Local 189, Plumbers

LOCAL 189, PLUMBERS 159 Local 189, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and Kahoe Air Balance Co. and Local 98, Sheet Metal Workers' International Associa- tion, AFL-CIO. Case 9-CD-248 May 26, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY engaged in the testing and balancing of mechanical heating, air conditioning, and ventilation systems used in buildings. During the past year, the Employer has performed services valued in excess of $50,000 for firms within the State of Ohio who in turn purchased goods and materials valued in excess of $50,000 directly from sources outside of Ohio. During the same period of time, the Employer had a gross volume of business in excess of $500,000. 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. This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Kahoe Air Balance Co., herein called the Employer or Kahoe, alleging that Local 189, United Association of Journeymen and Appren- tices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, herein called Pipefitters, had violated Section 8(b)(4)(D) of the Act. The charge alleges, in substance, that the Pipefitters, by threats and coercion, violated the Act in that one of the purposes of such conduct was to force the Employer to assign certain work to its members 'rather than to members of Sheet Metal Workers' International Association, AFL-CIO, Local 98, herein called Sheet Metal Workers. Pursuant to a notice, a hearing was held in Columbus, Ohio, before Hearing Officer Robert P. Hunter on February 11, 1972. The Employer and Respondent Pipefitters appeared and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues.' Thereafter, the Employer and Respon- dent Pipefitters filed briefs. Pipefitters also filed a Supplemental Brief, and the Employer filed a brief in answer thereto. The briefs 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 authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer, an Ohio corporation with principal office and place of business in Eastlake, Ohio, is ' Sheet Metal Workers, to whom Employer assigned the work in dispute subject to their bargaining agreement, did not appear at the hearing II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Pipefitters and Sheet Metal Workers 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 has been in the business of testing, adjusting, and balancing airconditioning, heating, and ventilating hot water and chilled water systems since 1959. The Employer sells no product other than service and does no installation or design engineer- ing. The Employer is a member of the Associated Air Balance Council, an association formed in 1965 by a number of companies engaged in the independent testing and balancing of mechanical systems. In 1969, a national agreement was signed between the Council and the Sheet Metal Workers International Association. Employer Kahoe signed both the master agreement and the amendment tailoring it to the test and balance industry, and the Sheet Metal Workers International and Local 98 thereof independently signed the agreement and amendment. For the past 3 years, the Employer's technical employees have been affiliated with the Sheet Metal Workers Association pursuant to this 1969 national agreement and amendment. Huffman-Wolfe Company, a mechanical contrac- tor belonging to the Mechanical Contractors Associ- ation of Central Ohio, Inc., has a contract to install the mechanical systems to be used in all buildings located at the Ashland Chemical Company jobsite in Dublin, Ohio. Pursuant to its performance obliga- tions under this contract, Huffman-Wolfe subcon- tracted the testing, balancing, and adjusting of the water system installed in the administration building at the Ashland Chemical jobsite to Employer Kahoe. 197 NLRB No. 17 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kahoe began performing as per its subcontract with Huffman-Wolfe and at all times has used its own employees, members of Local 98 of the Sheet Metal Workers, to perform the disputed work. On November 11, 1971, two of Kahoe's employees, members of Sheet Metal Workers, were working at the Ashland Chemical administration building when James Ely, president of Respondent Pipefitters, interrupted them. Ely informed Steiskal, one of the Kahoe employees, that a pipefitter must work with him on the water balance and, according to the testimony of Steiskal, insisted that Steiskal would not adjust the valves on the Ashland Chemical job while the fitters were present. After calling his Sheet Metal Workers business agent for instructions, Steiskal returned to work but later left the job, allegedly because of Ely's persistence in asserting that the adjustment of the valves would not be done by Steiskal while the fitters were present. The disputed work on the Ashland Chemical administration building was later completed by Kahoe's employees represented by Sheet Metal Workers, but Huffman-Wolfe refused to grant Kahoe the subcontract for the research building at that jobsite unless members of Respondent Pipefit- ters would be used. B. The Work in Dispute The work in dispute involves the assignment of the testing and balancing of water systems, including the adjustment of valves necessary to such testing and balancing, performed by Employer Kahoe in Ohio, including that performed at the Ashland Chemical Company jobsite located in Franklin County, Dub- lin, Ohio. C. Contentions of the Parties Respondent Pipefitters contends that the disputed work involves only the adjustment of the water system and that there is no dispute for the following reasons: (1) Employer Kahoe voluntarily submitted the instant dispute for resolution by the National Joint Board for the Settlement of Jurisdictional Disputes, thereby agreeing to a voluntary method of settling the dispute; (2) Respondent effectively renounced its claim to the disputed work within the meaning of the Safeway rule,2 thereby aborting 10(k) proceedings. Respondent Pipefitters further contends that, if the award of any work is forthcoming, such award should not apply to any jobsite other than that located at the Ashland Chemical Company. It is Employer Kahoe's position that: (1) it has 2 Highway Truckdrivers & Helpers, Local 107 (Safeway Stores, Incorporat- ed), 134 NLRB 1320, N L R B v. Plasterers Local Union No 79, Operative Plasterers' and Cement Masons' International Association, AFL-CIO [South- merely notified the Joint Board of the existence of a dispute and has not submitted the dispute for resolution; (2) Respondent continues to claim the work in dispute; (3) similar job disputes have arisen between Employer Kahoe and Respondent Pipefit- ters, as well as other Ohio locals of Pipefitters International, and there is reason to believe that identical work disputes will arise. 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 reasonable cause to believe that Section 8(b)(4)(D) has been violated. The charge herein alleges such a violation. The facts show that the Employer assigned the work to its employ- ees, who are represented by the Sheet Metal Workers. The Pipefitters demanded that the Employ- er take the work away from members of the Sheet Metal Workers and assign it to its members. As there is some evidence that Respondent Pipefitters has engaged in improper inducements to enforce its demands for assignment of the work, we find there is reasonable cause to believe a violation of the Act has occurred. With respect to the disclaimer by Respondent Pipefitters, such disclaimer was not made to the Employer and does not purport to disclaim any disputed work other than that at the administration building of the Ashland Chemical jobsite. Moreover, the Respondent, in any event, does not appear to have disclaimed the task of turning valves to control the flow of water, performed as a part of the testing and balancing procedure. Such disclaimer, therefore, does not effectively alter the nature of the jurisdic- tional dispute. The Employer's letter to the National Joint Board for the Settlement of Jurisdictional Disputes did not submit the dispute to the Joint Board for resolution, but merely notified the Joint Board of the dispute's existence. In such circumstances we do not view it as binding the Employer to the Joint Board procedures. Further, the record fails to show that the Employer is a party to a collective-bargaining agreement with either of the labor organizations here involved, or to a contract with Huffman-Wolfe, by which it has agreed to be bound by the Joint Board procedures.3 As we find that the Employer is not bound, it is unnecessary to consider whether the Sheet Metal Workers and the Pipefitters are bound by the Joint Board procedures. It is thus clear from the foregoing, and we find, that western Construction Co.], 404 U.S. 360. 3 Local 395, Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Telander Bros Contractors, Inc), 196 NLRB No 19 LOCAL 189, PLUMBERS 161 at the time of the instant dispute there did not exist any agreed-upon or approved method for the voluntary adjustment of the dispute to which all parties to the dispute were bound. Accordingly, the matter is properly before the Board for determina- tion under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors involved. The following factors are relevant in making a determination of the dispute before us. 1. Certifications and collective-bargaining agreements There is no Board certification determining the bargaining representative for the employees assigned to perform the work in dispute. None of the labor organizations involved herein has been certified by the Board as the collective-bargaining representative for a unit of Employer's employees. At no material time herein has the Employer been a party to a collective-bargaining agreement with the Pipefitters. The Employer has been a party to a collective-bargaining agreement with the Sheet Metal Workers since 1969.4 Respondent Pipefitters is a party to a collective- bargaining agreement with the Mechanical Contrac- tors Association of Central Ohio, Inc., of which Contractor Huffman-Wolfe is a member.5 2. Employer's assignment and past practice Pursuant to article I, section 2, of the Sheet Metal Workers Agreement, which provides that members of the Sheet Metal Workers have jurisdiction over, inter alia, ". . . adjustment of water flow valves as pertains to hydronic balancing, ..." the Employer assigned the work here involved to its employees represented by the Sheet Metal Workers. Further, since 1969 the Employer has assigned such work exclusively to its employees represented by the Sheet Metal Workers. Prior to that time, the Employer trained and used its own technicians, who were not affiliated with any union. 4 Art I, sec 2, of the Amendments to Standard Form Agreement of Sheet Metal Workers International Association and Associated Air Balance Council, to which both the Employer and Local 98, Sheet Metal Workers, are signatories, specifically covers the work in dispute Signatories to this agreement shall perform testing and balancing of all air handling equipment and duct work , including hydronic balancing, pneumatic and electric control adjustment . . . adjustment of water flow valves as pertains to hydronic balancing, and field sound testing. 5 Appendix A, Para 33 , Agreement By and Between Mechanical 3. Relative skills, efficiency, and economy of operations The Employer strongly favors an award to its employees represented by the Sheet Metal Workers because of their skills and training and the resulting efficiency and economy of operations. As part of the Sheet Metal Workers agreement, the Employer trains apprentices in every phase of the total process of testing, balancing, and adjusting both air and water systems. Respondent Pipefitters, however, while having some training in balancing and adjusting water systems, does not claim compe- tence or performance of balancing air systems. Due to the integrated nature of air and water balancing, it is not efficient for one man to be skilled in the air balancing stage and one to be skilled in water balancing only. Further, members of Pipefitters have had no experience in preparing the extensive balance reports which are part of the Employer's operation, now performed by its employees represented by the Sheet Metal Workers. Thus, if required to assign this work to Respondent Pipefitters, the Employer would bear the burden and expense of training additional employees to properly perform the work. Additionally, the Employer would be forced to lay off sheet metal workers in order. to hire pipefitters. Specifically, to require the Employer to award the turning of the valves, one small but integral facet of system balancing, to the pipefitters would result in unwarranted inefficiency and increased construction costs. Indeed, if a pipefitter must be hired to turn the valves during the Employer's testing, balancing, and adjusting of the water system, the pipefitter would spend a considerable, if not the greater, portion of his time waiting for the sheet metal worker balance technician to instruct him when and how much to turn each valve, a process which often requires repeated adjustments of each such valve and repeat- ed checks and calculations for the result of each such adjustment. Obviously then, such' a situation in which one employee stands by until called on to perform one relatively minute task-at the direction of another employee capable of performing that task as well as. the complete balancing function, would needlessly waste time and create expense. We are, therefore, persuaded that the factors of skill and Contractors Association of Central Ohio, Inc and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 189, under which Pipefitters claims jurisdiction over the disputed work , does not specifically refer to such work It provides, in pertinent part, for the performance by the Pipefitters of the following work. All piping, setting and hanging of all units and fixtures for air- conditioning, cooling, heating . . by any method, and the charging and testing, servicing of all work after completion. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD training, efficiency and economy of operations dictate the award of the work to the Employer's own employees, who are represented by the Sheet Metal Workers. Conclusion Upon the entire record in this proceeding and after full consideration of all of the relevant factors, in particular the contractual relationship between the Employer and the Sheet Metal Workers, the Employ- er's practice, the nature of the work involved, the skills and training required, and efficiency and economy of operations, we conclude that the employees of the Employer who are represented by the Sheet Metal Workers are entitled to the work in question, and we shall determine the dispute in their favor. In making this determination, we award the work to the employees of the Employer who are represented by the Sheet Metal Workers but not to that Union or its members.6 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 hereby makes the following Determination of Dis- pute. 6 The Employer urges that a broad order issue determining that the Employer has the right to use sheet metal workers , rather than pipefrtters, whenever the testing, balancing , and adjusting of water systems is done in Ohio However, as the record will not support an order of such scope, we shall limit our award to the administration building and research building at 1. Employees employed by Kahoe Air Balance Co., who are represented by Local 98, Sheet Metal Workers' International Association, AFL-CIO, are entitled to perform the work in dispute which involves the testing, balancing, and adjusting of water systems, including the adjusting of valves necessary to such testing and balancing, in both the administration building and research building at the Ashland Chemical Company jobsite located in Franklin County, Dublin, Ohio. 2. Local 189, United Association of Journeymen and 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 Kahoe Air Balance Co., Eastlake, Ohio, to assign the above work to pipefitters represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 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 Kahoe Air Balance Co., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination. the jobsite where the instant dispute arose Local 395, Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Telander Bros Contractors, Inc ), 196 NLRB No 19, Laborers' International Union of North America Local 935, AFL-CIO (Interstate Drywall, Inc), 191 NLRB No 93