Plumbers and Gasfitters Local 36

National Labor Relations Board - Board DecisionsAug 6, 1975

219 N.L.R.B. 1016 (N.L.R.B. 1975)

1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers and Gasfitters Local Union No. 36, United Association of Journeymen , Plumbers and Appren- tices and Weinheimers, Inc.' Case 3-CD-449 August 6, 1975 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing the filing of charges on October 23, 1973, by Weinheimers , Inc., herein called Weinheimers, alleg- ing that Plumbers and Gasfitters, Local Union No. 36, United Association of Journeymen, Plumbers and Apprentices, herein called Local 36, has violated Section 8(b)(4XD) of the Act by threatening, coerc- ing, and restraining Weinheimers with an object of forcing Weinheimers to assign certain work to em- ployees represented by Local 36 rather than to indi- viduals who are nonmembers of Local 36 employed by other construction firms. Pursuant to notice, a hearing was held before Hearing Officer John Jay Matchulat on February 11, 12, 13, 20, and 21, 1974. The parties appeared at the hearing and were afforded full opportunity to be heard , to examine and cross -examine witnesses, and to adduce evidence bearing on the issues. Thereafter, Weinheimers and Local 36 each filed a brief in sup- port of its position. 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 rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, including the briefs of the parties, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANIES The parties stipulated that Weinheimers, Inc., a New York State corporation, maintains its principal office and place of business at 1888 Niagara Falls Boulevard, Tonawanda, New York. Weinheimers is engaged in the wholesale and retail sale and distribu- tion of plumbing supplies, floor coverings, kitchen cabinets and equipment, and other materials and is 1 The name of the Charging Party appears as corrected at the hearing. also engaged as a plumbing contractor in the con- struction industry in the Buffalo and western New York area. During the past year, 1973, Weinheimers purchased materials and supplies valued in excess of $50,000 which were shipped to its Tonawanda ware- house directly from firms located outside New York State. During the same period, Weinheimers per- formed services valued in excess of $50,000 for enter- prises located in the State of New York, which enter- prises either received goods and materials from, or performed services directly outside, the State of New York valued in excess of $50,000. Accordingly, we find that Weinheimers is engaged in commerce with- in 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. The parties stipulated that since on or about Octo- ber 19, 1973, West Seneca Plumbing and Excavating Company and G.E.S. Plumbing Company were per- forming plumbing services on various jobsites in the Buffalo and western New York area. On each of said jobsites, materials and supplies were used in the con- struction process, such as lumber, heating and air- conditioning equipment , steel , and various plumbing fixtures and supplies valued in excess of $50,000 were received by contractors working at each of said job- sites directly and indirectly from sources located out- side the State of New York. In accord with the stipu- lation of the parties, we find that West Seneca and G.E.S. 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. 11. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find , that the Plumbers and Gasfitters Local Union No. 36, United Association of Journeymen, Plumbers and Appren- tices, is a labor organization within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background Weinheimers has long been, and continues to be, signatory to a succession of collective-bargaining agreements with Local 36. Jenell Realty Company, Inc., a New York corporation, is engaged in the busi- ness of real estate ownership and development and as a plumbing general contractor in the construction in- dustry. Project Corp. of Western New York, a New York corporation, is also engaged in the business of a plumbing contractor in the construction industry. 219 NLRB No. 129 PLUMBERS AND GASFITTERS LOCAL 36 1017 Prior to 1960 Weinheimers was engaged extensively in the installation of plumbing in residential and apartment house construction . However, Weinheim- ers found itself increasingly unable to compete in the area, and Project Corp. in 1972 and Jenell Realty in 1973 were activated as residential plumbing contrac- tgrs to operate on a nonunion basis . Except for some single-family houses, Weinheimers , as such, has ceased its residential plumbing operations. All the outstanding stock in Weinheimers and Je- nell Realty is owned by Alan P. Bagley. Project Corp. is owned by Bagley (79 shares), his wife (10 shares) and his daughter ( 10 shares). Bagley is both president and director of all three corporations; Richard Schlehr , Weinheimers ' bookkeeper, is secre- tary-treasurer and director of the corporations; and Mr. Silverman is an additional director of Weinheim- ers. It is clear from the record that Bagley exercises active control over the three corporations. All three corporations operate out of the same building personally owned by Bagley; they use the same telephone number, the same accountant, the same personnel ; and they have overlapping insur- ance policies . Separate books are of course kept, as are separate bank accounts. Neither Project Corp. nor Jenell Realty has any employees . Instead, em- ployees of Weinheimers , including Bagley, perform the necessary administrative and decision-making tasks. Project Corp. and Jenell Realty are billed pro rata for the use of Weinheimers ' facilities and per- sonnel . Weinheimers sells plumbing supplies and fix- tures to Project Corp. and Jenell Realty. Weinheim- ers, through delay in billing and payment for supplies, facilities , and personnel , is a major creditor of Project Corp. and Jenell Realty. Bagley personally is also a major creditor of the two corporations. Generally either Bagley or John Gaunder, who is in charge of Weinheimers ' plumbing operations, ob- tains an estimate of labor cost from the subcontrac- tor to determine the bid submitted on behalf of either Project Corp. or Jenell Realty. Thus, Project Corp. and Jenell Realty operate as brokers for plumbing services . Independent nonunion contractors, primar- ily G.E .S. Plumbing and West Seneca Plumbing, are engaged to perform the labor. West Seneca and G.E.S. have no bargaining agreement with Local 36 or, so far as the record shows, any other labor organi- zation . These subcontractors have been engaged in the trade for some years and still perform work for customers unassociated with Weinheimers , Project Corp., or Jenell Realty. The subcontractors have the necessary plumbing licenses , obtain the permits, pro- vide their own supervision , and supply tools to their workers . Neither Project Corp . nor Jenell Realty (nor Bagley) retains control over whom the subcontrac- tors hire, supervises the subcontractors' work, or otherwise controls the subcontractors' operations. Bagley did not inform Local 36 that he had acti- vated Project Corp. and Jenell Realty, and Local 36 did not become aware that the corporations existed until October 1973. On October 19, 1973, Local 36's business manager and its business agent met Bagley in his office and asked about the relationship be- tween Bagley and West Seneca Plumbing. Bagley re- plied that West Seneca was a subcontractor to Proj- ect Corp. and Jenell Realty. The business manager stated that the practice was illegal, that Weinheimers could not operate that way because it was violating its agreement with Local 36 and was either union or nonunion, and that Weinheimers' employees would be told not to report to work. On October 22, the business manager instructed Local 36 plumbers at several Weinheimers ' commercial construction sites not to report to work the following day. Over the phone he told Bagley that all Weinheimers' jobs would be shut down. On October 23, all 25 or 26 Local 36 members employed by Weinheimers failed to report to work and remained off the job for the rest of the week. No further work stoppage has oc- curred. B. Contentions of the Parties No party in interest participated in the hearing or filed a brief. Weinheimers, the Charging Party, con- tends that the Board should not disturb the current assignment of the work in dispute and that the award should apply to the geographic jurisdiction of Local 36. It argues that Weinheimers would not have en- gaged in the work in dispute even if Project Corp. and Jenell Realty had not been activated, since Weinheimers is not competitive in residential con- struction. Thus, Project Corp. and Jenell Realty do not compete with Weinheimers. Weinheimers con- tends that the two companies engage in work differ- ent from and having an operating identity separate from Weinheimers and that the subcontractors are independent businesses in no way controlled by Weinheimers. Local 36's contract with Weinheimers does not therefore bind Project Corp., Jenell Realty, or the subcontractors. Additionally, Weinheimers ar- gues that residential plumbing is not within the ex- clusive jurisdiction of Local 36, but is primarily non- union. The Respondent, Local 36, contends that Wein- heimers , Project Corp., and Jenell Realty are a single integrated operation and that Bagley activated Proj- ect Corp. and Jenell Realty to enable Weinheimers to avoid its contractual obligation with the Union. Lo- cal 36 argues that work performed by Project Corp. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Jenell Realty is work that should properly be performed by Weinheimers under the collective-bar- gaining agreement. It cites the provision in the cur- rent collective-bargaining agreement creating special rates for residential plumbing. Local 36 urges the Board to find that the Charging Party violated its collective-bargaining agreement by the use of two al- ter ego corporations, that the work in dispute is prop- erly the work of the Union under its collective-bar- gaining agreement, and that the actions of the Charging Party were designed to circumvent its col- lective-bargaining agreement with the Respondent. C. Applicability of the Statute Before the Board may proceed with a determina- tion of dispute under 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. We are not satisfied that any such violation has occurred in this case. The evidence herein is insufficient to establish a traditional jurisdictional dispute between two com- peting groups of employees over the assignment of work. Thus, Bagley activated Project Corp. and Je- nell Realty to engage in residential plumbing con- struction through the use of nonunion subcontrac- tors. In October, Respondent's business manager met with Bagley, complained that Bagley had improperly transferred work to nonunion subcontractors, con- tended that the practice was illegal because the work was covered by its collective-bargaining agreement with Weinheimers, and struck Weinheimers to pro- test the transfer of work. It is apparent that the dis- agreement which led to the strike stemmed from a claim to unit work and the allegedly improper trans- fer of it out of the unit, rather than from the compet- ing claims of groups of employees to work on juris- dictional grounds. In short, the real dispute is over the setting up of Project Corp. and Jenell Realty to operate with nonunion subcontractors and Respondent's attempt to retrieve the jobs for its members. To apply jurisdictional dispute principles to a unit work claim would distort the statute .2 Ac- cordingly, we shall quash the notice of hearing. ORDER It is hereby ordered that the notice of hearing is- sued in this case be , and it hereby is, quashed. 2 Highway Truckdrivers & Helpers, Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (Safeway Stores, Incorporated), 134 NLRB 1320, 1323 ( 1961).