Plumbers & Steamfitters Local Union No. 189

PLUMBERS & STEAMFITTERS LOCAL UNION NO. 189 Plumbers & Steamfitters Local Union No. 189, United Association of Journeymen & Apprentices of The Plumbing and Pipe Fitting Industry of The United States and Canada, AFL-CIO and R. W. Wander, Inc. and Local 423, Laborers' International Union of North America, AFL-CIO. Case 9-CD-143 June 23, 1969 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by R. W. Wander, Inc., hereinafter called Wander or Employer, alleging that Plumbers & Steamfitters Local Union No. 189, United Association of Journeymen & Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, hereinafter called Plumbers, had violated Section 8(b)(4)(D) of the Act. A hearing was held pursuant to notice at Columbus, Ohio, on December 17 and 18, 1968, before Hearing Officer William C. Mittendorf. The Employer, the Plumbers, and Local 423, Laborers' International Union of North America, AFL-CIO, hereinafter called Laborers, 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. All parties filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. 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 EMPLOYER All parties have stipulated that Wander is an Ohio Corporation engaged in heavy and highway construction such as bridges, foundations, waste water treatment and water filtration plants. The Employer' s annual gross revenue is in excess of $500,000, and it annually receives goods in interstate commerce directly from points outside the State of Ohio in excess of $50,000. The parties agree, and we find, that the Employer is 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. II. THE LABOR ORGANIZATIONS INVOLVED 935 The parties stipulated, and we find , that the Plumbers and Laborers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Wander, the Charging Party, is a general contractor specializing in highway-heavy construction operating in and around central Ohio. It is a member of a multiemployer bargaining association composed of substantially all highway-heavy contractors in the State of Ohio called the Ohio Contractors Association-Labor Relations Division, hereinafter referred to as OCA-LRD. This association regularly negotiates bargaining agreements, on behalf of Wander and the other employers, with the Operating Engineers, Cement Masons, Teamsters, and Laborers. These labor agreements are known as highway-heavy agreements, and apply throughout the entire State. The Laborers, the Operating Engineers, and the Cement Masons are all affiliates of the AFL-CIO. In addition to the highway-heavy agreements each of the unions, except the Teamsters, has entered into what are known as building and construction trade agreements and are members of the Columbus Building Trades Council. In the highway-heavy agreements of the Operating Engineers and the Cement Masons, there are provisions for the settlement of jurisdictional disputes, requiring that they be submitted to the National Joint Board. There is no such agreement in the Wander contract with the Laborers. The Employer does not now have, nor has it ever had, an agreement with the Plumbers. However, Wander, acting independently of the association's bargaining arrangements, has, on occasion, as in the present instance, employed members of the Carpenters union under a written agreement to employ carpenters under the terms of the Local Building Trades Agreement, but without signing the formal bargaining agreement. The highway-heavy agreement specifically includes in its jurisdiction water treatment plants such as that presently being constructed by Wander. On August 17, 1967, Wander entered into a contract with the city of Columbus, Ohio, for the enlargement of a water treatment plant on Morse Road. The contract, plans and specifications, was composed of four parts: Part I-General; Part II-Plumbing; Part III-Heating and Ventilating; and Part IV-Electrical. Wander subcontracted Parts II, III, and IV to plumbing, heating and ventilating, and electrical subcontractors, but performed all of Part I work with its own labor forces. Pursuant to the highway-heavy labor agreements, Wander and representatives of the Teamsters, Operating Engineers, Cement Masons, and Laborers held a 176 NLRB No. 129 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prejob conference to assign the Part I work in September 1967. The disputed work was assigned to the Laborers. The Plumbers did not participate in this prejob conference. Mr. Steiner, business representative of the Plumbers, subsequently called upon representatives of Wander and made claim to the work in dispute. Mr. Steiner was then informed that the work in dispute had been assigned to the Laborers. The Plumbers then submitted the dispute to the National Joint Board which issued a decision on August 20, 1968, awarding part of the work here in dispute to the Plumbers. The record shows that the Employer did not actively participate in these proceedings before the National Joint Board. In fact, Mr. Reinhart, manager of the Labor Relations Division of the Ohio Contractors Association, appeared before the National Joint Board to dispute its power to make the above-mentioned award. On October 16, 1968, the plumbers, employees of plumbing subcontractor Brunner Corporation, picketed Wander's jobsite and were subsequently enjoined from so doing by the Common Pleas Court, Columbus, Ohio. It is clear from the record that the purpose of the picketing was to obtain the disputed work. B. The Work in Dispute The work over which this dispute is centered, as set forth in the notice of hearing, involves the "unloading and laying of pipes at the water treatment plant being constructed by R. W. Wander, Inc., at Morse Road." This work is more specifically set forth in Part 1 of the plans and specifications of the contract between Wander and the City of Columbus.' C. The Contentions of the Parties The Plumbers grounds its claim to the work in dispute on two alternative positions . It is first contended that the Board can not make the determination of this dispute under 10(k) because all the parties have agreed to submit the dispute to the National Joint Board . But, if the Board finds that the dispute is properly before it for determination under 10(k), the Plumbers argues that the work should be awarded to it because : ( 1) the installation of the water treatment plant is merely an 'The record reveals that the work in dispute is actually far broader than that indicated in the notice of hearing . Thus, the Plumbers, as already mentioned , claims for its members the right to that work awarded to them by the decision of the National Joint Board . The Joint Board award is as follows- The handling, unloading, distribution and installation of raw water intake lines, non-metallic storm and sanitary sewer lines beyond the first point of connection from buildings, non-metallic sludge lines outside of the building, and the unloading) handling and distribution of portable water lines shall be assigned to laborers . All other interconnecting piping, valves, fittings, pump controls, hangers, supports and chemical treatment facilities shall be assigned to plumbers and steamfitters. enlargement of an existing water treatment plant which was - installed in 1954 by employees represented by the Plumbers; (2) plumbers and pipfitters have traditionally and consistently installed similar water treatment plants throughout the area; (3) plumbers and pipefitters are more qualified than laborers to do the work in dispute by virtue of their special training and schooling; and (4) the National Joint Board awarded the disputed work to the Plumbers. Both the Laborers and Wander contend that they were not parties to the National Joint Board proceeding and therefore are not bound. The Employer maintains that he justifiably assigned the work to the laborers on the basis of company and industry practice, skill and efficiency at the worksite, economy, safety, and applicable labor agreements. The Laborers further contend that the assignment of the work was properly given to it since it has normally done this type of work under the heavy-highway construction contract and the work does not require the use of the special skills of the Plumbers' members. D. Applicability of the Statute Before the Board may proceed to a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is a reasonable cause to believe that Section 8(b)(4)(D) has been violated. As indicated above, the Plumbers picketed Wander's jobsite. It is clear from the record that the purpose of the picketing was to enforce the award of the National Joint Board, or, described another way, to obtain the disputed work for employees represented by the Plumbers. We find there is reasonable cause to believe that violations of Section 8(bX4)(D) have occurred, and that the dispute is properly before the Board for determination under Section 10(k) of the Act.' E. Merits of the Dispute As stated in the J. A. Jones case3 we shall, pursuant to the Supreme Court's C.B.S. decision,' rrhe Plumbers contend that all the parties have agreed upon a voluntary method of adjustment of the dispute and therefore the notice of hearing should be quashed . This contention is based upon the fact that both the Employer and the Laborers are signatories to agreements which do provide for the submission of jurisdictional disputes to the National Joint Board. Therefore, it is argued, they have recognized the power of the National Joint Board to render such decisions and should be bound by the decision rendered in the present case . We find this contention to be without merit. The agreement between Wander and the Laborers does not provide for submission of disputes to the National Joint Board . The fact that these parties in unrelated collective-bargaining agreements agreed to follow the National Joint Board 's resolution procedure has no bearing on this case. See Building and Construction Trades Council of Las Vegas (Charles Dorfman), 173 NLRB No. 208, Plasterer's Local Union No 79 (Southwestern Construction Co.), 172 NLRB No. 77. 'International Association of Machinists, Lodge No. 1743, AFL-CIO (J A Jones Construction Co.). 135 NLRB 1402. IN L.R B v Radio & Television Broadcast Engineers Union (Columbia Broadcasting System), 364 U.S. 573. PLUMBERS & STEAMFITTERS LOCAL determine in each case presented for resolution under Section 10(k) of the Act the appropriate assignment of the disputed work only after taking into account the evidence supporting the claims of the parties and balancing all relevant factors. 1. Collective-bargaining agreement Neither of the labor organizations involved herein has been certified by the Board as the collective-bargaining agent for a unit of the Employer's employees. The Laborers has been recognized by, and has entered into contractual agreements with, Wander for a substantial period of time. The Plumbers is not now nor has it ever been a party to a collective-bargaining agreement with Wander. However, in some cases Wander subcontracts a portion of the work to plumbing subcontractors who do recognize and have collective-bargaining agreements with the Plumbers. 2. Company and industry practice Both sides in this dispute point to specific instances which they claim support their contention that the industry practice in work assignment favors their position . It is clear that the Employer, Wander, when it has a contract to construct such a water treatment or sewage disposal plant, has always assigned the work now in dispute to the laborers. The record further supports the conclusion that other heavy-highway contractors in this area of Ohio normally assign this type work to employees represented by the Laborers.' 3. Efficiency, economy flexibility of operations The Plumbers only claims a portion of the work actually involved in this dispute in accordance with the National Joint Board award. Therefore, if the plumbers were assigned this work it would require the fragmentation of the job among the laborers and plumbers causing increased costs, more complicated scheduling of workers, and more time required to complete the job. Further, the record shows that Wander might well experience difficulty in obtaining plumbers to perform the small portion of the overall job they actually claim. In this regard , the record reveals a reluctance on the part of the Plumbers to make an arrangement similar to the arrangement Wander has with the Carpenters to obtain the necessary personnel to complete the work . Indeed, it would appear that Wander would have either to sign an agreement currently in existence between the Plumbers and the Mechanical Contractors Association of Central Ohio, or to seek out a subcontractor covered by this agreement to perform this portion of the work involved in the dispute. 'The Plumbers has pointed out that in the original construction of Morse Road Water Treatment Plant the work presently in dispute was assigned to the plumbers. But it should be noted that the contractor who did this construction operated through the building trades agreements and was not a member of OCA-LRD involved in heavy-highway construction 4. Skill of the employees 937 The record clearly shows that the work involved in this dispute does not require any especially difficult skills. The skills required to perform the work can be acquired in a relatively short period of time, i.e., a few hours. There is no showing of the need for the utilization of the peculiar skills possessed by members of the Plumbers union. The laborers appear to be both capable of performing the work efficiently and also to have had considerable experience in performing this type of work. Indeed, the laborers in the employ of Wander have repeatedly performed the identical work in dispute over a long period of time to the complete satisfaction of the Employer and the contracting parties. 5. The National Joint Board award Although, as indicated supra, we do not consider the National Joint Board's award binding on the Employer and the Laborers, we consider it as a factor in determining the proper assignment of the work in dispute. However, in view of all the circumstances, including the absence of any showing in the record as to the basis for the National Joint Board determination, we are of the opinion that the National Joint Board award should not be accorded controlling weight.6 Conclusions Upon the record as a whole, and after full consideration of all relevant factors involved, we believe that the employees of Wander who are currently represented by the Laborers, rather than plumbers represented by the Plumbers, are entitled to the work in dispute. We reach this conclusion relying upon the Employer's assignment of the disputed work to its employees, the fact that the assignment is consistent with the Employer's past practice and the current bargaining contract, the fact the employees represented by the Laborers possess the requisite skills to perform the work, and that such an assignment will result in efficiency and economy of operations. Accordingly, we shall determine the dispute before us by awarding the work in dispute at the water treatment plant being constructed by Wander at Morse Road, Columbus, Ohio to those employees represented by the Laborers, but not to that Union or its members. In consequence, we also find that the Plumbers has not, and is not entitled by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the disputed work to its members. 'Sheet Metal Workers, Local 541 (Kingery Construction Co ), 172 NLRB No 108, and cases cited therein 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Scope of the Determination The Employer, in his brief, requests that the Board' s award be extended to all of the jobs to which similar disputes may arise in the State of Ohio whether involving this Employer or any other highway-heavy contractor member of OCA-LRD. Although the Board need not restrict its award to a single job if there is evidence that similar disputes will occur in the future ,' we conclude that such an award cannot be made in the present dispute. The record is not clear with respect to the present or future operations of this Employer or any other member of the OCA-LRD, nor is it clear with respect to the future activities of the parties involved in the present dispute, and the record does not reveal all other factors necessary to issue such a sweeping award as herein sought . Therefore we will limit our award only to the project presently under our consideration. 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 'Building and Construction Trades Council of Las Vegas (Charles Dorfman ), 173 NLRB No 208, International Union of Operating Engineers . Local 66, AFL-CIO (Frank P Badoleto & Son ), 135 NLRB 1392 hereby makes the following determination of the dispute: 1. Employees of R. W. Wander, Inc., who are currently represented by Local 423, Laborers' International Union of North America, AFL-CIO, are entitled to perform the work of unloading and laying of pipes and other related work in dispute at the water treatment plant being constructed at Morse Road, Columbus, Ohio. 2. Plumbers & Steamfitters Local Union No. 189, United Association of Journeymen & Apprentices of the Plumbing and Pipe Fitting 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 R. W. Wander, Inc. to assign such work to plumbers represented by Plumbers & Steamfitters Local Union No. 189, United Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, AFL-CIO. 3. Within 10 days from the date of this Decision and Determination of Dispute, Plumbers & Steamfitters Local Union No. 189, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, shall notify the Regional Director for Region 9, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to plumbers represented by the Plumbers, rather than to employees represented by the Laborers.