Laborers District Council of West Virginia

National Labor Relations Board - Board Decisions

Jun 30, 1998

325 N.L.R.B. 1058 (N.L.R.B. 1998)

1058
325 NLRB No. 197
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Notwithstanding this stipulation regarding the scope of the dis-
puted work, which remains in effect, the Plumbers have also taken
the position that employees represented by the Laborers have been
appropriately assigned aspects of the disputed work, such as the ex-
cavation work and the trenching work. The Plumbers continue to
seek what it describes as the piping work.
Laborers’ District Council of West Virginia and
Michel, Inc., Employer/Charging Party and
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL–
CIO, Local No. 152, Party-to-the Dispute. Case
6–CD–916
June 30, 1998
DECISION AND DETERMINATION OF
DISPUTE
BY GOULD AND MEMBERS FOX AND HURTGEN
The charge in this Section 10(k) proceeding was
filed July 22, 1997, by Michel, Inc. (the Employer), al-
leging that the Respondent, Laborers’ District Council
of West Virginia affiliated with Laborers’ International
Union of North America, AFL–CIO (Laborers) vio-
lated Section 8(b)(4)(D) of the National Labor Rela-
tions Act by engaging in proscribed activity with an
object of forcing the Employer to assign certain work
to employees it represents rather than to the employees
represented by the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL–CIO, Local
No. 152 (Plumbers). The hearing was held on August
13, 1997, before Hearing Officer Stephanie Brown.
Thereafter, the Employer, Laborers, and Plumbers filed
briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
Michel, Inc., is a West Virginia corporation doing
business as a general contractor engaged in heavy con-
struction with its place of business in Bridgeport, West
Virginia. During the 12 months preceding the hearing,
Michel had gross revenues in excess of $50,000, and
during the same period it purchased and received mate-
rials directly from enterprises located outside the State
of West Virginia in excess of $50,000. The parties
stipulate, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and that the Laborers and Plumbers are
labor organizations within the meaning of Section 2(5)
of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The current dispute involves the Employer’s contract
with the Sanitary Board of the City of Clarksburg,
West Virginia, to perform part of the city’s waste
water treatment plant’s major renovation and expan-
sion. The Employer began its work in January 1997
and that work is projected to be completed by May
1998.
At the Waste Water Treatment project, the Employer
has used approximately 80 of its own employees to
perform 99 percent of all the work. Thirty of the
eighty employees are laborers, and they are primarily
engaged in preparing the ditch beds, laying and install-
ing the pipes, and other related work.
On July 9, 1997, the Plumbers wrote a letter to the
Employer stating that it intended to file a grievance
against the Employer because the Employer had as-
signed the piping work on the project to Laborers in
violation of the Plumbers’ contract with the Employer.
Thereafter, on July 11, 1997, by letter, the Employer
informed the Laborers about the grievance filed by the
Plumbers and that in order to settle the grievance, it
was going to assign the piping work to plumbers. On
July 14, by letter and telephone, the Laborers re-
sponded by stating that the employees it represented
were entitled to perform the piping work under the
Heavy Agreement and that they would ‘‘take all rea-
sonable actions against your company, including pick-
eting and withholding of our services . . . unless the
work remained with the Laborers.’’ The Employer
continued its assignment of the work to its employees
represented by the Laborers.
B. Work in Dispute
The disputed work, as stipulated by the parties, in-
volves:
All piping and related work at the Clarksburg
Waste Water Treatment Plant including but not
limited to transporting, setting, installing and
trench backfilling of all ductile iron pipe and re-
lated piping but excluding domestic plumbing
consisting of potable water systems and drainage
systems within the Chlorination building cus-
tomarily constructed under building trades condi-
tions.1
C. Contentions of the Parties
The Employer and Laborers contend that a jurisdic-
tional dispute exists, relying on claims to the work
made by both Unions, and the Laborers’ threat to pick-
et and to withhold services. The Employer and the La-
borers claim the work in dispute is covered by their
current collective-bargaining agreement and that the
Employer is contractually obligated to assign the work
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1059LABORERS’ DISTRICT COUNCIL OF WEST VIRGINIA
2 Contrary to the Plumbers’ contention, we find the Board’s deci-
sion in Laborers (Capitol Drilling Supplies), 318 NLRB 809 (1995),
to be distinguishable. In Capitol Drilling, the Board held that a
union’s action through a grievance procedure to enforce an arguably
meritorious claim against a general contractor that work has been
subcontracted in breach of a lawful union signatory clause does not,
without more, constitute a claim to the subcontractor for the work.
The Board quashed the 10(k) hearing, noting that the union which
had filed the grievance had never engaged in any dispute with the
subcontractor. Here, there is no subcontractor involved and both the
Plumbers and the Laborers have made competing claims to the Em-
ployer for the work.
Member Hurtgen does not pass on the validity of Capitol Drilling.
3 Art. XXIX of this agreement, ‘‘Work Descriptions’’ describes the
many different types of work to be done by the Plumbers, including:
‘‘all piping in connection with central distributing filtration treatment
stations, boosting stations, waste and sewage disposal plants, central
Chlorination and chemical treatment work and all underground sup-
ply lines to cooling wells, suction basins, filter basins, setting basins
and aeration basins.’’
in dispute to employees represented by the Laborers.
The Employer and the Laborers assert that an award
in favor of employees represented by the Laborers is
justified by the Laborers’ collective-bargaining agree-
ment, employer preference and past practice, skills and
safety, area and industry practice and efficiency and
economy. The Employer further contends that the
wage certification incorporated into the bid documents
shows that the West Virginia Division of Labor cer-
tified the work to come within the Heavy Agreement
wage rate requirements. The Plumbers contend that be-
cause it has merely filed a grievance, there is no Sec-
tion 10(k) dispute and that the matter should be dis-
missed.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute under Section 10(k) of the Act, it must
be satisfied that: (1) there are competing claims for the
work; (2) there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated: and (3) that the par-
ties have not agreed on a method for the voluntary ad-
justment of the dispute.
Initially, we find that there are competing claims for
the work. The Laborers has at all times claimed the
work in dispute and, by letter dated July 14, 1997,
threatened to take economic action including picketing
against the Employer if the work was reassigned to
plumbers. The Plumbers has also made a claim for the
work in dispute by filing a grievance with wording that
seeks reassignment of part of the disputed work and by
stipulating on the record a claim to the work in dis-
pute.2
Finally, the Employer, Laborers, and Plumbers stipu-
lated at the hearing that there was no agreed-upon
method for voluntary adjustment of the work in dis-
pute.
In a 10(k) proceeding the Board is not charged with
finding that a violation did in fact occur, but only that
reasonable cause exists for finding a violation. Thus,
we find that the Laborers’ July 14 letter constitutes a
threat of economic action if the work in dispute were
reassigned to the Plumbers. Under the circumstances,
we find reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred. We also find that
there exists no agreed-upon method for voluntary ad-
justment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we find that the dispute
is properly before the Board for determination. There-
fore, we find no merit in the Plumbers’ argument that
this matter should be dismissed.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia 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 experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402, 1410–
1411 (1962).
The following factors are relevant in making the de-
termination of dispute.
1. Certification and collective-bargaining
agreements
There is no evidence that either Union has been cer-
tified to represent employees performing the disputed
work. Both Unions assert, however, that their collec-
tive-bargaining agreements entitle them to the disputed
work.
The Employer and Laborers are parties to the 1997–
1999 West Virginia Highway/Heavy Agreement be-
tween the Highway/Heavy Contractors Association Di-
vision of the West Virginia Construction Council and
its Affiliated Associations, and five other labor organi-
zations. This agreement covers construction, modifica-
tion, additions, repairs, and/or improvements to, inter
alia, sewage disposal and water treatment plants. The
work classifications for laborers include, inter alia,
pipe layer (including laser beam set up) and pipe layer
helper.
The Employer and the Plumbers are also parties to
a collective-bargaining agreement effective from 1996
to 1999. This agreement describes their work jurisdic-
tion as covering, inter alia, the installation of piping
and all piping materials by any method and all other
work included in the trade Jurisdiction Claims of the
Plumbers and Steamfitters.3 However, it does not make
a specific reference to the laying of heavy ductile pipe
and the related work of trenching, backfilling, and
compacting. Nevertheless, the record reflects that em-
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1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees represented by both Unions have performed
various aspects of the work in dispute in varying de-
grees under their union contracts. Based on the evi-
dence presented, we find that this factor does not favor
awarding the work in dispute to either group of em-
ployees.
2. Employer preference and past practice
The Employer began performing the type of work in
dispute in 1995 when it was awarded a similar contract
from the city of Bridgeport, which is only a few miles
from Clarksburg. The Employer used employees rep-
resented by the Laborers for that contract and has con-
tinued to use laborers to perform all piping work on
its projects. The Employer’s president and CEO,
Thomas H. Michel, testified that the Employer prefers
to use Laborer-represented employees because they are
better trained and qualified to perform all the related
work involved in completing the project rather than
just simply connecting the pipes. The Employer also
notes that it considered the practices of its competitors
who have used laborers for many years to perform the
same work. Accordingly, we find that this factor favors
an award of the work in dispute to employees rep-
resented by the Laborers.
3. Relative skills and safety
The record shows that the laborers have historically
performed excavation work and that, because much of
the Employer’s work involves working subsurface,
they perform this type of work for the Employer on a
daily basis. The Employer noted that the laborers have
been specifically trained for this type of work and that
the laborers utilize the OSHA safety standards for the
identification of soil conditions and other hazards nec-
essary for the safe excavation, trenching, and laying of
heavy ductile pipe. The Employer’s testimony also
noted the laborers’ excellent safety record in the use
of power and manual handtools, all compaction equip-
ment including vibratory rollers, concrete vibrators,
chop saws, cutting torches, and laser leveling equip-
ment. The Plumbers offered a single witness who testi-
fied briefly about safety training, but it did not offer
detailed evidence comparable to that adduced by the
Laborers and its submission to the Board contains no
claims concerning safety records or training.
Accordingly, we find that on this record, this factor
favors an award of the work in dispute to employees
represented by the Laborers.
4. Area practice
The record shows that the Employer-members of the
Highway/Heavy Contractors Association Division of
the West Virginia Construction Council regularly use
Laborers-represented employees to perform their heavy
duty piping work. The record also shows a concession
by the Plumbers that the Laborer represented employ-
ees have been utilized for the pipelaying/fitting work
in dispute at other water treatment plants in West Vir-
ginia with more frequency than the Plumbers. Accord-
ingly, we find that this factor favors an award of the
work in dispute to employees represented by the La-
borers.
5. Economy and efficiency of operations
As noted above, laborers have performed not only
the pipelaying work but all of the other related work
that includes digging, grading, compacting, lagging,
shoring, and backfilling. Michel testified that because
the Laborers-represented employees can perform all of
the work in dispute there is no downtime which would
occur if the Employer were required to use Plumbers-
represented employees for intermittently required work.
According to Michel, the plumbers are qualified to
perform only one aspect of the work and they would
spend 95 percent of their worktime watching laborers
perform all of the other related work. Further, the Em-
ployer contends that the Laborers’ contract also allows
the Employer to maintain a core group of Laborers-
represented employees, thereby maximizing its effi-
ciency, productivity, and safety from job to job. Fi-
nally the Employer states that, unlike plumbers, labor-
ers are not adverse to working in inclement weather
conditions, which is often necessary. Based on the evi-
dence presented, we find the factor of economy and ef-
ficiency favors an award of the work in dispute to em-
ployees represented by the Laborers.
Conclusion
After considering all the relevant factors, we con-
clude that employees represented by Laborers District
Council of West Virginia are entitled to perform the
work in dispute. We reach this conclusion relying on
the factors of Employer preference and past practice,
relative skills and safety, area practice, and economy
and efficiency of operations.
In making this determination, we are awarding the
work to employees represented by the Laborers Dis-
trict Council of West Virginia, not to that Union or its
members. The determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Michel, Inc. represented by Laborers
District Council of West Virginia are entitled to per-
form all piping and related work at the Clarksburg
Waste Water Treatment Plant in Clarksburg, West Vir-
ginia.
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