Plumbers, Local 345

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 345 and A-Associate Industries Corporation of Montebello and Southern California District Council of Laborers and its Affiliated Local Unions. Case 21 CD-469 December 8, 1980 [)ECISION AND DETERMINATION OF DISPUTE HNL CIHAIRM, N FANNING ANI) MEMBEHRS JI NKINS AND) PFNIN l.O This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by A-Associate Industries Corpo- ration of Montebello, herein called the Employer, alleging that United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 345, herein called Plumbers, had violated Section 8(b)(4)(D) of the Act by engaging in cer- tain proscribed activity with the object of forcing or requiring the Employer to assign certain work to its members rather than to employees represent- ed by Southern California District Council of La- borers and its affiliated Local Unions, herein called Laborers. Pursuant to notice, a hearing was held before lcaring Officer Lucke on August 6, 1980. All par- tics appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Pursuant to the provisions of Section 3(b) of the National l.abor 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 af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: I. I Hl BUSINESS O() I HY MPI OYFR The record shows, and we find, that the Em- ployer, a California corporation with its principal place of business in Montebello, California, is en- gaged in business as a subcontractor in the building and construction industry, performing landscape, irrigation, and installation work. At jobsites known as Oltman I and 2 in Santa Fe Springs, California, Oltman Construction Company contracted with Associate Industries Inc. for lawn sprinkler, land- 253 NLRB No. 81 scape, and irrigation work and the value of such contracts exceeded $100,0(X)0. Associate Industries, Inc., let subcontracts valued in excess of $30,000 to the Employer for a portion of the Oltman I and 2 work. At all times material herein, Oltman Construc- tion Company, a corporation with its principal of- fices located in Monterey Park, California, has been a member of the Building Industry Associ- ation of California, Inc., a multiemployer trade as- sociation which engages in multiemployer collec- tive-bargaining negotiations. During the past 12 months, employer members of the Association, either collectively or individually, purchased and received goods, materials, and supplies valued in excess of 50,(XX) from suppliers located within the State of California, which materials and supplies were received directly from outside the Stale of California by those suppliers. At the Oltman I and 2 jobsites, Oltman and its subcontractors purchased and received goods valued in excess of $50,(X)0 directly from suppliers located inside the State of California. These suppli- ers received such goods directly from firms located outside the State of California which supplies were for installation and use at the jobsites. We find, in accordance with the foregoing, that Oltman Construction Company is an employer en- gaged i commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purpose of the Act to assert jurisdiction herein. II. I tHi I A13(OR OR(;ANIZ/AF lION INVOI VII) The parties stipulated, and we find, that Plumb- ers and Laborers are labor organizations within the meaning of Section 2(5) of the Act. Ill. THE I)ISPUT:. A. Background and Facts oj Dispute The Employer is a subcontractor performing landscape, irrigation, and sprinkler system installa- tion in southern California. Since 1976, it has been signatory to a collective-bargaining agreement with Laborers and has used only laborers to perform its landscape and irrigation work. Laborers and UA District Council No. 16 (which includes Plumbers) have had a work juris- diction agreement since 1974. This agreement grants employees who are represented by Plumbers the right to perform the work in dispute. However, I Inerrnalrtou/ aBrwhrhood oJ Pn/nirer and 41/d I rad. Dry 4WU/ I'm !- ishcr, L.oa l ,V, 1955 (Br I ( tro ruton (a ), 192 NLRIJ 41 (1971 ); .Sh,,l Stul lntrnatmnal A,a4o ann. .,ul 28 11,. (10 (Nu-tFhhcrgl&s t)ut ( orporatton, 159 NL RIt 142 1425 (1966). Pl.UM[IFRS, LOCAI 345 the evidence fails to show adherence by the Labor- ers to the agreement, and that on at least two occa- sions in 1977 Plumbers demanded, and the Employ- er refused, assignment of irrigation work which la- borers were performing. In 1980, Oltman Construction Company subcon- tracted landscape and irrigation work at two job- sites in Santa Fe Springs, California, known as Oltman I and 2, to Associate Industries. At Oltman 1, Associate Industries subcontracted the landscape work to the Employer and the irrigation work to Hydrodig, a subcontractor signatory to an agree- ment with Plumbers. At a May 20 meeting held be- tween representatives of Oltman, Associate, Labor- ers, and Plumbers, concerning problems at the Oltman 1 jobsite, a question arose as to who 'would perform the irrigation work at the Oltman 2 job- site. Plumbers Representative ()rr suggested that either Associate Industries or the Employer sign a labor agreement with Plumbers or that the future "plumbers work" be subcontracted to Hydrodig. Additionally, Orr stated that he wanted his "mem- bers on the pipe" at the Oltman 2 site. Associate subcontracted the landscape and irriga- tion work at Oltman 2 to the Employer. ()n June 10, 1980, two laborers began the work for the Em- ployer. 2 Starting on June 11 and continuing through June 16, plumbers picketed the jobsite car- rying signs displayinig a recognitional object. B. le Wobrk in Dispute The work in dispute involves the handling, laying, and installation of lawn sprinkler and irriga- tion pipe as well as the installation of valves and valve boxes connected therewith at commercial and residential jobsites located in the nine southern California counties in which Plumbers and Labor- ers have concurrent jurisdiction. C. he Contentions of the Parties The Employer contends that a jurisdictional dis- pute exists; that Plumbers violated Section 8(b)(4)(D) by demanding, then picketing the Em- ployer's jobsite to force assignment of work to em- ployees who are represented by Plumbers; and that the Laborers collective-bargaining agreement with the Employer, and the Employer's preference, past practice, efficiency, and economy dictate that the work in dispute should continue to be assigned to employees who are represented by Laborers. Laborers makes no contentions but attempted at the 10(k) hearing to disclaim the work at this par- ticular jobsite. 2 Alhough a n mtmber of ahorer, I)ennris Napolin a lo A. i a memher of Ilumbhers, and he record indlcatl, Ithat h wal hired fir thi, particular joh basd on his IL.ablrcrs mcmhberhip Plumbers alleges that no work dispute exists be- cause Laborers disclaimed the work; that the pick- eting was for a lawful recognitional objective and not in furtherance of an unlawful object banned by Section X(b)(4)(D); and that, even if a work dispute exists, the work jurisdiction agreement between Plumbers and Laborers requires the assignment of the work to employees who are represented by Plumbers. 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 there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. Plumbers contends that no work dispute exists because Laborers disclaimed the work. However, the record shows that the disclaimer was ineffec- tive because: (I) Laborers limited its disclaimer to the specific job in the instant proceeding, this is contrary to the nine-county area scope of the work in dispute. (2) The disclaimer is predicated on the argument that the work has not been performed by laborers since 1974 because the Unions' work juris- dictional agreement covers the disputed work and, uncler that agreement, the irrigation and sprinkler system installation work involved herein has been awarded to plunibers. Although the agreement sup- ports Plunibers argument, the evidence establishes that laborers has not observed the agreement, and that since 1977 the Employer has consistently used laborers to perform its irrigation work. In addition, on at least two occasions in 1977 and again in the instant proceeding Plumbers unsuccessfully de- manded that the Employer assign the work to its members. Further, the two employees performing the disputed work herein were hired because of their membership in Laborers. In none of the above instances did Laborers object to its members' performance of work notwithstanding the theory of assignment to Plumbers under the work jurisdic- tion agreement. (3) The work in dispute is covered by article 8, section 7, of Laborers collective-bar- gaining agreement with the Employer.' The evidence also discloses reasonable cause to believe "an object" of the picketing by members of Plumbers was to force the Employer to assign the disputed work to employees who are represented : Art 8, sc 7. reads i pertinent part "All I a rers s' w rk iii CioIlrne iton lO ir the iontrriL ron of irrigaitiion atler lines lincluding tihl cribihhiing lagginig brahr ig. sheteilig checking grade for pipe laying. Irenich lickilng aid handling o handgided lagging Ihaiirer, on all pen Irenell-. l ; 1d ditt'he, 614 I)ECISIONS OF NATI()NAL. LABOR RELATIONS BOARD by Plumbers. As indicated, supra, in 1977 Plumbers twice demanded assignment of the work which la- borers were performing and also threatened to picket the Employer if it did not enter into a bar- gaining agreement with Plumbers. In addition, Plumbers Representative Orr stated at the May 20, 1980, meeting that "I want my members on the pipe." Members of Plumbers began picketing the jobsite 2 weeks later. Plumbers contends that the picketing's object was not for work assignment, but rather that it wanted a prehire agreement with the Employer. However, the record contains Orr's admission that, if the picketing resulted in a Plumbers bargaining agreement with any of the employers involved herein, it would require that employer to use plumbers to perform the disputed work. We find, therefore, that an object of Plumbers' picketing was to require the Employer to assign the work to employees who are represented by Plumbers rather than to employees who are represented by Labor- ers. Laborers' Local 676 (Clyde Stewart Excavating Co.), 229 NLRB 664, 665 (1977); cf. Sheet Metal Workers International Association., Local 99, AFL et al (Albers Milling Company), 90 NLRB 1015, 1019 (1950). On the basis of the entire record, we conclude that there is reasonable cause to believe that a vio- lation of Section 8(b)(4)(D) has occurred and, as the parties stipulated, that no agreed-upon method for the voluntary adjustment of the dispute exists within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board for determination. 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.4 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.- The following factors are relevant in making the determination of the dispute before us: I. Collective-bargaining agreement As noted above, the Employer is currently signa- tory to a collective-bargaining agreement with La- borers which specifically covers the work in dis- pute. Plumbers, though frequently seeking recogni- tion from the Employer, has no such agreement. 4 N. t Bi N Radio & lhvimion roadca t Erigint, rs Union,. L.x-a/ 1212. I, / rnairoral irotherhood J' I:lorictal Worker. .4117.-(()/0 [( lum- hia raadcatlng Sytrnl]. 364 I S 573 (1961h) ' Interlaitleal .1s4iwatnw o Muctiis, 1.odge No. 1743, .-l-. ( (0 U A. on,s (Contrutto!n (Compan., 135 N[.RB 1402 (1962) This factor favors awarding the work to employees who are represented by Laborers. 2. Employer and area practice Since 1977, the Employer has continuously and exclusively used employees who are represented by Laborers to perform the work in dispute, and this factor weighs in favor of awarding the work to employees who are represented by Laborers. See Laborers' International Union of North America, Local 300, AFL-CIO (Howard Olson Landscaping, Inc.), 195 NLRB 247, 248 (1972). The evidence regarding area practice is inconclu- sive and does not favor awarding the work in dis- pute to one group of employees rather than to the other. 3. Skills, economy, and efficiency of operation The record indicates that both laborers and plumbers can perform the irrigation work with equal skill. Therefore, this factor does not weigh in favor of either group of employees. Performance of both the irrigation and landscape work by laborers, however, enables the Employer to have a continu- ous and more efficient operation, in that the lands- caping involves rototilling and planting shrubs and trees around the irrigation system, and when the employee who installed the irrigation system also landscapes that area, his knowledge of the system's depth and placement ensures its protection. 4. Union work jurisdiction agreement Laborers and Plumbers are parties to a work ju- risdiction agreement which covers and awards to employees who are represented by Plumbers the work in dispute. The Employer is not a party to this agreement and, thus, is not bound by it. While normally that agreement would favor awarding the work to employees who are represented by Plumb- ers, the record shows that Laborers has not ob- served the agreement, which makes its viability questionable. Therefore, this factor is not a control- ling one. 5. Employer preference The Employer's president testified that because of efficiency and economy it preferred its employ- ees who are represented by Laborers to perform the disputed work. This factor weighs in favor of awarding the work to employees who are repre- sented by Laborers. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- 620 PI.lUM ERS, O()CAL 345 clude that employees who are represented by La- borers are entitled to perform the work in dispute. We reach this conclusion relying on the collective- bargaining agreement, efficiency, economy, and the Employer's past practice and preference. In making this determination, we are awarding the work in question to employees who are represented by La- borers, but not to that Union or its members. The present determination covers the disputed work in the nine southern California counties in which Plumbers and Laborers have concurrent jurisdic- tion. 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 makes the following Determination of Dispute: 1. Employees of A-Associate Industries Corpora- tion of Montebello, who are represented by South- ern California District Council of Laborers are en- titled to perform irrigation and lawn sprinkler in- stallation at commercial and residential jobsites lo- cated in the nine southern California counties in which Plumbers and Laborers have concurrent ju- risdiction, including the jobsite known as Oltman 2 in Santa Fe Springs, California. 2. United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Indus- try of the United States and Canada, Local Union 345, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require A-Asso- ciate Industries Corporation of Montebello to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 345, shall notify the Regional Director for Region 21, in writing, whether or not it will refrain from forcing or requiring the Em- ployer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 621