Plumbers Local 123 (Florida Maintenance & Construction)

PLUMBERS LOCAL 123 (FLORIDA MAINTENANCE & CONSTRUCTION) 429 United Association of Journeymen and Apprentices of the Plumbing, Pipefitting, Air Conditioning, and Refrigeration Industry of the United States and Canada, Local Union 123 and Florida Mainte- nance and Construction, Inc. Case 12–CD–322 October 11, 2002 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS LIEBMAN, COWEN, AND BARTLETT This is a work jurisdiction dispute proceeding under Section 10(k) of the Act. The charge was filed on De- cember 20, 2001, by Florida Maintenance and Construc- tion (FMC or the Employer), and alleges that the Re- spondent, United Association of Journeyman and Ap- prentices of the Plumbing, Pipefitting, Air Conditioning, and Refrigeration Industry of the United States and Can- ada, Local Union 123 (Pipefitters), violated Section 8(b)(4)(D) of the National Labor Relations Act by engag- ing in proscribed activity with an object of forcing the Employer to assign certain work to employees it repre- sents rather than to employees represented by Interna- tional Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local No. 397, AFL–CIO (Ironworkers), and Millwrights and Machinery Erectors Local Union 1000, United Brotherhood of Carpenters and Joiners of America (Millwrights). The hearing was held on February 19, 2002, before Hearing Officer Chris Zerby. The National Labor Relations Board affirms the hear- ing officer’s rulings, finding them free from prejudicial error. On the entire record, the Board makes the following findings. I. JURISDICTION The Employer, a Florida corporation, is engaged in the construction business. The parties stipulated that within the 12 months preceding the hearing, which is a repre- sentative period, the Employer purchased and received goods valued in excess of $50,000 from points located outside the State of Florida. We accordingly find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We further find, based upon the stipulation of the parties, that the Pipefitters, the Ironworkers, and the Millwrights are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is involved in the maintenance and re- pair of equipment used in phosphate and chemical plants. The Employer uses a core crew of 24 employees, most of whom are members of the Ironworkers and Millwrights unions. It employs additional employees, referred by these unions, when needed. In about May 2001, the Employer executed a contract to perform miscellaneous steel repair and other duties on the Payne Creek Power Plant project (Payne Creek). Some of the Employer’s work on the Payne Creek pro- ject included removing and replacing sections of piping, repairing leaks, relocating pipe supports, and working on pipe hangers. The Employer assigned this work to its crews consisting of employees represented by the Mill- wrights, Ironworkers, or both. The Employer has collec- tive-bargaining agreements with the Ironworkers and the Millwrights. The Employer estimates that around 20 percent of the work it performed at the Payne Creek site work, as well as at its other sites, was work that traditionally would be claimed by the Pipefitters. The Employer does not have a collective-bargaining agreement with the Pipefitters, nor is there record evidence that it has ever employed Pipefit- ters-represented employees. In the summer of 2001, Stan McIntosh, assistant busi- ness manager for the Pipefitters, learned that the Em- ployer was performing piping work at the Payne Creek site. McIntosh contacted Edward Dees, president of the Building Trades Council and business agent for the Ironworkers, to arrange a meeting with Employer’s president, Michael G. Feduccia. McIntosh told Dees that he wanted the Employer to sign a collective-bargaining agreement with the Pipefitters. McIntosh, Dees, and Feduccia met at a restaurant. McIntosh told Feduccia that employees represented by the Pipefitters should be performing all of the Em- ployer’s piping work. McIntosh gave Feduccia a Pipefit- ters contract to examine and asked Feduccia to sign it. McIntosh and Feduccia discussed whether the Employer intended to increase piping work and, if so, McIntosh stated that the Employer would need to hire a superin- tendent. McIntosh volunteered to send employees to the Employer to apply for the superintendent position. Later, McIntosh called Feduccia to find out why none of six referred superintendent applicants had been hired. According to McIntosh, Feduccia stated that the Em- ployer would not consider signing a Pipefitter contract until January 2002. McIntosh responded that he had learned that the Employer was performing more piping work and that he was going to picket wherever the Em- ployer had ongoing jobs. Around September 17, 2001, the Pipefitters began picketing the Employer at Payne Creek. The picketing lasted for 2 to 3 weeks. McIntosh testified that the pur- pose of the picketing was to get the Employer to sign a 338 NLRB No. 41 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 430 contract with the Pipefitters. In early November 2001, the Pipefitters purportedly disclaimed the work.1 In mid-December 2001, McIntosh went to Payne Creek with Pipefitters member, Cliff Mays, and Assistant Business Manager Mike Comber. According to McIntosh, the parties went to the site to investigate a grievance that had been filed against another subcontrac- tor. Comber testified that he only went along for the ride. While at Payne Creek, Comber testified that he ob- served an employee wearing a welding mask while work- ing on a pipe hanger. Comber approached the employee and asked him if he was an Ironworker. The employee responded that he was. Comber informed the employee that he was performing work that belonged to the Pipefit- ters. Comber further stated that Pipefitters do not take work from Ironworkers. Comber then went to the car to obtain a camera. Comber testified that he went to get a camera so that he could take a picture of the Ironworker who was per- forming pipefitting work. Michael D. Feduccia, an Ironworker member (and the Employer president’s son) approached Comber. According to Comber, Feduccia told him that cameras were not allowed on the job. Comber held out his hand and said he had a camera. Comber then told Feduccia that if he wanted a war they would give it to him. According to Comber, he meant that the Pipefitters would file a grievance under article 20 of the AFL–CIO constitution.2 According to Feduccia, (who testified that he was wearing a hardhat labeled with the Employer’s name, and standing near a generator stenciled FMC), he informed Comber that cameras were not allowed on the job. Comber responded by saying, “Come on you punk, take the camera. I’m tired of this shit. You guys are doing our work and Ed Dees is a f—ing liar.” Comber then told Feduccia that “f [the Ironworkers] wanted a f—ing war,” he would bring them a war. After Feduccia told him to bring it on, Comber stepped closer and stated he would break Feduccia’s jaw. B. Work in Dispute As described in the notice of hearing, the work in dis- pute concerns the assignment of the following work tasks: The installation of a testing system for piping process involved in the eventual operation of the new power generating facility under construction at the Payne Creek Power Plant, including installing metal, plastic 1 An earlier 8(b)(4)(D) charge was dismissed at this point. 2 Comber states he did not know Feduccia was employed by the Employer and that he did not lose his temper or make physical threats. and copper pipes up to 300’ in length, through which water, oils and compressed air will travel; and The installation as part of an ongoing system at Cargill Fertilizer, of replacement pipes and processed piping running from the pumps to various vessels or tanks, in- cluding welding metal pipe up to 24” in diameter and up to 300’ in length. C. Contentions of the Parties The Pipefitters Union argues that the notice of a 10(k) hearing should be quashed because there are no compet- ing claims for the disputed work. Rather, the Pipefitters asserts that it filed two disclaimers to the disputed work, the first after the picketing in September and, again, dur- ing the instant 10(k) hearing.3 The Pipefitters also argues that neither the Millwrights nor Ironworkers has claimed the work, but merely complied with the Employer’s re- quests to provide it with employees under the terms of its respective collective-bargaining agreement. The Pipefitters Union further contends that there is no reasonable cause to believe that it violated Section 8(b)(4)(D). It contends that Comber’s alleged threats were not directed at the Employer. Specifically, it con- tends that Comber’s statement “if you want a war, we’ll give you a war” is too ambiguous to constitute a threat. Further, it argues that Combers explained that the “war” he had in mind was an article XX proceeding against the Ironworkers. Finally, the Pipefitters argues that, in the event that the Board determines that a work jurisdiction dispute is properly before it, the Board should limit the scope of its order to the Payne Creek project. It argues that the al- leged threat was isolated, there is no evidence that such an unusual incident would likely recur, and that its al- leged actions were not in defiance of a Board order. The Employer contends that there is reasonable cause to believe that the Pipefitters violated Section 8(b)(4)(D) of the Act. It argues that the Pipefitters have engaged in both picketing and threats with the object of forcing it to alter its job assignment patterns and award the disputed work to Pipefitters-represented employees. Specifically, the Employer contends that Pipefitters Business Agent McIntosh requested that the Employer sign a collective-bargaining agreement with the Pipefit- ters. When the Employer declined to sign the contract, McIntosh threatened to picket, and the Pipefitters 3 The record contains no evidence as to the latter purported dis- claimer. Although the record contains a purported disclaimer that the Pipefitters would engage in prohibited conduct regarding the work in dispute, the Pipefitters did not thereby disclaim interest in that work. PLUMBERS LOCAL 123 (FLORIDA MAINTENANCE & CONSTRUCTION) 431 thereafter picketed the Employer at two jobsites and its central office in the fall 2001. Following the filing of the earlier unfair labor practices charges, the Pipefitters purportedly disclaimed interest in any work of the Employer. The Employer argues, how- ever, that there is reasonable cause to believe that the disclaimer was hollow, as demonstrated by the subse- quent visit by McIntosh and Comber to the Payne Creek site to check on the status of the Employer’s work as- signments and to reaffirm the Pipefitters’ claim to the work in dispute. Finally, the Employer contends that when Comber was told by Michael D. Feduccia, an Ironworkers member (and employer president’s son), that cameras were not allowed on the site, Comber became enraged and told Feduccia that he would bring on a f—ing war. Thus, the Employer argues that the Pipefitters’ picketing and sub- sequent threat to require the Employer to enter into a collective-bargaining agreement constituted reasonable cause to believe that Section 8(b)(4)(D) had been vio- lated. On the merits of the jurisdictional dispute, the Em- ployer contends that the disputed work should be awarded to its current employees, represented by the Ironworkers and Millwrights, on the basis of employer preference, historical practice, and economy and effi- ciency of operation. On this last point, the Employer argues that its efficiency would be undercut if it was re- quired to dismantle its core composite crew—which per- forms work across craft lines—and replace it with inter- mittent work by Pipefitters-represented employees. The Employer further argues that because the parties’ dispute is likely to recur, it is appropriate for the Board to issue a broad award in this proceeding. Although the Ironworkers and Millwrights did not file posthearing briefs, they took the position at the 10(k) hearing that each union has a collective-bargaining agreement with the Employer and that each will perform the work that is assigned it by the Employer. D. Applicability of the Statute It is well settled that the issue in a 10(k) proceeding is whether there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. It requires a finding that there are competing claims to the disputed work between rival groups of employees, reasonable cause to believe that a party has used proscribed means to enforce its claim to the work in dispute, and that no method for the voluntary adjustment of the dispute has been agreed on.4 We find that these jurisdictional pre- requisites have been met. Regarding competing claims, employees represented by the Ironworkers and Millwrights are performing the current work. Performance of the work constitutes their claim for it. See generally Operating Engineers Local 926 (Georgia World Congress Center), 254 NLRB 994, 996 (1981). Further, the Ironworkers and Millwrights have indicated that they will continue to refer employees they represent to the Employer to perform work assigned by the Employer. As to the Pipefitters, it claimed interest in the disputed work in September 2001 by informing the Employer that employees it represents should perform all of its piping work. While the Pipefitters purportedly disclaimed in- terest in the work in November, in December Assistant Business Manager Comber renewed the Pipefitters’ claim to the work by telling the Employer’s Ironworker employee that he was doing Pipefitters work and that the Ironworkers “were taking their f—ing work and that he would bring a f—ing war.” Accordingly, we find that there are competing claims for work in dispute. Regarding whether there is reasonable cause to believe that there was 8(b)(4)(D) conduct, there is evidence— through the testimony of Feduccia—that Pipefitters busi- ness representative Comber threatened to engage in pro- scribed activity within the meaning of Section 8(b)(4)(D) in an effort to require the Employer to reassign the dis- puted work to Pipefitters-represented employees.5 Al- though there is conflicting evidence, disputing Feduc- cia’s account, the Board is not required in a 10(k) pro- ceeding to resolve conflicting testimony or find that Sec- tion 8(b)(4)(D) has, in fact, been violated. It need only find reasonable cause. See, e.g., Electrical Workers (Comm-Tract Corp.), 289 NLRB 281, 282 (1988); La- borers Local 334 (Dynamic Construction Co.), 236 NLRB 1131, 1132 (1978). Here we find that this stan- dard has been met. Finally, as stipulated to by the parties, no method for the voluntary adjustment of the dispute has been agreed on. We thus find reasonable cause to believe Section 8(b)(4)(D) of the Act has been violated, and that the dis- pute is properly before the Board to determination. We accordingly deny the Pipefitters’ request to quash the notice of hearing. 4 E.g., Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422, 423 (2001). 5 See, e.g., Information Systems, 326 NLRB 1382, 1383 (1998), where the Board found that the statement, “I’m going to throw them off the fourth floor balcony above the atrium” constituted a threat of pro- hibited activity. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 432 E. Merits of the Dispute Section 10(k) requires the Board to make an affirma- tive award of disputed work after considering various factors. NLRB v. Electrical Workers Local 1212 (Co- lumbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and ex- perience, reached by balancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402, 1410–1411 (1962). The following factors are relevant in deciding this dis- pute. 1. Certification and collective-bargaining agreements As stipulated by the parties, there is no order or certifi- cation of the Board determining the bargaining represen- tative of the employees performing the disputed work. Accordingly, this factor does not militate either way. As set forth above, the Employer is party to separate collective-bargaining agreements with the Ironworkers and Millwrights. The agreements permit the use of com- posite crews. The Employer testified that these agree- ments cover the work in dispute, and there is no record evidence disputing this claim. The Pipefitters Union, conversely, does not have a contract with the Employer. Accordingly, we find that this factor favors awarding the work in dispute to the employees represented by the Ironworkers and Millwrights. 2. Employer assignment and preference The Employer currently assigns the disputed work to its core employees represented by the Ironworkers and Millwrights, and prefers that the work in dispute con- tinue to be performed by them. This factor accordingly favors awarding the work in dispute to employees repre- sented by the Ironworkers and Millwrights. 3. Past practice The Employer’s historic practice is to use a composite crew of Millwright and Ironworker represented employ- ees to perform similar work on other projects. This fac- tor factors awarding the disputed work to employees rep- resented by the Millwrights and Ironworkers. 4. Area and industry practice The record evidence is insufficient as to the area and industry practice of assigning work similar to that here in dispute. Accordingly, we find that these factors do not favor an award to any of the groups of employees. 5. Relative skill The record shows that employees represented by the Ironworkers, Millwrights, and Pipefitters have the requi- site skills and training to perform the work in dispute. This factor, therefore, does not favor an award to any group of employees. 6. Economy and efficiency of operations The Employer uses a core crew of 24 employees con- sisting primarily of Millwright and Ironworker- represented employees. It contends that it took 2-1/2 to 3 ears to develop this core group of employees. The Em- ployer argues that it would be inefficient and uneconom- ical if it were required to assign the work in dispute to Pipefitters-represented employees because: it might have to put the current employees on stand-by status or pay them for standing around; and it would risk losing some of its core group of employees. The Employer further contends that, as a small employer, it cannot afford juris- dictional segregation of each work assignment along traditional craft lines. It asserts that it would be ineffi- cient to dismantle the current composite crew and replace it with intermittent work by Pipefitters-represented em- ployees. We find that this factor favors awarding the disputed work to employees represented by the Ironworkers and Millwrights. Conclusions After considering all of the relevant factors, we con- clude that employees represented by the Ironworkers and Millwrights are entitled to perform the work in dispute. We reach this conclusion based on the factors of collec- tive bargaining agreements, employer preference and current assignment, past practice, and economy and effi- ciency of operations. In making this determination, we are awarding the disputed work to employees represented by International Association of Bridge, Structural, Or- namental and Reinforcing Ironworkers, Local No. 397, AFL–CIO (Ironworkers) and Millwrights and Machinery Erectors Local Union 1000, United Brotherhood of Car- penters and Joiners of America (Millwrights), not to those unions or its members. Scope of Award The Employer has requested that the Board issue a broad award assigning the disputed work to employees represented by the Ironworkers and Millwrights. Nor- mally, 10(k) awards are limited to the jobsite where the unlawful 8(b)(4)(D) conduct occurred or was threatened. Electrical Workers Local 363 (U.S. Information Sys- tems), 326 NLRB 1382, 1385 (1998). There are two prerequisites for a broader award: (1) evidence that the disputed work has been a continuous source of contro- versy in the relevant geographic area and that similar disputes may recur; and (2) evidence demonstrating the offending union’s proclivity to engage in further unlaw- ful conduct in order to obtain work similar to that in dis- PLUMBERS LOCAL 123 (FLORIDA MAINTENANCE & CONSTRUCTION) 433 pute. See Laborers District Council (Paschen Contrac- tors), 270 NLRB 327, 330 (1984), and Electrical Work- ers Local 104 (Standard Sign & Signal Co.), 248 NLRB 1144, 1147–1148 (1980). Here, the dispute at the Payne Creek site is the first substantiated controversy arising over the disputed work. And while a previous 8(b)(4)(D) charge was filed against the Pipefitters as to this same site, that charge was dismissed. Finally, the record does not establish that the Pipefitters Union is likely to engage in unlawful conduct at future job sites in pursuit of work similar to that here in dispute. Accordingly, the award is limited to the controversy at the jobsite that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute. 1. Employees of Florida Maintenance & Construction, Inc. who are represented by International Association of Bridge, Structural, Ornamental and Reinforcing Iron- workers, Local No. 397, AFL–CIO, and Millwrights and Machinery Erectors Local Union 1000, United Brother- hood of Carpenters and Joiners of America are entitled to perform the following work The installation of a testing system for piping process involved in the eventual operation of the new power generating facility under construction at the Payne Creek Power Plant, including installing metal, plastic and copper pipes up to 300’ in length, through which water, oils and compressed air will travel; and The installation as part of an ongoing system at Cargill Fertilizer, of replacement pipes and proc- essed piping running from the pumps to various ves- sels or tanks, including welding metal pipe up to 24” in diameter and up to 300’ in length. 2. The United Association of Journeyman and Ap- prentices of the Plumbing, Pipefitting, Air Conditioning, and Refrigeration Industry of the United States and Can- ada, Local Union 123, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force Florida Maintenance and Construction, Inc., to assign the dis- puted work to employees represented by it. 3. Within 14 days from this date, the United Associa- tion of Journeyman and Apprentices of the Plumbing, Pipefitting, Air Conditioning, and Refrigeration Industry of the United States and Canada, Local Union 123, shall notify the Regional Director for Region 12, in writing, whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this deter- mination.