Plumbers Local Union No. 208

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 208 and Local Union No. 3, AFL-CIO and Midwest Engineering Service, Inc. and Local Union No. 9, Sheet Metal Workers' International Association, AFL-CIO. Case 27-CD-134 tems. It regularly performs such service for customers outside the State of Colorado and the annual value of such work is in excess of $50,000. We find that the Employer is engaged in com- merce 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. October 17, 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, following a charge filed by Midwest Engineering Service, Inc., herein called the Employer, alleging that United As- sociation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 208, AFL-CIO, herein called Local 208, had violated Section 8(b)(4)(D) of the Act.' Pursuant to notice, a hearing was held in Denver, Colorado, before Hearing Officer Merrill M. McLaughlin on February 22 and 23 and March 13 through 16, 1972. All parties appeared and were afforded full opportunity to be heard, to exam- ine and cross-examine witnesses, and to present evi- dence bearing on the issues. Thereafter, the Employer, Local 208, and Local 9 each 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 Na- tional Labor Relations Board has delegated its au- thority 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. BUSINESS OF THE EMPLOYER The Employer, a Colorado corporation whose principal office is in Denver, Colorado, is engaged in testing, adjusting, and balancing climate control sys- 1 At the hearing, United Association of Journeymen and Apprentices of the Plumbing and Pipefittmg Industry of the United States and Canada, Local Union No 3, AFL-CIO, herein called Local 3, also named as a Respondent, moved to dismiss the complaint and quash the notice of hearing as to It on the grounds that no testimony had linked Local 3 to any alleged 8(bX4)(D ) violation or to any claim for the work in dispute Neither Local Union No. 9, Sheet Metal Workers' International Association , AFL-CIO, herein called Local 9, nor the Employer opposed the motion. Local 3's motion is hereby granted. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Pipefit- ters 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 engaged in the business of testing, adjusting, and balancing the air and hy- dronic 2 portions of climate control systems since Jan- uary 9, 1962. The Employer provides this service only; it does no design engineering, installation, or repair work. When it began operation the Employer utilized sheetmetal workers represented by Local 9 to do air balancing and pipefitters represented by Local 208 for hydronic balancing. Pursuant to this division of work, the Employer entered into collective-bargaining agreements with Local 9 and Local 208 in 1967 and 1968, respectively. In December 1970, after a 2-year hiatus, the Employer decided to reaffiliate with the Associated Air Balance Council, hereinafter referred to as the Council, an association formed in 1965 by a number of companies engaged in the independent testing, adjusting, and balancing of climate control systems. Upon reaffiliation with the Council the Em- ployer was required to become a signatory to the na- tional agreement between the Council and the Sheet Metal Workers' International Association which pro- vided that all the Employer's balancing technicians must be represented by a Sheet Metal Workers local. Subsequently, on March 24, 1971, the Employer notified Local 208 that it would not renew its agree- ment with that local when it expired on June 1, 1971. On June 1, the Employer offered to retain three pipe- fitter employees covered by Local 208's agreement if they were willing to work under the terms and condi- tions of the agreement between the Council and the Sheet Metal Workers' International Association. The three employees refused and the Employer terminated them that day. Thereafter, the Employer -abided by the terms of the Council's agreement with the Sheet Metal Workers' International Association and as- 2 The hydronic portion of a climate control system utilizes water for heat- ing or cooling. 199 NLRB No. 87 PLUMBERS LOCAL UNION NO. 208 signed the work of testing, adjusting, and balancing both the air and hydronic portions of climate control systems to employees represented by Local 9. The events which gave rise to this case occurred on July 27, 1971, at Buckley Air National Guard Base in Denver, Colorado, at a building under construction known as the Air Force Department of Aerospace Data Facility. When one of the Employer's balancing technicians, a member of Local 9, went to the jobsite to start testing, adjusting, and balancing both the air and the hydronic portions of the climate control sys- tem, he was immediately informed by a Local 208 steward that only members of the Pipefitters Union would be permitted to perform the work on the hy- dronic system. Shortly thereafter, other balancing technicians of the Employer started the work of bal- ancing the air system; no craft objected to the Employer's technicians performing this portion of the work. After Local 208 's members, employed by Mae- con, Inc., the mechanical contractor on the job, threatened to walk off the entire job if balancing tech- nicians who were not members of their craft per- formed the work on the hydronic system, Maecon, Inc., in order to resolve the dispute, assigned one of its employees who was a member of Local 208 to accompany the Employer's balancing technicians and turn the valves fitted to the hydronic portion of the climate control system. The next day the business agent for Local 9 appeared at the jobsite and told the job steward for Local 208 that the work of hydronic balancing was claimed by the balancing technicians of the Employer who were represented by Local 9. The work was completed in August 1971 in accord- ance with the arrangement established by the me- chanical contractor. B. The Work in Dispute The work in dispute involves the testing, adjust- ing, and balancing of the hydronic portions of climate control systems performed by the Employer, includ- ing that done at the Buckley Air National Guard Base in Denver, Colorado. ' C. Contentions of the Parties Local 208 claims that the Board lacks jurisdiction to make an award as there is no dispute within the meaning of the Act. It argues that Local 9-made no claim to perform the hydronic balancing work in- volved in this case, other than its claim at the hearing. Furthermore, Local 208 contends that there is no rea- sonable cause to believe that it violated Section 8(b)(4)(D) inasmuch as its actions were merely an 791 attempt to preserve work for its members, which tasks, it asserts, Local 208's pipefitters have tradition- ally performed. Local 208 argues that assignment by the Employer of the disputed work to sheetmetal workers does not merit consideration since its assign- ment was not voluntarily effected; it argues that the only reason the Employer changed the assignment was that it had to comply with the requirements of the Council. Local 208 states, moreover, that the func- tions of air balancing and hydronic balancing are per- formed separately for the most part and, in many cases, they are done on a piecemeal basis which re- quires the employee to leave the jobsite and return when the system is further advanced. Also, the Employer's jobs are awarded to it on a hydronic or air balancing basis, Local 208 argues. Finally, Local 208 asserts that the economy factor of the work involved favors the use of pipefitters. Local 9 claims the disputed work by virtue of the agreement between the Sheet Metal Workers' Inter- national Association and the Council, of which the Employer is a member. Further, Local 9 claims that the balancing technicians employed by the Employer who are members of Local 9 are competent to do the work and have the contractual right to do so. The Employer argues that the work should be awarded to the sheetmetal employees to whom it has assigned the disputed work. The Employer contends that the work of testing, adjusting, and balancing air and hydronic portions of climate control systems is a quasi-engineering function which does not involve skills already developed, used, or applied by either pipefitters or sheetmetal workers in the traditional aspects of their craft. The Employer states that it is bound by the terms of the agreement between the Council and the Sheet Metal Workers' International Association and its agreement with Local 9. The Em- ployer further contends that its work assignment is favored by the practices of like independent bal- ancing concerns, and that it would be more efficient to employ a single technician to perform the interre- lated and interdependent tasks of balancing air and hydronic portions of climate control systems. D. Applicability of the Statute Before the Board may proceed to a determina- tion 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 record shows that the Employer assigned the disputed work to its employees, who are represented by Local 9, and that Local 208 on July 27, 1971, demanded that the Employer reassign this work to pipefitters whom 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it represented. As the record reveals that Local 208 threatened to walk off the entire Buckley job to en- force its demands for the assignment of the work, we find that there is reasonable cause to believe that Sec- tion 8(b)(4)(D) has been violated. We find no merit in Local 208's claim that by its actions it was merely seeking to preserve work for its displaced members. In Waterway Terminals Company, 185 NLRB No. 35, the Board held that where a union by its conduct merely seeks the reemployment of spe- cific dislocated workers and the continued application of the collective-bargaining agreement covering them, such a dispute is not the type of controversy Congress intended the Board to resolve pursuant to Sections 8(b)(4)(D) and 10(k). Here, however, the record is devoid of any demand for the reemployment of the three pipefitters represented by Local 208 whom the Employer discharged on June 1, 1971, and for the continued application of the expired collective agree- ment to them. Indeed, that the instant dispute in no way involved the employment interest of these pipefit- ters is clearly indicated by the Employer's offer of employment to all three. On the other hand, Local 208 made a demand for the disputed work and, without ever requesting that the Employer rehire the dis- charged pipefitters, it threatened to stike if the tasks were not assigned to its members generally. It is there- fore clear that Local 208's actions were of the type Congress sought to remedy by the application of Sec- tions 8(b)(4)(D) and 10(k). Moreover, contrary to Local 208's contention, Local 9 has not made any disclaimer of any of the work its members perform in testing, adjusting, and balancing the hydronic portions of climate control systems. The record fails to show that the Employer is a party to an agreed-upon method for the voluntary adjustment of such disputes. Accordingly, since the Employer is not bound, it is unnecessary to consider whether the other parties are bound by similar proce- dures? Accordingly, from the above we find that the matter is properly before the Board for determination under Section 10(k) of the Act. 1. Certification and collective-bargaining agreements There is no Board certification determining the bargaining representative for the employees assigned to perform the work in dispute. The Employer has been a party to a collective- bargaining agreement with Local 9 since January 9, 1967. Until January 1, 1971, it only covered employ- ees who were engaged in air balancing. On that date, the Employer reaffiliated with the Council and thus became bound by the agreement between the Council and the Sheet Metal Workers' International Associa- tion which specified that it had to utilize employees represented by Sheet Metal Workers to perform work on both the air and hydronic portions of climate con- trol systems. The Employer's only agreement with Local 208 was effective from July 18, 1968, to June 1, 1971; pursuant thereto it assigned the work of hydronic bal- ancing to those pipefitter employees who were repre- sented by that local. As noted above, on March 24, 1971, the Employer gave Local 208 notice that be- cause it had reaffiliated with the Council it would not renew its agreement with that local when it expired on June 1, 1971. 2. Employer's assignment and practice Since the expiration of its agreement with Local 208, the Employer has assigned all of its work on the hydronic portions of climate control systems to em- ployees represented by Local 9. The Employer performs at least 75 percent of all testing, adjusting, and balancing of air and hydronic portions of climate control systems among the con- cerns engaged in such work in the Denver and other Colorado areas. Inasmuch as the Employer is the dominant independent balancing concern within the State of Colorado, the Employer's practice is tanta- mont to the area practice. The record also shows that the Pipefitters has no members working for any independent balancing companies within the State of Colorado. 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 in- volved. The following factors are relevant in making a determination of the dispute before us. 3 International Association ofBridge, Structural and Ornamental Iron Work- ers, Local Union No 3, AFL-CIO (Dickerson Structural Concrete Corp.), 195 NLRB No. 90. 3. Relative skills, efficiency, and economy of operations The Employer favors an award to its employees represented by Local 9 because of their skills and training and the resulting efficiency and economy of operations. It has been the Employer's experience that nei- ther union can furnish members who are fully qual- ified to engage in the total process of testing, balancing, and adjusting air and hydronic systems. PLUMBERS LOCAL UNION NO. 208 The Employer had found, however, that it has had more success training sheetmetal workers than pipe- fitters. Furthermore, Local 208, whose members have some training in the balancing and adjusting of hy- dronic systems, does not claim that its members are competent in the balancing of air systems. Due to the integrated nature of air and hydronic balancing, it is more efficient for one man to be skilled in both air and hydronic balancing. Moreover, members of Local 208 have had no experience in preparing the balance reports which are part of the Employer's operation, a task now performed by its employees represented by Local 9. Thus, if required to assign this work to pipefitters represented by Local 208, the Employer would have to bear the burden and expense of training additional employees to properly perform the work. And the Employer would be forced to lay off sheetmetal work- ers in order to hire pipefitters. Additionally, such frag- mentation of the integrated process of balancing air and hydronic portions of climate control systems would needlessly waste time, lower overall productiv- ity, and raise production costs 4 We are, therefore, persuaded that all of the above cited factors favor an award of the work to the Employer's own employees, who are represented by Local 9. Conclusion Upon the entire record in this proceeding, and after full consideration of all the relevant factors, in particular the contractual relationship between the Employer and the Sheet Metal Workers, the Employer's practice, the nature of the work involved, the skills and training required, and efficiency and economy of operations, we conclude that the employ- ees of the Employer who are represented by Local 9 are entitled to work in question and we shall de- termine the dispute in their favor. In making this de- termination, we award the work to the employees of 4 See Kahoe Air Balance Co., 197 NLRB No. 17, and Precisionaire, Inc, d/b/a Mechanical Balancing Company, 195 NLRB No. 127. 793 the Employer who are represented by Local 9 but not to that Union or its members.' 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees employed by Midwest Engineering Service, Inc., who are represented-by Local Union No. 9, Sheet Metal Workers' International Associa- tion, AFL-CIO, are entitled to perform the work in dispute which involves testing, adjusting and bal- ancing the hydronic portions of climate control sys- tems at the Aerospace Data Facility at Buckley Air National Guard Base located in Denver, Colorado. 2. United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 208, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Mid- west Engineering Service, Inc., Denver, Colorado, to assign the above work to pipefitters represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 208, AFL-CIO, shall notify the Re- gional Director for Region 27, in writing, whether it will refrain from forcing or requiring Midwest Engi- neering Service, Inc., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination. 5 The Employer urges that the Board determine that the Employer has the right to use sheetmetal workers, rather than pipefitters, whenever the work of testing, adjusting, and balancing the hydronic portions of climate control systems is done in Colorado However, as the record will not support an order of such scope, we shall limit our award to thejobsite 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