Plumbers Local 2 (Morse Diesel)

National Labor Relations Board - Board Decisions

May 22, 1992

307 N.L.R.B. 644 (N.L.R.B. 1992)

644
307 NLRB No. 103
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1991 unless otherwise indicated.
2 A natural gas salamander is a temporary heating unit that uses
natural gas as its fuel source.
Plumbers Union, Local No. 2, a/w United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL–CIO (Morse
Diesel International and Hydraulic Plumbing
and Heating Corp.) and Contractors’ Associa-
tion of Greater New York, Inc. and Mason
Tenders District Council of Greater New York
of the Laborers International Union of North
America, AFL–CIO. Case 2–CD–825
May 22, 1992
DECISION AND DETERMINATION
OF DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed November 26, 1991, by the Contractors’ Associa-
tion of Greater New York, Inc., alleging that the Re-
spondent, Plumbers Local No. 2, violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
Morse Diesel International (Morse Diesel) to assign
certain work to employees it represents rather than to
employees represented by Mason Tenders District
Council of Greater New York (Mason Tenders). The
hearing was held January 14, 1992, before Hearing Of-
ficer Terry Morgan.
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
Morse Diesel, a New York corporation, is engaged
in the business of general contracting and construction
management at its facility in New York, New York,
where it annually receives gross revenues in excess of
$1 million, and purchases and receives goods, prod-
ucts, and supplies in excess of $50,000 from points di-
rectly outside the State of New York. Morse Diesel is
an employer-member of the Contractors’ Association
of Greater New York, Inc. (CAGNY), a multiemployer
association which represents its employer-members in
negotiating and administering collective-bargaining
agreements with various labor organizations, including
Mason Tenders.
Hydraulic Plumbing and Heating Corp. (Hydraulic),
a New York corporation with an office and place of
business at 222–15 Northern Boulevard, Bayside, New
York, is engaged in the business of plumbing con-
tracting. Annually, in the course and conduct of its
business, Hydraulic receives gross revenues in excess
of $1 million and purchases and receives goods, mate-
rials, and supplies valued in excess of $50,000 from
points located directly outside the State of New York.
The parties stipulate, and we find, that Morse Diesel
and Hydraulic are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and that Plumbers Local No. 2 and Mason Tenders are
labor organizations within the meaning of Section 2(5)
of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Morse Diesel is the general contractor and construc-
tion manager at a construction site located at 44 West
Fourth Street. Morse Diesel subcontracted all the
plumbing work at the site to Hydraulic. By change
order dated October 22, 1991,1 Morse Diesel amended
its contract with Hydraulic to include a provision re-
quiring Hydraulic to provide a temporary natural gas
heating system to facilitate construction at the site
through the upcoming winter. To that end, Hydraulic
ordered over 130 natural gas salamanders2 for delivery
at the site.
Morse Diesel is a party to a collective-bargaining
agreement with Mason Tenders. Hydraulic is a party to
a collective-bargaining agreement with Plumbers Local
No. 2.
On November 22, Mel Goldsmith, business agent
for Plumbers Local No. 2, contacted Morse Diesel’s
general superintendent and senior vice president, Phil-
lip Undank, and claimed the work of unloading the
natural gas salamanders on behalf of the plumbers em-
ployed by Hydraulic. Undank told Goldsmith that the
work was within the jurisdiction of the Mason Tenders
employed by Morse Diesel by virtue of the Mason
Tenders/Morse Diesel collective-bargaining agreement.
According to Undank, Goldsmith told him that if the
work was not assigned to employees represented by
Plumbers Local No. 2, they would refuse to connect
the units to the natural gas source. As a result of this
conversation, Undank ordered Hydraulic to postpone
delivery of the salamanders from November 25 to De-
cember 4.
When the salamanders arrived at the jobsite on De-
cember 4, Hydraulic’s foreman, Kevin Brady, a mem-
ber of Plumbers Local No. 2, went to Morse Diesel’s
job superintendent, Stephen Jeffrey, and informed Jef-
frey that the shipment had arrived and that the plumb-
ers would unload the salamanders and move them into
the construction area. Jeffrey did not respond to Brady.
However, when Brady left Jeffrey summoned the
Mason Tenders foreman and told him the heaters had
arrived and to get ready to unload them.
645PLUMBERS LOCAL 2 (MORSE DIESEL)
3 Pursuant to an injunction under Sec. 10(l) of the Act, issued on
December 10 by the United States District Court for the Southern
District of New York, the mason tenders unloaded the salamanders
pending resolution of this dispute.
4 Although the notice of hearing describes the disputed work as the
‘‘unloading of heaters known as salamanders,’’ it is clear from the
record that the term ‘‘unloading’’ includes carrying the heaters to the
general vicinity where they eventually will be used. Thus we find
that the work in dispute involves the unloading and general place-
ment of the heaters.
5 Plumbers Local 525 (P & P Plumbing), 266 NLRB 515, 517
(1983); see also Plumbers District Council 16 (L & M Plumbing),
301 NLRB 1203, 1205 (1991); Laborers Local 646 (General Refrig-
eration), 268 NLRB 472, 473 (1983).
At the loading dock, Jeffrey and the Mason Tenders
were met by Brady and the Plumbers Local No. 2 shop
steward, Phil Rozansky, who insisted that employees
represented by the Plumbers and not the Mason
Tenders would unload the salamanders. When Jeffrey
said he would not allow the plumbers to use the hoists
to carry the units to the floors, Brady replied that the
plumbers would carry the heaters up the stairs, if nec-
essary. Jeffrey ordered the mason tenders to begin un-
loading the salamanders but Brady and Rozansky stood
between the mason tenders and the units. Jeffrey then
refused delivery of the salamanders and sent the truck
away.3
B. Work in Dispute
The disputed work involves the unloading and gen-
eral placement4 of portable natural gas heaters known
as salamanders at the jobsite located at 44 West Fourth
Street, New York, New York.
C. Contentions of the Parties
Plumbers Local No. 2 argues that its collective-bar-
gaining agreement with Hydraulic requires that em-
ployees it represent be awarded the work of unloading
and placing the natural gas salamanders. Plumbers
Local No. 2 also argues that it is standard practice in
the industry for plumbers to unload and place natural
gas salamanders, that this practice is necessary because
of the safety risk of mishandled heaters, and that the
plumbers have the extensive training necessary to pre-
vent costly accidents.
Morse Diesel and Mason Tenders argue that em-
ployees represented by the Mason Tenders have the
exclusive right to perform the work at issue by virtue
of the collective-bargaining agreement between them,
that the work of unloading and placing salamanders is
unskilled work, and that it is standard practice in the
industry for mason tenders or laborers to perform this
work. Morse Diesel and Mason Tenders also argue that
the preference and past practice of Morse Diesel, rath-
er than that of Hydraulic, should be given weight be-
cause Morse Diesel controls the assignment of the
work in dispute.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for voluntary
adjustment of the dispute.
As noted above, Undank testified that, on November
22, Goldsmith told him that if plumbers were not as-
signed the work of unloading the salamanders, they
would refuse to connect the heaters to the gas, a task
which concededly belonged to them. Thereafter, on
December 4, employees represented by Plumbers Local
No. 2 stood between the mason tenders and the sala-
manders, physically preventing the mason tenders from
unloading the heaters. We find reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D) has oc-
curred and that there exists no agreed method for vol-
untary adjustment 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.
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 (1962).
As a threshold issue, we note that the parties dis-
agree as to whether the Board should give weight to
the preference and past practice of Hydraulic or to that
of Morse Diesel. We note initially that in cases involv-
ing similar circumstances, the Board has considered
the subcontractor’s and not the general contractor’s
preference and past practice where the former controls
the assignment of the disputed work.5 In this regard,
we reject the Mason Tenders’ and Morse Diesel’s con-
tention that Morse Diesel, rather than Hydraulic, con-
trols the assignment of the disputed work. The October
22 change order subcontracted to Hydraulic the work
of ‘‘furnishing all labor material, tools and supervision
required to provide a temporary gas heating system for
the project,’’ including ‘‘all equipment rental, delivery,
handling and removal costs.’’ Additionally, Hydrau-
lic’s project manager, Miller, testified that he included
labor costs for the disputed work as part of his bid.
Moreover, whereas certain costs were specifically ex-
cluded from the change order, the costs for the dis-
puted work were not mentioned.
Despite this specific language, Morse Diesel never-
theless argues that the disputed work was not encom-
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
passed within the work it subcontracted to Hydraulic.
Morse Diesel’s chief mechanical/electrical estimator,
Joseph Berrios, testified that, at a meeting on August
21, he instructed Miller that the work of unloading and
placing the natural gas salamanders was within the ju-
risdiction of the Mason Tenders and not to include in
his bid the costs of that work. Miller contradicted
Berrios, testifying that the costs for the disputed work
were included in his bid. Berrios’ testimony was not
corroborated by any other witnesses, although other
agents of Morse Diesel also attended the August 21
meeting. Thus we find that the October 22 change
order is the best evidence that Morse Diesel subcon-
tracted to Hydraulic total responsibility for providing
the temporary gas heating system, including the dis-
puted work, and that parole evidence in the form of
Berrios’ testimony which contradicts the written con-
tract is not persuasive. Accordingly, we conclude that,
under the circumstances of this case, it is the pref-
erence and past practice of Hydraulic, rather than that
of Morse Diesel, which should be considered as a fac-
tor in determining the dispute.
The following factors are relevant in making the de-
termination of the dispute.
1. Collective-bargaining agreements
Hydraulic has had successive collective-bargaining
agreements with Plumbers Local No. 2. The 3-year
contract that expired June 25, 1991, has been replaced
with a subsequent agreement; both provide that the
‘‘installation, maintenance, servicing, handling, and
dismantling of all piping and equipment’’ for a tem-
porary heating system shall be performed by employ-
ees represented by Plumbers Local No. 2. That provi-
sion is broad enough to encompass the disputed work.
Hydraulic is not a party to a collective-bargaining
agreement with Mason Tenders. We therefore find that
the factor of collective-bargaining agreements favors
an award of the work in dispute to employees rep-
resented by Plumbers Local No. 2.
2. Employer preference and past practice
Hydraulic’s project manager, Miller, testified that,
based on his experience, the disputed work always has
been assigned to its Plumber-represented employees
and that it is Hydraulic’s preference to assign this
work to these employees. Accordingly, we find that
Hydraulic’s preference and past practice favor award-
ing the work in dispute to employees represented by
Plumbers Local No. 2.
3. Area practice
Morse Diesel’s job superintendent, Jeffrey testified
that, on another job approximately 2 to 3 years earlier,
mason tenders and not plumbers unloaded and placed
natural gas salamanders at the site. On the other hand,
witnesses for Plumbers Local No. 2 testified that em-
ployees it represents always perform the disputed
work. Accordingly, we find that this factor does not
favor an award to employees represented by either
Union.
4. Relative skills
Witnesses for Plumbers Local No. 2 testified with-
out contradiction that natural gas salamanders must be
inspected carefully for defects or damage before being
connected to the natural gas source. There is no dis-
pute that mason tenders are not qualified to make this
inspection. On the other hand, it is undisputed that no
special skills are required to unload and generally
place the heaters and that the required inspection need
not be performed when the salamanders are unloaded
from the truck. It is therefore immaterial that the
mason tenders are not qualified to inspect the heaters.
Accordingly, we find that this factor does not favor an
award to employees represented by either Union.
5. Economy and efficiency of operations
Notwithstanding our above finding, that no special
skills are required to unload and generally place the
natural gas salamanders, Miller testified without con-
tradiction that it is more economical and efficient for
the plumbers to inspect the heaters as they are un-
loaded in order to avoid hauling defective units to the
floor and back to the truck. Accordingly, this factor fa-
vors an award of the disputed work to employees rep-
resented by Plumbers Local No. 2.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Plumbers Local
No. 2 are entitled to perform the work in the dispute.
We reach this conclusion relying on the factors of col-
lective-bargaining agreements, employer preference
and past practice, and economy and efficiency of oper-
ations. In making this determination, we are awarding
the work to employees represented by Plumbers Local
No. 2, not to that Union or its members. The deter-
mination is limited to the controversy that gave rise to
this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Hydraulic Plumbing and Heating
Corp. represented by Plumbers Union, Local No. 2,
a/w United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL–CIO are entitled to
perform the work of unloading and placing natural gas
salamanders at the construction site located at 44 West
Fourth Street, New York, New York.