Plumbers, Local 345

22 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. 345 and Acme Sprinkler Company, Inc.; Interstate Landscape Corporation; Valley Crest Landscape, Inc.; A. F. Gaudenti Landscaping; Robert E. Sapien, Inc.; and Independent Irrigation Contrac- tors Committee and Laborers' International Union of North America, Local No. 89, AFL-CIO Laborers' International Union of North America, Local No. 89, AFL-CIO and Valley Crest Land- scape, Inc.; 5 Star Landscape, Inc.; Omega Landscape Company; Acme Sprinkler Company, Inc.; A. A. Attridge Sprinkler., Belsy Landscape;' Doose Enterprises ; A. F. Gaudenti Landscaping; United Sprinkler Co.; 2 Robert E. Sapien, Inc.; V. C. Moffitt & Co.; Interstate Landscape Corpora- tion; Kawai Brothers; Tom Moran Landscaping; Riverside Sprinklers, Inc.; Landscape Irrigation Spec.; Don Guilliams & Son; 3 and Independent Irrigation Contractors Committee and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 345 Laborers' International Union of North America, Local No. 89, AFL-CIO and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 345 and Riverside Sprinklers, Inc. Cases 21-CD-352, 21-CD-359, 21-CD-361, 21-CD-362, 21-CD-363, 21-CD- 360, 21-CD-364, 21-CD-366, 21-CD-368, and 21-CD-367 April 9, 1974 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, f,- '.low-ing charges filed by William N. Cohen, Esq., Stewart H. Young, Esq., John D. Collins, Esq., Richard M. Grossberg, Esq., and Eugene Miller, Esq., on behalf of the above-captioned Employers and Independent Irrigation Contractors Committee, alleging that Laborers' International Union of North America, Local No. 89, AFL-CIO, herein called the Laborers, and United Association of Journeymen and Appren- 1 No evidence was presented concerning this company. 2 Id 3 Id 210 NLRB No. 10 ties of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 345, herein called the Plumbers, have violated Section 81,b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employers to assign certain work to employees represented by the Plumbers, rather than to employees represented by the Laborers, or to employees represented by the Laborers, rather than to employees represented by the Plumbers, respec- tively. A duly scheduled hearing was held before Hearing Officer Roberto G. Chavarry on December 14, December 17, and December 18, 1973. The Employers, the Committee, and the Plumbers ap- peared at the hearing and were afforded a 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 Laborers. No briefs were filed. 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 af- firmed.4 Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYERS Counsel for the Plumbers read into the record from the Board's 10(1) petition in this matter and the opinion of the United States District Court for the Southern District of California, Civil No. 73-490-GT, in which the court found that all of the Employers involved in this proceeding, in the course and conduct of their business operations, each annually perform services valued in excess of $50,000 for customers located within the State of California, who annually purchase or receive goods, materials, and supplies valued in excess of $50,000 directly from suppliers located outside the State of Califor- nia. Accordingly, we find that the Employers are 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 In Local No. 89, Laborers' International Union of North America, AFL-CIO (Riverside Sprinklers, Inc.), 205 NLRB No. 147, involving the same two labor 4 On December 7, 1973, the Laborers filed a Motion to Quash. At the hearing the motion was opposed by the attendant parties. The Hearing Officer denied the Motion to Quash. PLUMBERS, LOCAL 345 23 organizations, the Board found that they were both labor organizations within the meaning of Section 2(5) of the Act. Accordingly, we find that the Laborers and Plumbers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts The Employers are contractors engaged in per- forming landscape works and installing lawn sprin- kler systems at various jobsites in San Diego County, California. They have contractual relations with the Laborers and the Plumbers. They use laborers to perform the landscaping work and to dig ditches. Sometimes large machines are used to dig the trenches. In this case operating engineers do the trench digging. The contractors have assigned the laying out of the lawn sprinkler system and the pipework, including the installation of valves and sprinkler heads, to plumbers. The plumbers first read the blueprints and interpret them. They then mark up the area with powder according to the plan from the point of the water source to show the location of the trenches and the sprinkler heads. It is their job to make sure that the installation is being performed in accordance with the plans and specifications. The pipe comes from the supply house and is delivered to a stockpile. The plumber moves the pipe from the stockpile to the trench. Then the pipe is laid in the trench. The pipe is joined together either by screw or glue by the plumber. After the pipe is joined together, the plumber tests it. Then the trench is backfilled by the laborer. Some irrigation systems feature complex automatic devices for turning the system off and on or for injecting fertilizer. The work of installing these devices is done by plumbers. On July 13, 1973, the Laborers sent a letter to 10 employers who are bound by the Master Labor Agreement of Laborers for San Diego County advising them that if the Employers assigned the work of lawn sprinkler irrigation to members of the Plumbers rather than to members of the Laborers, Laborers would picket and strike and/or remove its members from any of the Employers' present or future jobs in progress in San Diego County. This letter was sent to Valley Crest Landscape, Inc., A. F. Gaudenti Landscaping, Robert E. Sapien, Inc., 5 Star Landscape, Inc., Omega Landscape Company, A. A. Attridge Sprinkler, Doose Enterprises, V. C. Moffitt & Co., Riverside Sprinklers, Inc., and Landscape Irrigation Spec. In early 1973, Joe Alcosar, the vice president of Laborers, told Robert Weiland, the president and general manager of Interstate Landscape Corpora- tion, that the Laborers was going to take the irrigation work away from the Plumbers. Since August, 1973, the Laborers has sent Interstate three trust fund violation notices, presumably for having nonlaborers performing work at the jobsite. In one of these notices, specific reference was made to one worker who was a member of the Plumbers and who was performing the installation of the irrigation system. After these notices were received by the contractor on the job, McKellar and Associates, that contractor expressed a concern to Interstate concern- ing the progress of the work as a result of the apparent intent of the Laborers to interfere with the job. In March 1973, Solomon Johnson, a Laborers representative, told 5 Star Landscape, Inc., that he was going to shutdown the job on which 5 Star was working if the employer did not use laborers and issued three or four trust fund violation notices as a result of the work being done by plumbers. In addition, Valley Crest Landscape, Inc., has received trust fund violation notices from the Laborers, copies of which were sent to its contractors. On October 11, 1973, Studer, the Laborers attorney, informed Jack Anderson, secretary of Riverside Sprinklers, Inc., that if Riverside used laborers to perform the work of installation of lawn sprinklers, its contract with the Laborers would not be canceled and the charges of trust fund violations would be dropped. The Laborers sent cancellation notices to 12 employers with which it had short-form agreements. These employers included A. A. Attridge Sprinkler, Acme Sprinkler Company, Inc., 5 Star Landscape, Inc., Landscape Irrigation Spec., Valley Crest Land- scape, Inc., Interstate Landscape Corporation, V. C. Moffitt & Co., Doose Enterprises, Kawai Brothers, Robert E. Sapien, Inc., Omega Landscape Company, and A. F. Gaudenti Landscaping. Tom Moran testified that in September 1973, a representative of the Laborers threatened to shut his job down and picket the job if Moran did not use members of the Laborers to do the irrigation work. Joseph St. John testified that in April 1973, A. F. Gaudenti was threatened by Joe Alcosar, the vice president of the Laborers, that if he did not use laborers to lay pipe the Laborers would strike and shut down his job. On May 17, 1973, a representative of the Laborers informed David W. Wilson, vice president and branch manager of Valley Crest Landscape, Inc., that he wanted members of the Plumbers who were putting in the irrigation systems removed from the 5 There is no dispute concerning the landscape work. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job and the job stopped until such times as members of the Laborers were installing the irrigation system. On June 29, 1973, Eugene Miller, attorney for the Plumbers, telephoned Stewart H. Young, attorney for Acme Sprinklers, Inc., and threatened that the Plumbers would strike and picket at the present and future jobs of Acme if Acme reassigned the work of installing sprinkler systems from plumbers to labor- ers. The conversation was confirmed by Miller in a telegram. In addition, Miller told John D. Collins, Interstate's attorney, that if Interstate failed to assign the irrigation-type work to members of the Plumbers, the Plumbers would picket or close down Interstate on present and future jobs. Most of the Employers continued to use plumbers to perform the pipe installation work. Some Employ- ers did reassign the work to members of the Laborers but upon finding their work unsatisfactory reas- signed the work to members of the Plumbers. No evidence was presented that there had been any voluntary adjustment of the dispute. B. The Work in Dispute The work in dispute consists of the installation of irrigation systems in San Diego County, California. C. Contentions of the Parties The Employers and the Plumbers, as stated at the hearing, contend that assignment of the disputed work should be made to employees represented by the Plumbers. The Plumbers further contends that the Board's order assigning this work should be broad enough to cover not only the jobsites and Employers involved in this dispute but also cover the assignment of this work in any future job for any employer in the San Diego County area. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. In this case, it is undisputed that the Laborers threatened to picket and strike and/or remove its members from any of the Employers' present or future jobs in San Diego County with the object of requiring the Employer to assign the disputed work to its members. It also issued trust fund violation notices to some of the Employers, copies of which 6 N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System ], 364 U.S. 573(1961). were sent to the Employers' contractors, for having nonlaborers performing installation of the irrigation system, for the apparent object of requiring the Employers' contractors to put pressure on the Employers to assign the disputed work to its members. In addition, it also sent cancellation notices to 12 employers with which it had short-form agreements apparently because they did not reassign the disputed work to members of the Laborers. Moreover, the Plumbers, through its attorney, threatened Acme Sprinklers, Inc., and Interstate Landscape Corporation that it would strike and picket c_ close down their present or future jobs if they reassigned the disputed work from members of the Plumbers to members of the Laborers or failed to assign the work to members of the Plumbers. Accordingly, we are satisfied that there is reasonable cause to believe a violation of Section 8(b)(4)(D) did occur. We also conclude that there exists no effective method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Under these circumstances, we find that it will effectuate the policies of Section 10(k) and Section 8(b)(4)(D) of the Act for us to determine the merits of the dispute, and we therefore find that this dispute is properly before the Board. 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 factors s The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.7 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements Although all the Employers have contracts with both the Laborers and the Plumbers, the contracts were not introduced into evidence. Accordingly, we do not find that this factor tends to favor the positions of any of the parties. 2. Skills of the employees All the Employers stated that only the members of the Plumbers are qualified to perform the work of laying out the irrigation systems and installing the pipes. They further stated that if they had the choice 7 International Association of Machinists, Lodge No 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402. PLUMBERS, LOCAL 345 they would continue to use plumbers inasmuch as they feel the plumbers have demonstrated through past experience that they are highly qualified to perform this difficult work. The Employers who had used laborers stated that they were dissatisfied with the work done and had had to have it completed by members of the Plumbers. We therefore find that the skills factor favors the Employers' assignment. 3. Efficiency and economy Some Employers indicated that, where they had tried to have members of the Laborers perform the disputed work, the operation had turned out to be inefficient and more costly in terms of man-hours used as well as delays in completion of jobs. Moreover, some Employers testified that, under California statutes, whenever there is an apprentice program for some specific craft, any employer performing work for the State of California must utilize people from this training program. According- ly, since only the Plumbers has such an accredited apprentice program for the training of plumbers and fitters, these Employers testified that if the Board were to award the disputed work to the Laborers, they would lose the contracts they now have or might not.get future contracts to perform work for the State of California. In our opinion, the factors of efficiency and economy favor the Employers' assignment. 4. Company and area practice All the Employers testified that they have histori- cally used members of the Plumbers to perform the work in question and that under the prevailing area practice this work was assigned to Plumbers. Accord- ingly, we find that the practice of the Employers and the area favor the Employers' assignment. 5. National Joint Board awards Although the Board does not consider awards of the National Joint Board to be binding on the Board, we do consider it a factor in determining the proper assignment of work in dispute. The Plumbers introduced into evidence nine Joint Board decisions in which similar and identical work was awarded to plumbers and steamfitters on the basis of trade practice. Accordingly, we find that this factor tends to favor the position of the Employers and the Plumbers. See Riverside Sprinklers, Inc, 205 NLRB No 147. Indeed, Board records indicate that similar cases are pending in the same Region. 10 Local 294, International Brotherhood of Teamsters, Chauffeurs, Ware- Conclusion 25 Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employers' employees who are represented by the Plumbers are entitled to perform the work in dispute. This assignment is consistent with the Employers' initial assignment, the Employ- ers' past practice and area practice, the fact that plumbers employed by the Employers have the requisite high skills, the efficiency and economy of operation, and the National Joint Board awards. In making this determination, we are awarding the work in question to employees employed by the Employers who are represented by the Plumbers, but not to that Union or its members. As set forth above the Plumbers requests that the Board issue a broad order covering all employers in San Diego County, California. The present dispute has arisen in the past.8 Moreover, there is nothing in the record that would indicate a voluntary adjust- ment of the dispute within the foreseeable future.9 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.10 However, to issue an order involving other employers who have not been served or been given notice of this 10(k) proceeding and who have not had an opportunity to participate or give evidence is, in these circumstances in our view inadvisable. Accordingly, we shall give a broad order but limit it to the jobs in which the dispute arose and to all similar work done or to be done by the Employers in this proceeding on projects in San Diego County, California. 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: 1. Employees of the employers herein, who are currently represented by United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Cana- da, Local Union No. 345, are entitled to perform the work of installing irrigation systems at all present and future construction sites of the employers in this proceeding in San Diego County, California. 2. Laborers' International Union of North Amer- housemen and Helpers of America (Bethlehem Steel Corporation), 174 NLRB 30, 33; Local 1184, affiliated with laborers International Union of North America (Massey Sand and Rock Co.), 198 NLRB No. 16. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ica, Local No. 89, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Riverside Sprinklers, Inc., Valley Crest Landscape, Inc., 5 Star Landscape, Inc., Omega Landscape Company, Acme Sprinkler Com- pany, Inc., A. A. Attridge Sprinkler, Doose Enter- prises, A. F. Gaudenti Landscaping, Robert E. Sapien, Inc., V. C. Moffitt & Co., Interstate Land- scape Corporation, Kawai Brothers, Tom Moran Landscaping, Landscape Irrigation Spec., Independ- ent Irrigation Contractors Committee, to assign the disputed work to laborers represented by it on those employers' present and future projects in San Diego County, California. 3. Within 10 days from the date of this Decision and Determination of Dispute, Laborers' Interna- tional Union of North America, Local No. 89, AFL-CIO, shall notify the Regional Director for Region 21 , in writing, whether it will refrain from forcing or requiring the aforementioned Employers by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to laborers represented by it on these employers' present and future projects in San Diego County, California.