Plumbers, Local 469

700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers, Steamfitters, and` Refrigeration Local 469 and Precisionaire, Inc., d/b/a Mechanical Balanc- ing Company and Sheet Metal Workers' Interna- tional Association, AFL-CIO,-Local 359. Case 28- CD-134 March 6, 1972 DECISION AND DETERMINATION OF DISPUTE ate the ,policies of the Act to assert jurisdiction in this proceeding. II THE LABOR ORGANIZATIONS The parties stipulated, and we find, that the Plum- bers and the Sheet Metal Workers are labor organiza- tions within the meaning of Section 2(5) of the Act. III THE 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 Precisionaire, Inc., d/b/a Mechanical Balancing Company, hereinafter called Precisionaire, alleging a violation of Section 8(b)(4)(D) by the Plum- bers, Steamfitters, and Refrigeration Local 469, here- inafter called the Plumbers. Pursuant to notice, a hear- ing was held on October 19 and 20, 1971, at Phoenix, Arizona, before Hearing Officer Robert J. Deeny, Precisionaire, the Plumbers, and the Sheet Metal Workers', International Association, AFL-CIO, Local 359, hereinafter the Sheet Metal Workers, 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 Plumbers filed a motion to quash the proceeding. Precisionaire, the Plumbers, and the Sheet Metal Workers filed briefs with the National Labor Relations Board. 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. The rulings of the Hearing Officer made at the hear- ing are free from prejudicial error and are hereby affirmed. Upon the basis of the briefs and the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANY Precisionaire is an Arizona corporation located at 222 W. Osborn Road, Suite 304, Phoenix, Arizona, engaged in air and hydronic balancing; i.e., the adjust- ment of liquid and airflow through cooling systems. In the last 12-month period, a representative period of the Company's business, the Company performed services outside the State of Arizona valued in excess of $50,- 000. We find, accordingly, that Precisionaire is engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectu- ' Fully named, and signatory to the contract with University Mechanical Contractors of Arizona, Inc , as United Association of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No 469 A. Background and Facts of the Dispute The worksite where the dispute in this proceeding occurred is the construction site of the new home office building of the First National Bank of Arizona in Phoe- nix, Arizona. Henry C. Beck Company is the general contractor for the building and University Mechanical Contractors of Arizona, Inc., hereinafter University, holds the subcontract for the air-conditioning system. University, in turn, has a collective-bargaining agree- ment with the Plumbers to perform plumbing, heating, refrigeration, service, and piping work.' and a subcon- tract with Precisionaire to balance the air and water systems. Finally, Precisionaire has a collective-bargain- ing agreement with the Sheet Metal Workers. We note here that neither Henry C. Beck Company nor Univer- sity is a party to this proceeding, nor was either a participant in or represented at the hearing held in this matter. Precisionaire submitted its bid to University in November 1970. On July 13, 1971, Eugene Strickland, president of Precisionaire, received a telephone call from John Powell, general agent of University, which Precisionaire considers to have been an oral acceptance of its bid.' On July 14, 1971, Precisionaire sent its employee, Thomas Ekin, to the worksite. Soon after Ekin started to do his work an unidentified Plumbers shop steward interrupted him and, upon learning that Ekin was a Sheet Metal Worker, told Ekin he was doing Plumbers work and he would have to stop. Rep- resentatives of the parties to this proceeding and Uni- versity were notified of the problem. The business rep- resentatives of the Unions involved, Dudley Brown of the Plumbers and Leon Razee of the Sheet Metal Workers, informally discussed the situation and agreed that the Sheet Metal Workers should do the work. The following day Brown went to the worksite to review the work in question and after reassessing the situation, based on information not previously available to him 2 University is a member of the Plumbing and Air Conditioning Contrac- tors of Arizona, which group has a collective-bargaining agreement with Plumbers Local No. 469 and 741. 3 Later in 1971, University provided Precisionaire with a written contract with Precisionaire executed on October 12, 1971. This document, part of the evidence offered and accepted at the hearing, does not bear a signature by University 195 NLRB No. 127 PLUMBERS, LOCAL 469 701 rescinded his agreement that the work should be done by the Sheet Metal Workers and claimed the work for the Plumbers. Several other discussions among the par- ties to this proceeding and University followed, con- cerning who should turn the valves regulating the wa- ter in the air-conditioning system which was being started up. As a result of these discussions, during which the alleged threats were made by the Plumbers, University advised Precisionaire to withdraw its em- ployees from the worksite until the dispute could be resolved. Several months later, at which time the dis- pute had still not been resolved, Precisionaire filed the charges now before the Board. B. The Work in Dispute The notice of hearing issued by the Regional Direc- tor for Region 28 on September 23, 1971, states that the work in dispute involves-"The hydronic balancing, the adjustment of liquid flow through the cooling system, in connection with air conditioning installation. ..... The record of the hearing shows, more specifically, that the work in dispute at the worksite on July 14 and 15 involved the turning of valves to regulate the flow of water through the air-conditioning system. Preci- sionaire predicated its charges on this description of the work in dispute and presented evidence to support its claim for such work. The Sheet Metal Workers agrees with this description of the work in dispute. In fact, at one point, the record shows that Dudley Brown, the Plumbers business agent, testified that the work in dis- pute concerned the turning of valves. However, as intimated by the Plumbers at the hear- ing and based upon the entire record, the work in dis- pute is further complicated by the circumstances out of which the work arose; namely, whether the startup of the air-conditioning system on July 14 was for the pur- pose of providing temporary cooling or entailed the hydronic balancing of the system. Precisionarie contends that the work in dispute is adjunct to hydronic balancing. The Sheet Metal Work- ers agrees. To the contrary, the Plumbers contends that the work on July 14 and 15 was related to temporary cooling; but even if not, it also claims the work of turning the valves during hydronic balancing. Thus, the issue of whether the work relates to temporary cooling or hydronic balancing is critical to the resolu- tion of this dispute.' ' This confusion was partially brought about by the Plumbers apparent lack of preparation for the hearing. Although properly notified of the hear. ing, the Plumbers failed to appear at the designated time and place and the hearing was delayed a few hours until the Plumbers arrived with counsel. We would also reiterate here that University, the contractor for the air- conditioning system, is not a party to this proceeding and was not repre- sented at the hearing Thus, we are without the benefit of any light Univer- sity might shed on this proceeding The- record shows that Precisionaire went to the worksite to set up the water system to provide cooling for the workmen in the building .' Precisionaire- con- tends that this was work covered under its air and hydronic balancing subcontract with University. How- ever, the record suggests that the preconditions for hydronic balancing were not then present. First, some 30 or more plumbers were working on the installation of the air-conditioning system on July 14; the installa- tion had not been completed. Second, Strickland, Preci- sionaire's president, testified that " ... the system must be 100 percent complete before we can even start our work."6 Third, Ekin, Precisionaire's supervisory em- ployee, testified that ". . . the majority of the time the air balancing is done first and when the correct amount of air is being delivered from the fans, then the water balancing is done .... "' Fourth, there is no suggestion that the system was ready for air balancing. Finally, the record shows Precisionaire is a charter member of the Associated Air and Balancing Council (AABC) and that this association is set 4 to inspect and check out the cooling and heating systems in newly constructed buildings. Singly and in toto, these indications of record clearly suggest-that the type of work Precisionaire had subcontracted to perform is to be commenced when the air-conditioning system has been fully installed. Conse- quently, based on these facts of record, and for reasons stated ` infra; we find that Precisionaire was prematurely called to the worksite for the purpose of performing hydronic balancing. 5 Thomas Ekin, a supervisory employee of Precisionaire and a member of the Sheet Metal Workers, was sent to the worksite by Precisionaire to perform the work in question On direct examination , Ekin testified: Q. What work did you plan to do on July 14th? A. Just setting up of the water systems . In fact, if I remember cor- rectly, it was just to get the correct flow of water through their refrigera- tion chillers so they could turn them on They didn't care how much was going through the fan coils-through the coils, they just wanted the refrigeration set up so they could turn them on because it was hotter than hell, and the employees-everybody on the job was complaining about the heat. Q. And, this would have provided some cooling9 A Some sort of cooling and relief. On direct examination , Strickland testified: Q Since your firm does both air and water testing and balancing, I think the record should show what your technicians or employees do when they go to a job that has both air and hydronic elements in the systems A. Number 1, when we go on the job, we do a general overall mspec- tion of all components of that job , controls, pumps, fans, filters, make sure that everything that is specified by the specifying engineer and architect are installed and ready to operate, because the system must be 100 percent complete before we even start our work [Emphasis sup- plied.] On direct examination, Ekin testified: I would say that the majority of the time the air balancing is done first and when he correct amount of air is being delivered from the fans, then the water balancing is done, to take the temperature drops across the fans and this will show whether-if they jive, if you are moving and right amount of air and right amount of water, then all these formulas fall into place and say, "Yes, this is how much cooling you are doing " 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Contentions Precisionaire predicates its claim for the work in dispute on its subcontract with University to perform air and hydronic balancing of the air conditining sys- tem. Precisionaire contends that the skills of the work involved; company and industry practice; separate agreements with University and the Sheet Metal Work- ers, respectively; the assignment by University; and the efficiency of its operations support its assignment of the work to the Sheet Metal Workers. The Sheet Metal Workers predicates its claim for the work on its agreement with Precisionaire and on Preci- sionaire's subcontract with University, respectively. As such, it views the work in dispute to be the same as does Precisionaire. In arguments similar to those put for- ward by Precisionaire, the Sheet Metal Workers con- tends that company and industry practice; its agree- ment with Precisionaire; the assignment of work by University; and the efficient operations of Precisionaire support its claim. Contrary to the contentions of Precisionaire and the Sheet Metal Workers, the Plumbers predicates its claim on its agreement with University, not on University's subcontract with Precisionaire. The Plumbers contends that this agreement provides that it shall install, oper- ate, and do the preliminary testing of the water-piping system, including work relative to temporary cooling. Furthermore, the Plumbers contends that the work provided for in Precisionaire's subcontract with Uni- versity cannot be done until the air-conditioning sys- tem is completely installed and in operation. In support of this position, the Plumbers says that the air-condi- tioning system was still under construction in July 1971 and, therefore, the work specified in Precisionaire's subcontract cannot be involved in this dispute. the entire record, we conclude that there is reasonable cause to believe a violation of Section 8(b)(4)(D) has 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 the Board stated in J A. Jones Construction Com- pany,10 the Board is to determine the appropriate as- signment of disputed work in each case presented for resolution under Section 10(k) of the Act only after "taking into account and balancing the relevant factors. A number of the factors often relied on by the Board are of little assistance in determining the dispute herein. There is no certification by the Board applicable here, nor is there an agreement between the respective Inter- national Unions to assist in resolving the dispute. Moreover, the evidence presented by Precisionaire and the Sheet Metal Workers (skills involved, company and industry practice, employer preference, and economy and efficiency of operation , etc.) is related to the issue of hydronic balancing, which, as indicated earlier, based on the record of the hearing, does not appear to be timely raised here. Consequently, our primary focus here must be to determine whether the relevant agreements and con- tracts are consistent with the finding , based on the record of the hearing , that Precisionaire was prema- turely called to the worksite to perform hydronic bal- ancing. The Plumbers collective-bargaining agreement with University provides for the operation and testing of equipment that has been installed under their agree- ment before the equipment is accepted by the owner or his agent." This work includes starting up and check- D. Applicability of the Statute The charges herein allege a violation of Section 8(b)(4)(D) of the Act. In support of the charges Eugene Strickland, president of Precisionaire, testified that John Powell, general agent for University, told him that the Plumbers threatened to shut him down and, that he (Powell) could not afford to shut down the whole project for the minor amount of work in dispute here.' This threat of a -strike by the Plumbers is cor- roborated by the testimony of Thomas Ekin, a super- visor for Precisionaire, and by Leon Razee, the Sheet- Metal Workers business representative .' On the basis of 5 Strickland's testimony as to what Powell told him regarding the Plum- bers threat is hearsay, and was unobjected to at the hearing We are consid- ering it here for its probative value N.L R.B. v. International Union Operat- ing Engineers, Local Union No 12, 413 F 2d 705 (C.A 9); State v. Smith, 155 P 2d 622. Ekm testified that Dudley Brown the Plumbers business agent, said- "It was their [Plumbers] work and under no circumstances were we [Sheet Metal Workers] doing it." Further, Razee testified that Brown said to him: there was no way that he could go along with the Sheet Metal Workers doing the work, and that he had some 30 people down there just itching to walk off the job." 10 International Association of Machinists, Lodge No. 1743, AFL-CIO, 135 NLRB 1402. " This agreement reads, in part: 27. BALANCING OF AIR AND WATER SYSTEMS 27 The Contractor must procure the services of an independent Air Balance and Testing Agency. The Testing Agency shall be one which specializes in the balancing and testing of heating, ventilating, and air conditioning systems, to balance, adjust and test air moving equipment as herein specified All work by this agency shall be done under direct supervision of a qualified Heating and Ventilating Engineer employed by them All instruments used by this agency shall be accurately cali- brated and maintained in good working order. The air balance agency shall provide proof of having successfully completed at least five pro- jects of similar size and scope and shall be a certified member of the Associated Air Balance Council If requested, the tests shall be con- ducted in the presence of the Mechanical Engineer responsible for the project and /or his representative. Air Balance and Testing shall not begin until system has been completed and is in full working order The Contractor shall put all heating, ventilating and air conditioning sys- PLUMBERS, LOCAL 469 703 ing the equipment as well as work related to temporary cooling required by the owner or his agent until the equipment is accepted by the owner or his agent. Nei- ther the Charging Party, Precisionaire, nor the Sheet Metal Workers presented any evidence to show that the owner or his agent had accepted the equipment. Precisionaire's subcontract with University, on the other hand, provided for balancing of air and water systems.12 This subcontract specifically provides that air balancing and testing shall not begin until the sys- tem has been completely installed and is in full working order. There is no specific reference with respect to the timing of hydronic balancing. However, there is a provision in the subcontract signed by Precisionaire on October 12, 1971, to the effect that Precisionaire agrees to comply with the terms and conditions of labor agree- ments entered into by University and Henry C. Beck tems and equipment into full operation and shall continue the operation of same during each working day of testing and balancing The Contrac- tor shall submit after receipt of Contract, 7 copies of submittal data for the testing and balancing of the air conditioning, heating and ventilating systems. Company with labor unions. The Plumbers agreement with University is such an agreement. Accordingly, we find nothing in the applicable agree- ments and subcontract here in effect which is inconsist- ent with our finding that Precisionaire was prematurely called to the worksite for the purpose of performing hydronic balancing. Conclusions We have found that, based on the entire record, Precisionaire was prematurely called to the worksite for the purpose of hydronically balancing the air-condi- tioning system. Accordingly, we shall determine the existing dispute by deciding that the plumbers are enti- tled to work relative to providing temporary cooling. In making this determination, we are assigning the dis- puted work to employees of University Mechanical Contractors of Arizona, Inc., who are represented by the Plumbers, but not that Union or its members. In view of the determination here, and since we have found that issues related to hydronic balancing have not been timely raised, we shall limit our award herein to the particular controversy that gave rise to the dis- pute. 27 4 Chilled and Heating Water Systems. The Air Conditioning Con- tractor shall procure the services of an independent balancing agency to test, balance, and adjust all chilled water and hot water systems serving the air conditioning system within the confines of the buildings. The balance agency shall provide approved instrumentation to conduct the tests and balance all water flows. Water flows to all cooling coils shall be adjusted to the specified amounts as indicated 12 In pertinent part: I WORK COVERED F. When equipment is being started up or whenever temporary heat or cooling is required by the owner or his agent, any work or checking of equipment or operating of equipment shall be performed by Journey- men working under this Agreement until equipment is accepted by the owner or his agent. The filling of all lines and the operation and testing of all equipment that has been installed under this Agreement before the equipment is accepted by the owner or his agent, shall come under the jurisdiction of the parties to this Agreement. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceed- ing, the National Labor Relations Board makes the following Determination of Dispute: Employees who are represented by Plumbers, Steamfitters, and Refrigeration Local 469, are entitled to perform work related to the startup and operation of the air-conditioning system to provide temporary cool- ing in accordance with the collective-bargaining agree- ment between University and the Plumbers.