Local 1184, Laborers Intl.

LOCAL 1184, LABORERS INTL. 77 Local 1184, affiliated with Laborers International Union of North America and Massey Sand and Rock Co. and Local Union 364, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada. Case 21-CD-309 July 10, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Massey Sand and Rock Co., hereinafter called the Employer, alleging that Local 1184, affiliated with Laborers International Union of North America, hereinafter called Laborers, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain I work' to employees represented by the Laborers rather than to employees represented by Local Union 364, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, hereinafter called Plumb- ers. A duly scheduled hearing was held before Hearing Officer David G. Weber on March 15, 1972, in Los Angeles, California. The Employer and 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. No appearance was made at the hearing on behalf of Plumbers. Thereafter, the Employer and Plumbers filed briefs. 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 rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer, Massey Sand and Rock Co., is a California corporation engaged in the construction of streets and airports and the installation of utility water pipelines and water distribution lines; that it annually purchases and causes to be shipped directly to and from points located outside the State of California goods, 198 NLRB No. 16 supplies, and materials valued in excess of $50,000; and that it annually performs services valued in excess of $50,000 outside the State. 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 The parties stipulated, and we find, that Laborers and Plumbers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In December 1971, the Employer was engaged in the installation of utility water pipelines and water distribution pipelines at the following construction projects: Winmar of the Desert, Palm Desert, California; Balboa Country Club, Indian Wells, California; Mountain Shadows Estates, Palm Springs, California; and Tri-Palms Estates Trailer Park Development, Thousand Palms, California. The pipe installation work on these projects involves placing asbestos cement (transite) pipe of 4-inch to 12-inch diameter in a trench, lubricating the ends of the sections, and pushing them together. The Employer assigned the work to its employees represented by Laborers, with which the Employer has a longstanding agreement. Sometime in December 1971, Plumbers, relying on an agreement executed by the Employer on February 12, 1971, notified the Employer that the Employer's Tri-Palms water pipeline installation project required the use of employees represented by Plumbers. Laborers were informed of this claim. By letter dated December 17, 1971, Laborers notified the Employer that any reassignment of the pipe installation work would violate the parties' current agreement. By letter dated January 27, 1972, the Employer request- ed Plumbers to contact the Laborers in regard to the dispute. On February 1, 1972, Plumbers filed a grievance against the Employer with the Pipeline Contractors' Association and Plumbers District Council # 16, alleging that the Employer had failed to hire and use plumbers to perform utility water pipeline work at the four above-named projects in violation of the parties' current agreement. By letter dated February 9, 1972, Laborers advised the Employer's attorney that if the Employer changed the assignment of the utility pipe installa- tion work within Riverside and Imperial Counties to employees represented by Plumbers, Laborers would 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike each and every project where such a change was made. The Employer has at all times continued to use laborers to perform the pipe installation work. B. The Work in Dispute Laborers and Employer stipulated that the work in dispute consists of the laying and installation of utility water pipelines and water distribution pipe- lines at the four above-named construction projects. C. Contentions of the Parties The Employer and Laborers contend that the present case is virtually indistinguishable from H. M. Robertson Pipeline Constructors,' and therefore as- signment of the disputed work should be made, as in Robertson, to the employees represented by Laborers. The Employer further contends that the assignment of the work should not be limited to the four named projects, but should include similar projects through- out San Bernardino, Riverside, and Imperial Coun- ties, California, which are within Laborers jurisdic- tion, or, in the alternative, all jobs in the above- named counties on which similar disputes may arise involving the Employer. Laborers seeks a Board order assigning the disputed work to its members on all jobs within the respective jurisdictions of Labor- ers and Plumbers. Plumbers, on the other hand, contends that the order should be limited to the four specifically named jobs of the Employer. Plumbers concedes that it elected not to participate in the hearing, but argues that its failure to appear could only be construed as a concession that, under applicable Board precedent, it could not reasonably expect the Board to award the work in dispute to its members. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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, and that there is no agreed-upon method for the voluntary adjustment of the dispute. The charge alleges a violation of Section 8(b)(4)(D) of the Act. The record shows that in December 1971, Plumbers demanded that the Employer use employ- ees represented by Plumbers to perform the utility pipeline installation work which the Employer had assigned to employees represented by Laborers, that thereafter Laborers threatened that, if the Employer changed the work assignment pursuant to Plumbers claim, Laborers would strike each and every project where the change was made. The parties, stipulated that there has been no voluntary adjustment of the dispute among the parties. Based on the foregoing and the entire record, we find that reasonable cause exists to believe that Laborers violated Section 8(b)(4)(D) of the Act, and 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 Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors. The following factors are relevant in making a determina- tion of the dispute before us. 1. Certification and collective-bargaining agreements The parties stipulated that there is no Board certification of bargaining representative for the employees who are performing the work which is the subject of dispute. The Employer has recognized Laborers and has had a longstanding contractual agreement with it which appears to contemplate that employees repre- sented by Laborers are to perform the work in dispute. Although Plumbers entered into a collective- bargaining agreement with the Employer on Febru- ary 12, 1971, which appears to assign a portion of the work to employees it represents, the Employer has not honored this provision of the agreement. The Employer stated that it entered into that agreement in order to be able to engage in projects requiring plumbers to perform welding type work which, the Employer contends, constitutes less than I or 2 percent of the work of installing waterlines. We are not satisfied that either the contractual agreement of Laborers or Plumbers with the Employer is entitled to controlling weight for the purposes of our determination.2 Accordingly, we regard the contracts as a neutral factor which does not favor either labor organization. 2. Company and industry practices The Employer has been engaged in installing water systems in the area of Riverside, San Bernardino, and Imperial Counties for approximately 25 years. The record indicates that, with one exception, all installation of transite pipe by the Employer in the past has been done with laborers. The record in this 1 Local 1184, Southern California District Council of Laborers (H M evidence the record in that proceeding (C P. Exh 5). 'Robertson Pipeline Constructors), 192 NLRB No 157, which involved the 2 Our decision herein should not be construed as reflecting upon the same two Contesting unions and the same type of work at a different project merits of Plumbers contractual claim vis-a-vis the Employer in the same area There being no objection, the hearing officer received into LOCAL 1184, LABORERS INTL. proceeding, as in H.M. Robertson, supra, establishes that the industry practice in the Southern California area favors laborers. Therefore, we find these factors favor assignment of the disputed work to employees represented by Laborers. 3. Skills, efficiency, and economy There is nothing in the record to indicate that the employees represented by either Laborers and Plumbers could perform the disputed work with greater skill or to the greater satisfaction of their employer. The record indicates, however, that the use of a crew of four or five laborers is more efficient and economical than a crew consisting of plumbers only, or a crew of plumbers and laborers. Under its present practice, the Employer uses laborers when not engaged in stabbing or joining pipes, in leveling trenches, centering pipe, lowering pipe into the ground, shading pipe, and backfill operations. The record also shows that on one occasion when a plumber was employed he was nonproductive ap- proximately 80 percent of the workday, as the Employer found that plumbers want to perform only the pipe joining functions and are unwilling to handle the pipe or perform other requisite installa- tion duties. The Employer and other contractors further asserted that, through experience on the job, their laborers had become proficient in all aspects of the pipelaying operation, and that a plumber is needed only when welding is involved. As stated above, the Employer claims that welding constitutes less than 1 or 2 percent of the installation work. In these circumstances, we find that these factors favor an award to employees represented by Laborers. Conclusions Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's employees who are represented by Laborers are entitled to perform the work in dispute. We reach this conclusion upon the Employer's assignment of the disputed work to its employees who are represented by Laborers; the fact that this assignment is consistent with the Employer's own past practice and that of many of its competitors in the area; the further fact that laborers employed by the Employer have the requisite skill and are familiar with all facets of the work; and the attendant efficiency and economy of the established operations. We shall therefore determine the dispute before us by awarding the work in dispute to those 3 Indeed Board records indicate that a similar case is pending in the same region, Case 21-CD-295 4 Local 294, International Brotherhood of Teamsters, Chauffeurs, Ware- 79 employees represented by Laborers, but not to that Union or its members. As set forth above, the Employer and Laborers, in opposition to Plumbers, request that the Board issue the broadest possible order. The Employer argues that the present dispute has arisen in the past and, in the absence of a broad order, will continue to recur in the future. The Employer asserts that, in addition to the four above-named projects, it has at least six additional jobs in the same area involving the same type of installation and employing the same crews. Laborers business manager testified that Laborers intends to continue to threaten economic action against contractors who attempt to, or indicate that they will, reassign the disputed work to Plumbers. Moreover, there is nothing in the record that would indicate a voluntary adjustment of the dispute within the foreseeable future.3 The Board has previously held that it will not restrict the scope of its determination to a specific jobsite if there is evidence that similar disputes may occur in the future.4 Accordingly, in view of the evidence before us, we hold that the determination in this case applies not only to the jobs in which the dispute arose but to all similar work done or to be done by the Employer on any other projects in San Bernardino, Riverside, and Imperial Counties, Cali- fornia, where the jurisdictions of these two Unions coincide. 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: Employees of Massey Sand and Rock Co., who are currently represented by Local 1184, affiliated with Laborers International Union of North America, are entitled to perform the work of installing and laying pipe and other related work at the construction projects Winmar of the Desert, Palm Desert, Califor- nia; Balboa Country Club, Indian Wells, California; Mountain Shadows Estates, Palm Springs, Califor- nia; Tri-Palms Estates Trailer Park Development, Thousand Palms, California; or any of the Employ- er's present and future projects in San Bernardino, Riverside, and Imperial Counties, California, where the jurisdictions of these two Unions coincide. housemen and Helpers of America (Bethlehem Steel Corporation), 174 NLRB 30, 33