Plumbers, Local 345

National Labor Relations Board - Board Decisions

Apr 9, 1974

210 N.L.R.B. 22 (N.L.R.B. 1974)

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the
United States and Canada, Local Union No. 345
and Acme Sprinkler Company, Inc.; Interstate
Landscape Corporation ; Valley Crest Landscape,
Inc.; A. F. Gaudenti Landscaping ; Robert E.
Sapien , Inc.; and Independent Irrigation Contrac-
tors Committee and Laborers ' International Union
of North America , Local No. 89, AFL-CIO
Laborers' International Union of North America,
Local No. 89, AFL-CIO and Valley Crest Land-
scape, Inc.; 5 Star Landscape, Inc.; Omega
Landscape Company; Acme Sprinkler Company,
Inc.; A. A. Attridge Sprinkler., Belsy Landscape;'
Doose Enterprises ; A. F. Gaudenti Landscaping;
United Sprinkler Co.; 2 Robert E. Sapien, Inc.; V.
C. Moffitt & Co.; Interstate Landscape Corpora-
tion ; Kawai Brothers; Tom Moran Landscaping;
Riverside Sprinklers , Inc.; Landscape Irrigation
Spec.; Don Guilliams & Son; 3 and Independent
Irrigation Contractors Committee and United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, Local Union No. 345
Laborers' International Union of North America,
Local No. 89, AFL-CIO and United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada, Local Union No . 345 and Riverside
Sprinklers, Inc. Cases 21-CD-352, 21-CD-359,
21-CD-361, 21-CD-362, 21-CD-363, 21-CD-
360, 21-CD-364, 21-CD-366, 21-CD-368, and
21-CD-367
April 9, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, f,-
'.low-ing charges filed by William N. Cohen, Esq., Stewart
H. Young, Esq., John D. Collins, Esq., Richard M.
Grossberg, Esq., and Eugene Miller, Esq., on behalf
of the above-captioned Employers and Independent
Irrigation Contractors Committee, alleging that
Laborers' International Union of North America,
Local No. 89, AFL-CIO, herein called the Laborers,
and United Association of Journeymen and Appren-
1 No evidence was presented concerning this company.
2 Id
3 Id
210 NLRB No. 10
ties of the Plumbing and Pipefitting Industry of the
United States and Canada, Local Union No. 345,
herein called the Plumbers, have violated Section
81,b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the Employers to assign certain work to
employees represented by the Plumbers, rather than
to employees represented by the Laborers, or to
employees represented by the Laborers, rather than
to employees represented by the Plumbers, respec-
tively. A duly scheduled hearing was held before
Hearing Officer Roberto G. Chavarry on December
14, December 17, and December 18, 1973. The
Employers, the Committee, and the Plumbers ap-
peared at the hearing and were afforded a full
opportunity to be heard, to examine and cross-
examine witnesses , and to adduce evidence bearing
on the issues. No appearance was made at the
hearing on behalf of Laborers. No briefs were filed.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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.4
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYERS
Counsel for the Plumbers read into the record from
the Board's 10(1) petition in this matter and the
opinion of the United States District Court for the
Southern District of California, Civil No.
73-490-GT, in which the court found that all of the
Employers involved in this proceeding, in the course
and conduct of their business operations, each
annually perform services valued in excess of $50,000
for customers located within the State of California,
who annually purchase or receive goods, materials,
and supplies valued in excess of $50,000 directly
from suppliers located outside the State of Califor-
nia. Accordingly, we find that the Employers 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.
II. THE LABOR ORGANIZATIONS INVOLVED
In Local No. 89, Laborers' International Union of
North America, AFL-CIO (Riverside Sprinklers, Inc.),
205 NLRB No. 147, involving the same two labor
4 On December 7, 1973, the Laborers filed a Motion to Quash. At the
hearing the motion was opposed by the attendant parties . The Hearing
Officer denied the Motion to Quash.
PLUMBERS , LOCAL 345 23
organizations, the Board found that they were both
labor organizations within the meaning of Section
2(5) of the Act. Accordingly, we find that the
Laborers and Plumbers are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
The Employers are contractors engaged in per-
forming landscape works and installing lawn sprin-
kler systems at various jobsites in San Diego County,
California. They have contractual relations with the
Laborers and the Plumbers. They use laborers to
perform the landscaping work and to dig ditches.
Sometimes large machines are used to dig the
trenches. In this case operating engineers do the
trench digging. The contractors have assigned the
laying out of the lawn sprinkler system and the
pipework, including the installation of valves and
sprinkler heads, to plumbers. The plumbers first read
the blueprints and interpret them. They then mark
up the area with powder according to the plan from
the point of the water source to show the location of
the trenches and the sprinkler heads. It is their job to
make sure that the installation is being performed in
accordance with the plans and specifications.
The pipe comes from the supply house and is
delivered to a stockpile. The plumber moves the pipe
from the stockpile to the trench. Then the pipe is laid
in the trench. The pipe is joined together either by
screw or glue by the plumber. After the pipe is joined
together, the plumber tests it. Then the trench is
backfilled by the laborer.
Some irrigation systems feature complex automatic
devices for turning the system off and on or for
injecting fertilizer. The work of installing these
devices is done by plumbers.
On July 13, 1973, the Laborers sent a letter to 10
employers who are bound by the Master Labor
Agreement of Laborers for San Diego County
advising them that if the Employers assigned the
work of lawn sprinkler irrigation to members of the
Plumbers rather than to members of the Laborers,
Laborers would picket and strike and/or remove its
members from any of the Employers' present or
future jobs in progress in San Diego County. This
letter was sent to Valley Crest Landscape, Inc., A. F.
Gaudenti Landscaping, Robert E. Sapien, Inc., 5
Star Landscape, Inc., Omega Landscape Company,
A. A. Attridge Sprinkler, Doose Enterprises, V. C.
Moffitt & Co., Riverside Sprinklers, Inc., and
Landscape Irrigation Spec.
In early 1973, Joe Alcosar, the vice president of
Laborers, told Robert Weiland, the president and
general manager of Interstate Landscape Corpora-
tion, that the Laborers was going to take the
irrigation work away from the Plumbers. Since
August, 1973, the Laborers has sent Interstate three
trust fund violation notices, presumably for having
nonlaborers performing work at the jobsite. In one of
these notices, specific reference was made to one
worker who was a member of the Plumbers and who
was performing the installation of the irrigation
system. After these notices were received by the
contractor on the job, McKellar and Associates, that
contractor expressed a concern to Interstate concern-
ing the progress of the work as a result of the
apparent intent of the Laborers to interfere with the
job.
In March 1973, Solomon Johnson, a Laborers
representative, told 5 Star Landscape, Inc., that he
was going to shutdown the job on which 5 Star was
working if the employer did not use laborers and
issued three or four trust fund violation notices as a
result of the work being done by plumbers. In
addition, Valley Crest Landscape, Inc., has received
trust fund violation notices from the Laborers, copies
of which were sent to its contractors. On October 11,
1973, Studer, the Laborers attorney, informed Jack
Anderson, secretary of Riverside Sprinklers, Inc.,
that if Riverside used laborers to perform the work of
installation of lawn sprinklers, its contract with the
Laborers would not be canceled and the charges of
trust fund violations would be dropped.
The Laborers sent cancellation notices to 12
employers with which it had short-form agreements.
These employers included A. A. Attridge Sprinkler,
Acme Sprinkler Company, Inc., 5 Star Landscape,
Inc., Landscape Irrigation Spec., Valley Crest Land-
scape, Inc., Interstate Landscape Corporation, V. C.
Moffitt & Co., Doose Enterprises, Kawai Brothers,
Robert E. Sapien, Inc., Omega Landscape Company,
and A. F. Gaudenti Landscaping.
Tom Moran testified that in September 1973, a
representative of the Laborers threatened to shut his
job down and picket the job if Moran did not use
members of the Laborers to do the irrigation work.
Joseph St. John testified that in April 1973, A. F.
Gaudenti was threatened by Joe Alcosar, the vice
president of the Laborers, that if he did not use
laborers to lay pipe the Laborers would strike and
shut down his job.
On May 17, 1973, a representative of the Laborers
informed David W. Wilson, vice president and
branch manager of Valley Crest Landscape, Inc.,
that he wanted members of the Plumbers who were
putting in the irrigation systems removed from the
5 There is no dispute concerning the landscape work.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job and the job stopped until such times as members
of the Laborers were installing the irrigation system.
On June 29, 1973, Eugene Miller, attorney for the
Plumbers, telephoned Stewart H. Young, attorney
for Acme Sprinklers, Inc., and threatened that the
Plumbers would strike and picket at the present and
future jobs of Acme if Acme reassigned the work of
installing sprinkler systems from plumbers to labor-
ers. The conversation was confirmed by Miller in a
telegram. In addition, Miller told John D. Collins,
Interstate's attorney, that if Interstate failed to assign
the irrigation-type work to members of the Plumbers,
the Plumbers would picket or close down Interstate
on present and future jobs.
Most of the Employers continued to use plumbers
to perform the pipe installation work. Some Employ-
ers did reassign the work to members of the Laborers
but upon finding their work unsatisfactory reas-
signed the work to members of the Plumbers.
No evidence was presented that there had been any
voluntary adjustment of the dispute.
B. The Work in Dispute
The work in dispute consists of the installation of
irrigation systems in San Diego County, California.
C. Contentions of the Parties
The Employers and the Plumbers, as stated at the
hearing, contend that assignment of the disputed
work should be made to employees represented by
the Plumbers. The Plumbers further contends that
the Board's order assigning this work should be
broad enough to cover not only the jobsites and
Employers involved in this dispute but also cover the
assignment of this work in any future job for any
employer in the San Diego County area.
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 (1) there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and (2) the parties have not agreed upon a
method for the voluntary adjustment of the dispute.
In this case, it is undisputed that the Laborers
threatened to picket and strike and/or remove its
members from any of the Employers' present or
future jobs in San Diego County with the object of
requiring the Employer to assign the disputed work
to its members. It also issued trust fund violation
notices to some of the Employers, copies of which
6 N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System ], 364 U.S. 573(1961).
were sent to the Employers' contractors, for having
nonlaborers performing installation of the irrigation
system, for the apparent object of requiring the
Employers' contractors to put pressure on the
Employers to assign the disputed work to its
members. In addition, it also sent cancellation
notices to 12 employers with which it had short-form
agreements apparently because they did not reassign
the disputed work to members of the Laborers.
Moreover, the Plumbers, through its attorney,
threatened Acme Sprinklers, Inc., and Interstate
Landscape Corporation that it would strike and
picket c_ close down their present or future jobs if
they reassigned the disputed work from members of
the Plumbers to members of the Laborers or failed to
assign the work to members of the Plumbers.
Accordingly, we are satisfied that there is reasonable
cause to believe a violation of Section 8(b)(4)(D) did
occur.
We also conclude that there exists no effective
method for the voluntary adjustment of the dispute
within the meaning of Section 10(k) of the Act.
Under these circumstances, we find that it will
effectuate the policies of Section 10(k) and Section
8(b)(4)(D) of the Act for us to determine the merits
of the dispute, and we therefore find that this dispute
is properly before the Board.
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 s The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors
involved in a particular case.7
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
Although all the Employers have contracts with
both the Laborers and the Plumbers, the contracts
were not introduced into evidence. Accordingly, we
do not find that this factor tends to favor the
positions of any of the parties.
2. Skills of the employees
All the Employers stated that only the members of
the Plumbers are qualified to perform the work of
laying out the irrigation systems and installing the
pipes. They further stated that if they had the choice
7 International Association of Machinists, Lodge No 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402.
PLUMBERS , LOCAL 345
they would continue to use plumbers inasmuch as
they feel the plumbers have demonstrated through
past experience that they are highly qualified to
perform this difficult work. The Employers who had
used laborers stated that they were dissatisfied with
the work done and had had to have it completed by
members of the Plumbers. We therefore find that the
skills factor favors the Employers' assignment.
3. Efficiency and economy
Some Employers indicated that, where they had
tried to have members of the Laborers perform the
disputed work, the operation had turned out to be
inefficient and more costly in terms of man-hours
used as well as delays in completion of jobs.
Moreover, some Employers testified that, under
California statutes, whenever there is an apprentice
program for some specific craft, any employer
performing work for the State of California must
utilize people from this training program. According-
ly, since only the Plumbers has such an accredited
apprentice program for the training of plumbers and
fitters, these Employers testified that if the Board
were to award the disputed work to the Laborers,
they would lose the contracts they now have or might
not.get future contracts to perform work for the State
of California. In our opinion, the factors of efficiency
and economy favor the Employers' assignment.
4. Company and area practice
All the Employers testified that they have histori-
cally used members of the Plumbers to perform the
work in question and that under the prevailing area
practice this work was assigned to Plumbers. Accord-
ingly, we find that the practice of the Employers and
the area favor the Employers' assignment.
5. National Joint Board awards
Although the Board does not consider awards of
the National Joint Board to be binding on the Board,
we do consider it a factor in determining the proper
assignment of work in dispute. The Plumbers
introduced into evidence nine Joint Board decisions
in which similar and identical work was awarded to
plumbers and steamfitters on the basis of trade
practice.
Accordingly, we find that this factor tends to favor
the position of the Employers and the Plumbers.
See Riverside Sprinklers, Inc, 205 NLRB No 147.
Indeed , Board records indicate that similar cases are pending in the
same Region.
10 Local 294, International Brotherhood of Teamsters, Chauffeurs, Ware-
Conclusion
25
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the Employers' employees who are
represented by the Plumbers are entitled to perform
the work in dispute. This assignment is consistent
with the Employers' initial assignment, the Employ-
ers' past practice and area practice, the fact that
plumbers employed by the Employers have the
requisite high skills, the efficiency and economy of
operation, and the National Joint Board awards. In
making this determination, we are awarding the work
in question to employees employed by the Employers
who are represented by the Plumbers, but not to that
Union or its members.
As set forth above the Plumbers requests that the
Board issue a broad order covering all employers in
San Diego County, California. The present dispute
has arisen in the past.8 Moreover, there is nothing in
the record that would indicate a voluntary adjust-
ment of the dispute within the foreseeable future.9
The Board has previously held that it will not
restrict the scope of its determination to a specific
jobsite if there is evidence that similar disputes may
occur in the future.10 However, to issue an order
involving other employers who have not been served
or been given notice of this 10(k) proceeding and
who have not had an opportunity to participate or
give evidence is, in these circumstances in our view
inadvisable. Accordingly, we shall give a broad order
but limit it to the jobs in which the dispute arose and
to all similar work done or to be done by the
Employers in this proceeding on projects in San
Diego County, California.
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
hereby makes the following Determination of Dis-
pute:
1. Employees of the employers herein, who are
currently represented by United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Cana-
da, Local Union No. 345, are entitled to perform the
work of installing irrigation systems at all present
and future construction sites of the employers in this
proceeding in San Diego County, California.
2. Laborers' International Union of North Amer-
housemen and Helpers of America (Bethlehem Steel Corporation), 174 NLRB
30, 33; Local 1184, affiliated with laborers International Union of North
America (Massey Sand and Rock Co.), 198 NLRB No. 16.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ica, Local No. 89, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require Riverside Sprinklers, Inc., Valley
Crest Landscape, Inc., 5 Star Landscape, Inc.,
Omega Landscape Company, Acme Sprinkler Com-
pany, Inc., A. A. Attridge Sprinkler, Doose Enter-
prises, A. F. Gaudenti Landscaping, Robert E.
Sapien , Inc., V. C. Moffitt & Co., Interstate Land-
scape Corporation, Kawai Brothers, Tom Moran
Landscaping, Landscape Irrigation Spec., Independ-
ent Irrigation Contractors Committee, to assign the
disputed work to laborers represented by it on those
employers' present and future projects in San Diego
County, California.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Laborers' Interna-
tional Union of North America, Local No. 89,
AFL-CIO, shall notify the Regional Director for
Region 21 , in writing, whether it will refrain from
forcing or requiring the aforementioned Employers
by means proscribed by Section 8(b)(4)(D) of the
Act, to assign the work in dispute to laborers
represented by it on these employers' present and
future projects in San Diego County, California.