Laborers' Local 300

LABORERS' LOCAL 300 Laborers' International Union of North America, Lo- cal 300, AFL-CIO and Howard Olson Landscaping, Inc. and Local 345, United Association of Journey- men and Apprentices of the Plumbing and Pipefit- ting Industry of the United States and Canada, AFL-CIO. Case 31-CD-68 January 31, 1972 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by Howard Olson Landscaping, Inc. (herein referred to as the Employer), alleging that La- borers' International Union of North America, Local 300, AFL-CIO (hereinafter referred to as the Labor- ers), has violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer John A. Mendonsa on June 23 and August 9, 1971. 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. All parties including Local 345, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (herein referred to as the Plumbers), the Laborers, and the Employer appeared at the hearing and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to adduce evi- dence on the issue. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated to the following facts: Howard Olson Landscaping, Inc., is a California corporation with its principal' office in Los Angeles, California, and it is engaged in the business of landscaping as a subcon- tractor of general contractors in the building and con- struction industry. During the calendar year 1970 it performed services valued in excess of $50,000 for firms each of which met the applicable Board standard for assertion of jurisdiction over it. We find that the Em- ployer 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. 195 NLRB No. 36 II. THE LABOR ORGANIZATIONS INVOLVED 247 The parties stipulated and we find that Laborers' International Union of North America, Local 300, AFL-CIO, and Local 345, United Association of Jour- neymen and Apprentices of the Plumbing and Pipefit- ting Industry of the United States and Canada, AFL- CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer operates a landscaping business in the Southern California area. As part of its landscaping work it installs lawn sprinkler and irrigation pipe sys- tems and has done so for the past 20 years. Prior to February 1970, the Employer performed the smaller jobs itself and subcontracted those jobs which, because they were too big, it was unable to handle. During this period the work it performed included some commer- cial work, although the bulk of its work was residential. Very recently the Employer has been trying to grow to the point where it performs the bigger jobs rather than subcontracting such work. Apparently as part of that effort, the Employer on February 4, 1970, signed a contract with the Plumbers covering its landscaping division. Since that time the Employer has assigned the work of installing lawn sprinkler and irrigation pipe to a plumber, if one is available. Where plumbers were not available the work was apparently performed by labor- ers. In February 1971, the Employer had a contract for grading, irrigation, and landscaping of a jobsite located at 12530 Braddock Drive, Mar Vista, California, where six apartment buildings with 400 units were under con- struction. On February 9, 1971, Francis Cherney, the business manager for the Plumbers, filed a grievance alleging that laborers were installing irrigation and lawn sprinkler systems at the Mar Vista jobsite in viola- tion of the contract between the Employer and the Plumbers. A hearing was held in Los Angeles on March 16, 1971, before the joint arbitration board of the plumbing and pipefitting industry in California, The grievance was upheld and the Employer was di- rected to pay $630 into the Plumbers' pension trust fund as a penalty. The Laborers did not in any way participate in that hearing. On April 30, 1971, Kenneth R. White, Employer's labor relations consultant, wrote a letter to Lionel Richman, attorney for the Laborers, informing him of the dispute and advising him that in the future the Employer would assign such work to members of the Plumbers as opposed to members of the Laborers. On May 19, 1971, Richman wrote a letter to White which states that if the work were assigned to the plumbers, "we will recommend to, and Local 300 will 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take, immediate economic action against your client. I assume the phrase economic action is specific enough to include picketing." On May 24, 1971, Employer filed the 8(b)(4)(D) charge in the instant case. B. Work in Dispute The work in dispute is the handling, laying, and installing of lawn sprinkler and irrigation pipe at com- mercial jobsites.' C. Contention of the Parties The Plumbers Union claims the disputed work on the basis of its contract with the Employer . The Labor- ers Union claims the disputed work on the basis of company practice and its contract with the Employer. The Employer contends that in the interest of efficiency and economy of operations it should be permitted to assign the work to whomever is available at the jobsite. D. Applicability of the Statute The charge which was duly investigated by the Re- gional Director alleges a violation of Section 8(b)(4)(D) of the Act. The Regional Director was satisfied on the basis of such investigation that there was reasonable cause to believe that a violation had been committed and therefore that a hearing should be held in accord- ance with Section 10(k) of the Act . On the basis of the entire record including the Laborers threat to take eco- nomic action, including picketing, unless its work as- signment demands were met, we find there is reasona- ble cause to believe that a violation of the Act has occurred and that the dispute is properly before the Board for determination. E. The Merits of the Dispute As stated in J. A. Jones Construction Company,' we shall determine the appropriate assignment of disputed work in this case presented for resolution under Section 10(k) of the Act only after taking into account and balancing all relevant factors. 1. Company practice As noted above, it had been, prior to February 1970, the Employer's practice to assign all of the installation of lawn sprinkler and irrigation pipe which it per- formed to laborers. While the bulk of that work was residential work , some of it was commercial and per- formed by the laborers . Very recently the Employer has ' Commercial jobs apparently include all jobs except those done at resi- dences for individual homeowners ' International Association of Machinists Lodge No 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402 been trying to expand to the point where it performs more of the larger commercial jobs itself rather than subcontracting such work. The Employer's effort in this regard began at a time roughly coincident with its signing of a contract with the Plumbers . Since signing that contract the Employer has assigned the installa- tion of lawn sprinkler and irrigation pipe to a plumber if one is available, but otherwise to the laborers. The Employer's long history of assigning the work to labor- ers, together with Employer's continued assignment of the work to laborers in some circumstances after execu- tion of its contract with the Plumbers , weighs in favor of an award to the employees represented by the Labor- ers. 2. Contracts Both the Laborers and Plumbers rely heavily on the terms of their respective contracts with the Employer to support their claims for the disputed work. The Plumbers contract provides specifically that the work covered includes "All lawn sprinkler work including piping, fitting, and lawn sprinkler heads." Moreover, the Employer acknowledges that at the time it signed its contract with the Plumbers it understood that the Plumbers was claiming lawn sprinkler work. The Em- ployer has not signed the current Laborers contract but is in compliance with its terms . In relevant detail, under its work coverage provisions the Laborers contract pro- vides that the work covered includes such items as digging of trenches and ditches in preparation for lay- ing pipe or conduit for any purposes ; loading, unload- ing, sorting, and stock piling of water mains, gas mains, and all pipe including placing , setting, and removal of skids; handling and placement of material for saddles, beds, or foundations for the protection of pipes and wire conduits; and for back-filling and compacting of all ditches, restoration of lawns , and landscaping. In the section detailing the duties of various classifica- tions, persons in the classification of pipe -layer are de- scribed as laying and installing receiving pipe until completion of the operation including any and all me- tallic and nonmetallic conduit used for any substance or element, whether water, sewage , solid, gas, air, or any other product whatsoever, without regard to the nature of the material from which the tubular material is fabricated. The provisions of the Plumbers contract are suffi- ciently broad to include the work of handling , laying, and installing lawn sprinkler and irrigation pipe re- gardless of the nature of the job. The provisions of the Laborers contract are equally broad . As each contract has such a general clause sufficiently broad to cover all work in this area and the coverage of neither is limited to just the work in dispute , we conclude that this factor LABORERS' LOCAL 300 does not favor the assignment of the work to either group of employees. 3. Area practice and industry practice The record indicates that the area and industry prac- tice is mixed. Accordingly, we find that this factor does not favor the assignment of the work to either group of employees. 4. Efficiency and economy of operations No evidence was presented which would indicate that it would be more efficient to assign the work to either of the two groups . However, the Employer, as indicated above, contends that this factor requires that the work not be assigned to either of the two contend- ing groups , but instead that it require an award permit- ting it to assign the work to whichever group of em- ployees happens to be on the jobsite at the time. Nothing in the record indicates that Employer will encounter any special difficulty if the work is assigned to one or the other group of employees . Rather it ap- pears that the Employer's contention in this regard is based primarily on personal convenience rather than efficiency and economy of operation . We find that this factor favors neither group of employees. 5. Employer preference The Employer does not state a preference between the laborers and plumbers . Instead, as noted above, it prefers an award , for the reasons discussed and rejected above, which would permit it to assign the work to whichever employees happen to be on the jobsite at the time. We find that this factor does not favor the assign- ment of the work to either group of employees. CONCLUSION 249 Based on the entire record and after full considera- tion of all the relevant factors, we conclude that the disputed work should be assigned to employees repre- sented by the Laborers on the basis of the long com- pany practice of assigning the installation of lawn sprinkler and irrigation pipe systems to this group of employees. Accordingly, we shall determine the exist- ing jurisdictional dispute by awarding the work of han- dling, laying, and installing lawn sprinkler and irriga- tion pipe, at the jobsite located at 12530 Braddock Drive, Mar Vista, California, to employees represented by the Laborers . In making this determination, we are assigning the disputed work to employees who are represented by the Laborers and not to the Laborers or its members. Our present determination is limited to the particular dispute which gave rise to this proceed- ing. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and on the basis of the forego- ing findings and the entire record in this proceeding the National Labor Relations Board hereby makes the fol- lowing determination of dispute: Employees employed by the Employer who are represented by Laborers ' International Union of North America, Local 300, AFL-CIO, are entitled to perform the work of handling , laying, and installing lawn sprin- kler and irrigation pipe in connection with Employer's operation at 12530 Braddock Drive, Mar Vista, Cali- fornia.