwest Prestressed Corporation and Local Union 894, Laborers' International Union of North America, AFL-CIO. Cases 8-CD-179 and 8-CD-185. August 17, 1970 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS MCCULLOCH, BROWN , AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing charges filed by Midwest Prestressed Cor- poration' and Local Union 894, Laborers Interna- tional Union of North America, AFL-CIO,2 alleg- ing that United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 55, AFL-CIO,3 had violated Section 8(b)(4)(ii)(D) of the Act. Pursuant to notice , a hearing was held be- fore Hearing Officer Charles Z. Adamson on vari- ous dates between December 15, 1969, and April 14, 1970. All parties appeared 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. Thereafter, the Laborers , the Plumbers, and Midwest filed briefs. 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 these cases 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 prejudicial error. The rulings are hereby affirmed . The Board has considered the parties' briefs and the entire record in these cases, and hereby makes the following findings: 1. THE BUSINESS OF THE COMPANY Midwest Prestressed Corporation is engaged in the manufacture, supply, and installation of precast concrete slabs used for' ceilings and floors, with its plant in Kent, Ohio. The situs of the dispute herein is a $2 million apartment complex being built by Bishop Park South Corporation' in Wickliffe, Ohio. Midwest contracted to supply and install 150,000 square feet of prestressed concrete slabs for Bishop Park at a cost of $235,000. In Case 8-RC-7576, the Board asserted jurisdiction over Midwest and, following an election, certified the Laborers on August 22, 1969, as the exclusive bargaining representative of Midwest's production and main- tenance employees, including erection crew mem- bers. As none of the parties herein has contested the Board's jurisdiction over Midwest, we find from the above that Midwest in engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Plumbers Local 55, AFL-CIO, and Local Union 894, Laborers' International Union of North America, AFL-CIO, are labor or- ganizations within the meaning of the Act. 111. THE DISPUTE A. Background and Facts of the Dispute The dispute involves the assignment of the task of drilling holes in prestressed, precast concrete slabs for pipes, etc., after the installation of the slabs as floors and ceilings at the apartment com- plex being built by Bishop Park known as Bishop Towers. The charges filed by Midwest on Sep- tember 245 and the Laborers on November 12 in Cases 8-CD-179 and 8-CD-185, respectively, al- lege, inter alia, that on or about September 8, and continuously thereafter, the Plumbers threatened, coerced, and restrained Midwest with an object of compelling Midwest to assign the drilling work then being performed by Midwest's erection crew em- ployees represented by the Laborers to employees represented by the Plumbers. The plumbers represented by Plumbers were employed by City Plumbing & Heating Company,6 Bishop Park's plumbing subcontractor. The record reveals that general contractor Bishop Park is engaged in erecting an apartment complex costing millions of dollars in Wickliffe, Ohio, a suburb of Cleveland. Only the third build- ing of the three-building project (building C) is in- volved in the instant jurisdictional dispute. On May 19, Bishop Park entered into a contract with Mid- west under the terms of which the latter was to ' Herein called Midwest. ' Herein called Laborers ' Herein called Plumbers. Herein called Bishop Park s All dates are 1969 unless otherwise indicated. ' Herein called City. 184 NLRB No. 105 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deliver and install approximately 150,000 square feet of prestressed, precast concrete slabs for use as floors and ceilings. The contract also required Mid- west to cast at its plant, or field cut at the building site, all openings for water closets, roof drains, and vent stacks; i.e., plumbing. The record indicates that Midwest was expected to cast the openings and deliver the slabs with holes for the plumbing al- ready made; the concrete slab contractor on buildings A and B of the project had precast the holes at its plant. However, Midwest chose to drill the 1,000 or more openings at the building site after the slabs were erected, using its erection crew employees represented by the Laborers. Midwest subcontracted the actual installation work, but assigned the hole-drilling task to its erection crew employees, who began work in late July 1969. Laborers, as noted above, was certified on August 22 as the exclusive representative of Midwest's production and maintenance employees, including, inter alia, erection employees. The cer- tification stated that the appropriate unit consisted of the named employee classifications at Midwest's Kent, Ohio, plant, but the erection employees herein worked at the Wickliffe building site. The site was within the territorial jurisdiction of Cleve- land Laborers Local 310, and not that of Local 894, but the former Union had not objected to Midwest's use of Local 894 members, apparently because Midwest was paying the going wages for the area. Midwest's erection crew employees worked without incident until Friday, September 19, when Mike Fischietto, the Plumbers steward, complained to City's foreman, Mike Cannavino, that the Laborers members employed by Midwest were doing work traditionally done by plumbers in the Cleveland area, since the holes were to be used for plumbing. All City employees doing plumbing work at Bishop Towers were represented by the Plum- bers. The next working day, September 22, City's field superintendent, Richard Lanese, after discussing the situation with Midwest's field superintendent, Frank Kruczek, and a representative of the Plumb- ers, transferred all the plumbers working on build- ing C to other jobs then being done by City, includ- ing buildings A and B. Kruczek was informed by Lanese that the plumbers would return the next day, when Plumbers Business Representative Richard Cleary would be present to settle the dispute. At the September 23 meeting, Cleary told Wil- liam Yeager, Bishop Park's representative, that the hole-drilling work belonged to plumbers since plumbing would pass through the holes. At some point in the meeting, Cleary informed Yeager that he could supply plenty of plumbers to do the drilling work, but could not guarantee any plumb- ers to complete the project if Midwest's laborers continued the drilling work. Cleary also showed Kruczek and Yeager a copy of a 1964 award by the National Joint Board for the Settlement of Jurisdic- tional Disputes which gave similar work to plumb- ers. Both Midwest and Laborers stated then, and contend here, that they are not stipulated to the Joint Board or bound by its decisions; Plumbers as- serts that it is bound by the decisions, which, it claims, are dispositive of the dispute herein. After the meeting, Midwest took its erection crew employees off the drilling work; City and Bishop Park negotiated a contract for the drilling work, which the plumbers began in early October. On September 24 Midwest filed the charges herein. Thereafter, on or about November 23, the parties agreed to permit Midwest's employees to resume drilling the holes pending final disposition of the matter. On January 16, 1970, after the hearing herein had begun, the Joint Board issued a one- page decision awarding the disputed work to the plumbers. B. The Contentions of the Parties Midwest and the Laborers contend that the Plumbers violated Section 8(b)(4)(ii)(D) of the Act by exerting coercive pressure directly upon Bishop Park and indirectly on Midwest to compel the latter to assign the drilling work previously given to laborers, to plumbers; viz, by threatening Bishop Park's representative, Yeager, that no plumbers would be available to complete the project if the laborers continued to drill the holes. They also contend that the work should be awarded to the laborers because the Laborers is the certified representative of the erection crew employees, the hole-drilling task at the building site is part of Mid- west's contract with Bishop Park, and considera- tions of economy and efficiency warrant awarding the work to laborers. he Plumbers asserts that the charges should be dismissed because neither Cleary nor any of its agents threatened, coerced, or restrained Midwest or Bishop Park in violation of the Act. Alternative- ly, the Plumbers urges the Board to give effect to the Joint Board's January 16, 1970, ruling and award the disputed work to plumbers. C. Applicability of the Statute Before the Board may proceed with the deter- mination of a dispute pursuant to Section 10(k) of PLUMBERS LOCAL 55 the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. Contrary to the contentions of the Plumbers, we find that the circumstances under which Plumbers Business Representative Cleary indicated to Bishop Park's representative, Yeager, that he could not guarantee any plumbers to complete the project if the laborers kept the drilling work, clearly establish a prima facie case supporting the alleged violation of Section 8(b)(4)(ii)(D) of the Act. The Plumbers argues that Cleary did not make such a threat, but the record contains the following testimony by Cleary: Mr. Yeager and I believe that the journeymen plumbers had already left [the September 23 meeting at the building site]. I think that Mr. Lanese was there and also that Mr. Kruczek was there, I think mainly because they were going to discuss the payment [for he drilling work]. But Mr. Yeager, who was chit-chatting with me, as I said-was all like off the cuff- and he said something about, "Well, now that you got the work, where are you going to get a plumber from?" and I said, "I can get all the plumbers you need." And I said, "As long as the work is mine, I can't guarantee any plum- bers if somebody else is doing our work." Since Midwest, a necessary party to the adjust- ment of the dispute, did not agree to submit the dispute to the Joint Board and was not otherwise bound by the Joint Board proceeding, we conclude that there was no voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act.7 From the above, and the entire record herein, we find, contrary to the Plumbers, that there is reasonable cause to believe that Section 8(b)(4)(ii)(D) of the Act has been violated and that the dispute is properly before the Board for determination. D. 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 all relevant fac- tors. In International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construc- tion Co. ),8 the Board set forth the following criteria to be considered in the making of an affirmative award in a 10(k) proceeding: ' See International Union of Operating Engineers, Local Union No 158, AFL-CIO (E. C. Ernst, Inc ), 172 NLRB No 192. ° 135 NLRB 1402. ° Id at 1410-11. 903 The Board will consider all relevant factors in determining who is entitled to the work in dispute, e .g., the skills and work involved, cer- tifications by the Board , company and industry practice , agreements between unions and between employers and unions , awards of ar- bitrators, joint boards, and the AFL-CIO in the same or related cases, the assignment made by the employer , and the efficient operation of the employer's business.9 1. Company and area practice The record reveals that Midwest is a relative newcomer to the precast, prestressed concrete slab field, having begun operations within the last few years. At Bishop Towers, and at another apartment complex then being supplied with Midwest slabs, Churchill Towers in Parma Heights, Ohio, the con- tract allowed Midwest to field cut all necessary holes, which it started to do in both cases, using its own erection crew employees represented by the Laborers. At Churchill Towers, which is not in- volved herein, and Bishop Towers, Midwest reas- signed the hole-drilling task to plumbers, despite its preference for laborers, after demands made by the Plumbers. The record is replete with evidence that skilled craftsmen in the Cleveland area cut the floor and ceiling holes through which their pipes, ducts, wires, etc., pass. However, the situation herein dif- fers from that where each craftsman drills his own holes as needed, since here all the openings were required to be made, under Midwest's contract with Bishop Park, at either the building site or Midwest's plant. In fact, City's contract with Bishop Park stated that all floor penetrations were to be made by "others. " In essence , the drilling of holes at the site is equivalent to the mass production of holes which Midwest could have performed at its plant had it not chosen to exercise its option under the contract and field cut the openings . Midwest, in either situa- tion, would have used the laborers represented by the Laborers and this company practice supports an award to laborers.'° 2. Employer's preference The fact that Midwest clearly prefers an award to the laborers is a factor which supports the assign- ment to laborers. 10 See United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , Plumbers Local No. 219 , AFL-CIO ( Price Brothers Company), 174 NLRB 547 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Efficiency and economy of operation The record reveals that more than 1,000 openings were to be drilled at Bishop Towers. Mid- west introduced evidence that one laborer could drill between 25 and 40 holes per day; the Plum- bers evidence indicated that a plumber could drill between 10 and 20 holes in the same period. The Plumbers major argument is that plumbers could lay out the markings for holes quickly and with greater accuracy than laborers because of the plumbers' familiarity with the work . But the record indicates that the plumbers ' foreman had to mark the holes for both laborers and plumbers. No evidence was introduced to show that the laborers' work caused problems ; in fact, Bishop Park's su- perintendent testified that he found no fault in their work . This is a factor supporting assignment of the disputed work to laborers. 4. Certification by the Board On August 22 the Laborers was certified as the collective-bargaining representative of all of Mid- west's production and maintenance employees, in- cluding, inter alia , the erection crew members who were assigned the hole -drilling task . While the cer- tification described the unit as being "at" Mid- west's plant, it seems clear that the employees per- forming the disputed work are within the unit covered by this certification even though they worked at the building site . This is still another fac- tor favoring an award to the laborers. 5. Agreement between the Unions and the award of the Joint Board The National Joint Board , on January 16, 1970, awarded the work in dispute to plumbers. This award is one" factor supporting the Plumbers claim to the work . However, since Midwest is not stipu- lated to the Joint Board and, in fact, is still negotiating an agreement with Laborers Local 894, the Joint Board award cannot be regarded as deter- minative of this dispute." Moreover , the award in pertinent part merely stated that: The work in dispute is governed by the deci- sion of record of May 5, 1926 and shall be as- signed to plumbers and steamfitters. In the absence of an explanation of the factors re- lied on by the Joint Board or supporting data that might enable us to determine the degree of deference that should be accorded the award, we cannot assign it as much significance as we have to Joint Board awards in other situations.12 6. Skills and work involved The record indicates that little more than 2 hours is required to learn how to safely and efficiently operate the diamond core drill used to make the openings involved herein . This is a neutral factor not supporting assignment of the disputed work to either laborers or plumbers. CONCLUSIONS On all the evidence , we determine the instant ju- risdictional dispute in favor of the laborers, and find that the employees of Midwest represented by the Laborers, rather than plumbers represented by the Plumbers, are entitled to perform the work of field cutting holes at the Bishop Towers construc- tion site . Company practice, employer preference, certification by the Board, and efficiency and economy of operation favor this result . Our present determination to award the work to the employees who are represented by the Laborers , but not to that Union or its members, is limited to the particu- lar 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 these cases, the National Labor Relations Board hereby makes the following determination of dispute. 1. Employees who are employed by Midwest Prestressed Corporation as laborers for the erection of precast concrete products and who are currently represented by Local 894, Laborers' International Union of North America, AFL-CIO, are entitled to perform the work of cutting holes on the job at the Bishop Towers construction site in Wickliffe, Ohio. 2. Plumbers Local 55, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , AFL-CIO , is not entitled, by means proscribed by Section 8(b)(4)(ii)(D) of the Act, to force or require the Employer to assign the above work to plumbers who are represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Plumbers Local 55, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , AFL-CIO, shall notify the Regional Director for Region 8, in writing, " Supra, fn 7 '= Supra, fn 10. PLUMBERS LOCAL 55 905 whether it will refrain from forcing or requiring the ployees represented by Plumbers Local 55, rather Employer, by means proscribed in Section than to employees represented by Local 894, 8(b)(4)(ii )(D), to assign the work in dispute to em- Laborers' International Union.