United Association of Journeymen

UNITED ASSOCIATION OF JOURNEYMEN United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Plumbers Local No. 219, AFL-CIO and Local 894, Laborers' International Union of North America, AFL-CIO and Price Brothers Company. Case 8-CD-129 February 14, 1969 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Local 894, Laborers' International Union of North America, AFL-CIO (hereinafter called the Laborers ), alleging that the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Plumbers Local No. 219, AFL-CIO (hereinafter called the Plumbers), violated Section 8(b)(4)(D ) of the Act. Pursuant to notice, a hearing was held before Hearing Officer Myron Hill, on August 5, 6, and 21, 1968. All parties appearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, briefs were filed by the Charging Party, the Respondent , and the Employer involved. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case 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. They are hereby affirmed . The Board has considered the briefs of the parties and the entire record in this case, and hereby makes the following findings: 1. THE BUSINESS OF THE COMPANY Price Brothers Company, a manufacturer of pipe, of Florindex systems, and of other products is an Ohio corporation with its main office in Dayton, Ohio. During the past 12 months Price Brothers has purchased materials and supplies valued in excess of $50,000 directly from sources outside of Ohio, and has sold products valued in excess of $50,000 directly to out-of-State customers. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. It. THE LABOR ORGANIZATIONS INVOLVED 547 The parties stipulated , and we find , that the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Plumbers Local No. 219, AFL-CIO, and Local 894, Laborers' International Union of North America , AFL-CIO, are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The dispute centers on the work assignment of drilling holes in flexicore slabs of precast concrete which Price Brothers manufactures and markets under the trade name of Florindex. The dispute arose at the jobsite known as College Towers, in Kent, Ohio. The charge filed by the Laborers on June 19, 1968, and amended July 19, 1968, alleges in substance that on or about May 28, 1968, and thereafter, Plumbers' Local 219 unlawfully encouraged individuals employed by Tower Plumbing and Heating, Inc., a plumbing subcontractor, to refuse to work or to perform any services with an object of forcing Price Brothers to assign the hole drilling to employees who were represented by the Plumbers, rather than to employees who were members of the Laborers. The record reveals that Ivory Land Corporation No. 2 is a general contractor engaged in the construction of two buildings known as College Towers in Kent, Ohio. On February 21, 1968, Ivory Land Corporation entered into a contract with Price Brothers under the terms of which the latter was to deliver and install some 268,278 square feet of flexicore slabs for use in the construction of the buildings. Item 2 of the contract requires, in pertinent part, that the sum to be paid to Price Brothers under the contract is to include Price's cutting on the job of openings in the slabs for water closets and bathtub drains. The contract project required about 1,000 openings of this type. Flexicore slabs are approximately 8 inches in depth and 24 inches in width. Their length depends on the size of the room. Erection crews (herein called field crews) employed by Price Brothers and long represented by the Laborers customarily install these slabs. Each field crew lays the slabs and attaches them. The general contractor lays out the locations for the openings which are to be made on the job, and the openings then are cut by a single member of the field crew by use of a vertical electric drill. Until the present case, the Price Brothers employee doing the work has always been one represented by the Laborers. On May 28, 1968, Price Brothers brought the equipment necessary for the hole drilling to the jobsite and assigned one of its employees to do the 174 NLRB No. 93 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work. About 3 hours after this employee began the work, Bernard Rach, a member of the Plumbers employed as foreman of the plumbing work subcontracted to Tower Plumbing and Heating Inc. (herein called Tower), told Sidney Salit, the principal officer of Tower, that the plumbers were going to have a "safety" meeting "because the flexicore people were drilling holes for the plumbing lines to go through." Thereupon, all the plumbers ceased working and went to their trailer. Soon thereafter, the representative of the general contractor (Ivory) told Robert L. Haubiel, the field superintendent for Price Brothers, that the plumbers were holding a "safety" meeting and that it would last as long as the Laborers were cutting holes. Haubeil then instructed his men to cease doing the hole-cutting work and to do work on the erection crew instead. When the laborers did cease the hole cutting, the plumbers ended their "safety" meeting and resumed their work. The record further reveals that on a date described only as being "at the end of May," Harry J. Morris, the business manager of Plumbers Local 219, told Carl Milstein, the general contractor's representative, that the cutting of holes for plumbing and pipe fitting was the plumbers' work. Morris also made the same statement to Edward Shanholtz, the Plumber's job steward, after the latter reported to the Plumbers' business office that the Laborers were cutting the holes for the pipes. On June 6, Price resumed the hole cutting and again assigned one of his laborers to do the work. The plumbers again walked off the job and held another "safety" meeting. Haubiel arrived at the jobsite a little later, and Salit then informed him that the plumbers were having another "safety" meeting. Salit asked Haubiel to take his men off the hole cutting. Haubiel refused for the stated reason that it was too expensive for him to bring his equipment out to the jobsite, set it up, and then only operate it for an hour or two. The laborers continued to drill all day, whereas, the plumbers remained at the "safety" meeting and performed no work for the balance of the day. Price Brothers did not assign any hole cutting on the project to any member of its field crews on June 7, and has not done so since that date. The plumbers resumed working on June 7, and have engaged in no work stoppages since that date. At some date between June 7 and July 9, the Plumbers' business agent, Harry J. Morris, referred this dispute to the National Joint Board for Settlement of Jurisdictional Disputes. Both the Laborers and the Plumbers are affiliated with International Unions which are members of the Building and Construction Trades Department of the AFL-CIO, and as such are bound by the settlement procedures of the Joint Board. However, Price Brothers has not been stipulated to the Joint Board since 1964. On July 9, 1968, the Joint Board issued a one page directive awarding the work in dispute to the plumbers. On July 10, Price Brothers notified the Joint Board that it declined to put the directive into effect. On July 29, Price Brothers hired a member of the Plumbers to do the hole cutting. This man was engaged in hole cutting at the time of the hearing. B. The Contentions of the Parties Price Brothers and the Laborers contend that: The Plumbers violated Section 8(b)(4)(D) by exerting coercive pressures directly and indirectly upon Price to compel Price 's assignment to the Plumbers of the hole-cutting work previously assigned to Laborers ; and that the work should properly be awarded to the Laborers in view of (a) the latter' s certification by the National Labor Relations Board as the bargaining representative of a unit of the employees of Price which included employees regularly performing that work , (b) the circumstances existing when Price contracted to perform the contract work for the general contractor, and (c ) considerations of economy and efficiency . Price Brothers also contends that no weight should be given to the award of the Joint Board in view of the fact that Price is not stipulated to the Joint Board. The Plumbers requests that the charge be dismissed on either of two alternate grounds. It claims first that no prima facie case of the alleged violation of Section 8(b)(4)(D ) has been made out because, so it asserts, there is no evidence that it made a formal demand for the work in dispute and, besides, its calling of the "safety" meetings had legitimate safety objectives . Next, it urges the Board to give effect to the ruling of the Joint ,Board and to reverse the Board's long established rule that the employer is a necessary party to the voluntary proceedings for settling jurisdictional disputes referred to in Section 10 (k) of the National Labor Relations Act. C. Applicability of the Statute Before the Board may proceed with the determination of a dispute pursuant to 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. Contrary to the contentions of the Plumbers, we find that the circumstances under which all employees of Tower who were members of the Plumbers concertedly ceased performing their assigned work on the project on May 28, and June 6, 1968, clearly establish a prima facie case supporting the alleged violation of Section 8(b)(4)(D). On each of these two separate dates Plumbers held a "safety" meeting shortly after the Laborers, to whom Price Brothers had assigned the disputed hole-drilling work, began performing this assignment, and on each occasion the "safety UNITED ASSOCIATION OF JOURNEYMEN 549 meeting" was adjourned and the Plumbers resumed working only when the Laborers stopped performing the hole-drilling work. In denying that its conduct of these meetings violated Section 8(b)(4)(D) the Plumbers points out, inter alia, that neither of these meetings was preceded by any formal demand that Price Brothers assign the hole-drilling work to plumbers, and that, sometime after these meetings, the Plumbers filed with the State agency certain complaints about safety conditions on the job. However, even assuming that the facts on which the Plumbers rely might warrant a conclusion that "an" object of the "safety meetings" was the correction of allegedly unsafe working conditions, these facts do not necessarily preclude a finding that "an" additional object of the "safety meetings" (if not the sole object) was to obtain for plumbers the hole-drilling work which Price Brothers had previously assigned to laborers. This view of the Plumbers' objective is supported not only by the timing of the meetings, but also by the facts that at times closely related to the holding of the meetings, Morris, the Plumbers' business manager and Shanholtz, the Plumbers' job steward, claimed that the hole-drilling work belonged to the Plumbers; that Morris himself so advised a representative of the general contractor; and that Rach, the Plumbers' job foreman, expressly advised another representative of the general contractor that the Plumbers were going to hold a "safety" meeting "because the flexicore people [viz the employees of Price Brothers] were drilling the holes for the plumbing lines to go through." Plumbers also contend that the Board is precluded from making a determination of the dispute because the Joint Board awarded the disputed work to Plumbers pursuant to a method of adjustment agreed upon by Plumbers and the Laborers. However, as Price Brothers, a necessary party to the adjustment of the dispute, neither agreed to Joint Board submission nor participated in the Joint Board proceeding, we conclude there was no voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act.' On the basis of the entire record, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred and that the dispute is properly before the Board for determination. 2 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 relative factors. In International Association of Machinists, Lodge No. 1743 (J. A. Jones Construction Co. ), 3 the Board 'See International Union of Operating Engineers, Local Union No 158, AFL-CIO (E. C. Ernst, Inc ), 172 NLRB No. 192. 'Cement Masons Local Union No 524 (Tobasco Prestressed Concrete Co.), 163 NLRB No. 75. set forth the following criteria to be considered in the making of an affirmative award in a Section 10(k) proceeding: The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g., the skills and work involved , certifications by the Board , company and industry practice, agreements between unions and between employers and unions , awards of arbitrators, 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.4 1. Company and area practice The record reveals that in approximately 20 percent of the contracts for erecting flexicore slabs Price Brothers is required to do cutting in the field for holes and chases for pipes. Until the events above described occurred, the Employer invariably assigned this work to one of its employees represented by the Laborers. The present assignment to a plumber represents the sole exception to that practice and, as we have found, that assignment was made under coercion. In the other 80 percent of the cases, the cutting of these holes is done either at the factory by Price Brothers or else in the field by the purchaser. The record is devoid of any evidence showing what union, if any, represents the employees of the purchasers who do their own field cutting. Thus, the only record evidence relating to employer or area practice supports an award to the laborers. 2. Employer's preference The fact that Price Brothers strongly favors an award to the laborers is a factor which supports the assignment to the laborers. 3. Efficiency and economy of operation The record reveals that in the two buildings involved here about 1,000 holes are to be drilled. Price Brothers introduced evidence, which was not disputed, that one laborer can drill some 20 holes a day; that the plumber assigned to this work was drilling only about 15 holes a day; and that the difference in cost to Price Brothers was about $1 per hole, or a total of $1,000 for the complete job. This is another factor supporting assignment of the disputed work to the laborers. 4. Certification by the Board The Laborers was certified in 1959 by the National Labor Relations Board as the collective-bargaining representative of all employees '135 NLRB 1402 'Id at 141041.i. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Price Brothers at its Kent, Ohio, plant, excluding certain categories not relevant here. Employees performing disputed hole-cutting work are clearly within the unit covered by this certification. This is another factor favoring an award to the laborers. 5. Agreement between the Unions and the award of the Joint Board The National Joint Board award of the work in dispute to the plumbers is the one factor supporting the Plumbers' claim to the work. In pertinent part that award reads: It has been agreed between the Unions involved that the work in dispute shall be assigned to plumbers and steamfitters. Contractor is directed to proceed with work on this basis. The "agreement" referred to in this letter was not put into evidence, and we are thus left without means to determine its precise character or to evaluate its significance. It is, however undisputed that Price Brothers was not a party to this agreement, and is not stipulated to the Joint Board. Therefore, the Joint Board award cannot be regarded as determinative of this dispute.' However, the Plumbers contends that we should accord "significant weight" to the Joint Board award in spite of the fact that the Employer is not stipulated to the Board and did not participate in the proceeding. In the recently decided Don Cartage case,6 the Board has indicated that, in evaluating the relative merits of competing union claims to disputed work, an award by the Joint Board or by other impartial arbitrators should not be ignored simply because the Employer did not participate in the proceeding which resulted in the award. And, indeed, in that case, we accorded the award there before us significant weight. But here, unlike the situation in Don Cartage, the award consisted simply of a letter setting forth its ultimate terms, neither explicating the factors relied upon nor providing any other supporting data in a manner that might enable us to determine the degree of deference that should be accorded it. We do not therefore assign to this award the same significant weight as was assigned to the award in the Don Cartage case, supra.' 'International Union of Operating Engineers, Local Union No 158, AFL-CIO, (E.C. Ernst, Inc.), 172 NLRB No 192. 'Millwrights Local Union No 1102 (Don Cartage Company), 160 NLRB 1061. 'E. C Ernst, Inc., supra, fn. 5. Member Jenkins agrees that the Joint Board award in this case is not sufficient to outweigh the considerations which favor an award to the laborers. Having reached a similar view in his dissent in Don Cartage, he now finds it unnecessary to distinguish carefully the Joint Board award in this case from the award in the Don Cartage case - although he recognizes that some differences may exist CONCLUSIONS On all the evidence, we determine the instant jurisdictional dispute in favor of the laborers, and find the employees of Price Brothers represented by the Laborers, rather than plumbers and pipefitters represented by the Plumbers, are entitled to perform the work of field cutting of holes at the College Towers construction site. Company practice, Employer preference, certification by the Board, efficiency and economy of operation favor this result. 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 case, the National Labor Relations Board hereby makes the following determination of dispute. 1. Employees who are employed by Price Brothers Company, Flexicore Division, 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 College Towers construction site in Kent, Ohio. 2. Plumbers Local No. 219, 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)(D) of the Act, to force or require the Employer to assign the above work to plumbers and pipefitters who are represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Plumbers Local No. 219, 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, whether it will refrain from forcing or requiring the Employer, by means proscribed in Section 8(b)(4)(D), to assign the work in dispute to employees represented by Plumbers and Pipefitters Local No. 219, rather than to employees represented by Local 894, Laborers' International Union.