Plumbers, Local 162

PLUMBERS , LOCAL 162 623 United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada , Local 162 , AFL-CIO and International Brotherhood of Electrical Workers, Local 82, AFL -CIO and The Dayton Power and Light Company. Case 9-CD-167-1 and 9-CD-167-2 December 10, 1969 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN, AND ZAGORIA On April 25, 1969, the Employer, The Dayton Power and Light Company, filed a charge pursuant to Section 10(k) of the Act with the Regional Director for Region 9, alleging, in substance, that Respondent Plumbers and Respondent Electrical Workers, in violation of Section 8(b)(4)(D) have engaged in and/or induced or encouraged individuals employed by certain contractors at the construction site of a proposed shopping center complex in Montgomery County, Ohio, to engage in a strike and/or concerted refusal in the course of their employment to perform any services for their respective employers, with an object of forcing or requiring Employer, The Dayton Power and Light Company (I) to assign the installation of its gas main facilities at said site to members of Respondent Plumbers and (2) to assign the installation of underground electric facilities at said site to Respondent Electrical Workers, rather than to members of Local 175, Utility Workers Union of America, AFL-CIO, employed by The Dayton Power and Light Company, with whom the Employer has a valid and subsisting contract covering such work Thereafter, pursuant to Section 10(k) of the Act and Sections 102 79 and 102.80 of the Board's Rules and Regulations, Series 8, the Regional Director investigated the charges and provided for an appropriate hearing upon due notice to the parties. A hearing was held before James K. L. Lawrence, Hearing Officer, between July 29 and August 19, 1969. 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 The Employer, the Respondent Unions, and the Party to the Dispute filed briefs, which have been duly considered by the Board. 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 Upon the entire record, in this case, 'the Board makes the following•findmgs: I. THE BUSINESS OF THE EMPLOYER The Employer, an Ohio corporation with principal offices at Dayton, Ohio, is' engaged in the business of ' supplying gas, electric and steam service to customers in the'State of Ohio. During the last year, which is a representative _period,'^ the Employer received revenues for services performed * of approximately $152 million, and during the same period made purchases of goods and materials from firms located directly outside the State of Ohio!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 II. THE LABOR ORGANIZATIONS INVOLVED We find, in accord with the stipulation of the parties, that the Respondents and the Party to the Dispute are labor organizations as 'defined in Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The parties stipulated-, that the situs of the work dispute was the Dayton Mall Shopping Center at the intersection of Routes 725 and 741 in Montgomery County, Ohio. The Respondent Plumbers' dispute involves the underground installation of gas lines on private property, outside of easements, to serve gas customers located in the shopping center, and''the Respondent Electricians' dispute. involves the, laying of duct and the pulling of cable through the duct in the primary electrical system to , serve electric customers located ' in --the' shopping center. B. The-Facts The developer for= the Dayton Mall Shopping Center is The Edward J. DeBartolo Corporation, whose responsibility it is to bring all utilities to the property lines of the respective sites within the shopping center In late March or early April 1969, The Dayton Power and Light Company (DP & L), following negotiations with DeBartolo which is 'also the general contractor for all but two 'facilities on, the property, assigned the work in dispute to its' employees who work on underground gas and underground - electric construction, and are represented by the Utility Workers. In the meantime DP & L rejected bids by local gas and electrical contractors for this work. There is testimony that trenching for the electrical work began April 7 The gas work began April 9 and the electrical work April 10. 179 NLRB No. 169 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Members of the Plumbers, at a regular meeting on April 7, were advised by Haas, their business manager, that DP & L crews would perform the gas installation work. Haas was reticent in testifying about his report to the membership, but admitted that he reported the result of a March 27 meeting with DP & L and the Local Plumbing Contractors Association at which DP & L "volunteered" information about doing the `work and that he, Haas, had questioned DP & L about rumors that it would do so. Haas could not recall taking the position, at the March 27 meeting, that he believed the work to be Plumbers' work.' On April 9 business- manager Lane of the Electricians, meeting with DP & L and members of the National Electrical Contractors Association, inquired how far DP & L intended to go in the construction field and stated that the type of electrical work which DP & L was proposing to do itself had "always been done" by employees represented by the Electricians. Lane's response when questioned as to his intentions in the event DP & L crews did the work was that he did not personally intend to do anything but had heard from his assistant that there was trouble at the job site and that some men were leaving the fob. Beginning on the 9th employees who, were members of the Plumbers, the Electricians, and other Unions, began walking off the job. DP & L had been authorized, by letter of April 3 from the Dayton Mall, • Inc., to enter upon the shopping center lands for construction purposes pending the issuance of a formal utility easement. On _ April= 16, during the work stoppage, this authority was revoked, and DP & L ceased work at the Mall. Court action followed. Meetings by the parties to resolve the dispute were held between : April 18 and • 25. Millard Rodgers, executive secretary of the' Dayton Building Trades Council, attended these meetings; Haas of the Plumbers' and Lane of 'the Electricians attended some meetings . Rodgers did not testify at the hearing, but there is testimony that he said at the first meeting, "Get DP & L off the site and keep them off " There is also testimony that at another meeting, which Haas, Lane and Rodgers all attended, an'ui identified speaker said "When DP & L is off of our work, we will be back." During this period, on April 23, an article appeared in the Dayton Daily News quoting Rodgers as saying- " . We don't like to stop the project and we don't like our members out of work either. But the next thing you know they (DP & L),will be wiring houses 'There is testimony by Trittschuh, vice president of DP & L in charge of its gas division, that' Business Agent Malone of the Plumbers, on March 17, called him about this work and when told that DP & L was going to do it, said that this was a building trades job, that there were plenty of contractors who would be willing to bid it, and that DP & L should not do .the work because it was not a contractor Malone did not testify I 'The newspaper article was received in evidence during testimony by reporter, Dave Allbdugh, the parties stipulating that an article by Allbaugh The DeBartolo Corporation obtained a temporary restraining order against DP & L on April 26 and promptly contracted with individual electrical and plumbing contractors for the work in dispute. Lane and Haas were informed of this fact on April 27, and the next day employees represented by the Electricians and the Plumbers, and other Unions comprising the Dayton Building Trades Council, began returning to the fob. C Contentions of the Parties The Respondent Unions joined in a motion to quash the notice of hearing, each contending that there is no evidence that either Union or its agents threatened, induced, coerced or encouraged any employees of any contractor to strike in violation of Section 8(b)(4)(D), and that the walkout was "spontaneous" in nature. Alternatively, should the Board resolve the work dispute issue on its merits, they would have the Board award the gas main installation to members of the Plumbers and the primary electrical work to members of the Electricians. The Employer and the Party to the Dispute each contends that the Respondents were in violation of Section 8(b)(4)(D) of the Act by reason of sanctioning the strike in support of the Unions' demands for the disputed work, and that the Board should determine the work dispute herein by assigning the disputed work to employees who are represented by the Utility Workers. D. Applicability of the Statute Before the Board proceeds with a determination of 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. Based on our examination of this record we find that the members of the Plumbers and the Electricians engaged in work stoppages at the Mall which were sanctioned by the Respondent Unions because their claims to the disputed work were not heeded It further shows that the purpose of such stoppages was to force the replacement of DP & L with contractors employing members of the Plumbers and Electricians for the work in issue. The evidence is uncontradicted that plumbers, electricians and members of other crafts began leaving the job once DP & L gas and electrical crews began working, and that they did not return thereafter until advised that the work in issue was assigned to.contractors employing members of the appearing on the first page of the Dayton Daily News on April 23, 1969, was written by the witness, who testified that Rodgers called the paper before noon on the 23rd and identified himself, said that most if not all of the Dayton Building Trades Union members had left the job, that this was the first time DP & L crews had moved across the property line with their gas mains and electrical lines, that this was a "monopoly power taking members' jobs," but that this was not a strike According to Allbaugh, Rodgers also indicated that the men would not be back on the job until some settlement was reached PLUMBERS , LOCAL 162 625 Plumbers and the Electricians; that the Secretary of the Dayton Trades Council, who participated in meetings with the developer, DP & L and others in an attempt to resolve the dispute, 'stated at one of these meetings - and was quoted to the same effect in a newspaper article instigated by him at the time -- that getting DP & L off the job was a prerequisite to the return of the various.Unions, that representatives of both Respondents attended at least one of the meetings where these sentiments were expressed without voicing disagreement; that the business manager of the Electricians voiced a similar sentiment - phrased in terms of his men "individually" not being interested in working on the same job where DP & L was working - when asked what he did to get the men to return to work; that said business manager concededly took no steps to secure the return to the-job of members of the Electricians involved in the dispute beyond telling the men that enlightenment of the public was appropriate but that their approach was "not legal," and that the business agent of the Plumbers so far as this record shows took no steps at all in-an attempt to get members of the Plumbers to return to work.' In the circumstances outlined we find reasonable cause to believe that Respondents were responsible for the work stoppage, or at least ratified it, and that a violation of Section 8(b)(4)(D) has occurred.4 We conclude that the dispute is properly before the Board for determination under Section 10(k) of the Act. E.' Merits of the Dispute Section 10(k)' of the kct requires the Board to make an- affirmative award of the disputed work, after giving d,ue consideration to various relevant factors. The following are the factors relied on by the parties to the dispute to support .their respective claims. 2. Company, industry, and area practice Both Respondent Unions content that area practice demonstrates that their members have performed the disputed work when employed by area plumbing and electrical contractors who have been let contracts by the general contractor, and see significance in the fact that the work here in dispute was being performed on private property by DP & L crews before a formal easement had been granted to the Utility. The Utility Workers claims the right to do the disputed work by reason of its certification 'and contract. In addition it'offered evidence to show that various public utilities in Ohio, represented by other locals of the Utility Workers Union, have assigned work similar to that in dispute to their construction crews. DP & L contends that its crews have regularly performed the type of work in dispute for many years and that its failure to secure a formal easement before commencing gas and electric installation is not determinative of its right to be on private property and to assign the work in dispute to its own crews pursuant to its contract, with the Utility Workers; that this assignment is consistent with its practice in providing gas and electric service to customers; that the. lines in question here will bring service to more than one customer and be owned and operated by it,, including the perimeter piping which surround the buildings and' the lateral piping (serving more than one customer) to the point of delivery; that it owns the material used in this work and the right to assign the work to its own crews is therefore exclusive with it; that although it has subcontracted gas, and electric installation work to area contractors at times in the past, this was during peak construction periods when its own crews were not available. It also contends that the cost to it of contracting out-the work in issue as opposed to having it installed by its own crews would have been many times greater. 1. Contracts and certifications It was agreed that neither the Electricians nor the Plumbers has had a contractual relationship with DP & L, whereas the Utility Workers was certified by the Board in 1943 for a unit covered since that time by successive bargaining contracts, and including the employees who were here assigned the work in dispute.' 'Cf International Union of Operating Engineers . Local No 18 and 18(c), AFL-CIO (The Wagner-Smith Co ). 174 NLRB No 65 'See Cement Masons' Local Union No 524 ( The Penker Construction Co ). 163 NLRB 609, 612 'Art XX, sec 1, of the contract contains the following The Company will not employ outside contractors for work which will result in the discharge or laying off of employees covered by this Agreement who ordinarily and customarily do such work 3. Employee skills and efficiency of operations It is not contended that the Respondent Unions lack the skills to perform much of the work in question, but it is contended that if they were to do so, additional workmen would be needed to do a complete job, such as laborers and operating engineers to operate equipment and accomplish the trenching and backfill operations. Testimony by the Respondent Unions concedes this. DP & L contends that unless its crews are committed to other projects, it is more efficient and economical to assign the work to its own crews, who are trained as a crew and work interchangeably, consistent with its objective of providing stable, continuous employment to a work force of a sufficient size to take care of the regular work of the company. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The question of mootness Respondent Plumbers urges that the: dispute is moot, saying that the facts here are unique because of the Dayton Mall design, with buildings grouped in the middle of the total tract, and because of the failure of DP & L to get easements, hence it contends that a ruling by the Board would be unlikely to establish a' meaningful precedent for any future dispute. We see no significance in the fact that the work was begun by crews of the Charging Party without a formal utility easement having been executed, and, although the design of the Dayton Mall may have been unique at the time of the work dispute, we cannot assume that it will continue to be unique. There is no evidence before us giving any assurance that similar disputes will not occur in'the future. Accordingly, we find that the dispute herein is not moot and we shall make the assignment of the disputed work. Conclusions as to the Merits of the Dispute Based upon the entire record and after full consideration of all relevant factors involved, including the Charging Party's assignment of the work, the Board's certification, the contractual relationship between the, Charging Party and the Utility Workers, the efficiency of the Charging Party's operations, and the most economic utilization of its construction crews, we shall determine the dispute before us by awarding the underground installation of gas mains and the work of laying duct and pulling electrical cable through the duct 'in the primary electrical system, including the perimeter piping which surrounds the buildings at the shopping center and the lateral piping to the point of delivery, to employees of the-Charging, Party represented by the Utility -Workers. This determination is limited to the particular controversy giving rise to this dispute. Our award is not to the Utility Workers or its members DETERMINATION, OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended , and upon the foregoing findings, and the entire record in this proceeding, the National Labor Relations ' Board makes the following determination of dispute: 1. Employees employed on construction crews by The Dayton Power and Light Company, who are represented by Local 175, Utility Workers of America, AFL-CIO, are entitled to perform the work of installing gas mains underground and of laying duct and pulling electrical cable through that duct in the primary electrical system, including the perimeter piping which surrounds the buildings 'at the Dayton Mall Shopping Center and the lateral piping to the point of delivery. 2. United Association of . Journeymen & Apprentices of the . Plumbing and Pipefitting Industry of the United States and Canada, Local 162, AFL-CIO, and International Brotherhood of Electrical Workers, Local 82, are not entitled to force or require, directly or indirectly , The Dayton Power and Light Company , its successors or assigns, _ to assign any of the work to the employees of contractors represented by said Unions. 3. Within 10 days from the date of this Decision and Determination of Dispute , United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 162, AFL-CIO, and International Brotherhood of Electrical Workers, Local 82, AFL-CIO, shall notify the Regional Director for Region • 9, in writing , whether it will or will not refrain from , forcing or requiring, directly or indirectly, The Dayton Power and Light Company, its successors or assigns, by means proscribed in Section 8(b)(4)(D ) of the Act, to assign the above-described work to employees of contractors represented by such Unions.