Plumbers Local 305 (Abington Constructors)

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 1048 (N.L.R.B. 1992)

1048
307 NLRB No. 161
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1991 unless otherwise indicated.
2 Employer witness John DeStefano testified that the Respondent’s
picket signs read: ‘‘Abington paying substandard wages.’’
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
U.S. and Canada, Local Union No. 305, AFL–
CIO and Abington Constructors, Inc. Case 34–
CD–46
June 30, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charge in this Section 10(k) proceeding was
filed May 13, 1991,1 by Abington Constructors, Inc.
(the Employer) alleging that the Respondent, United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the U.S. and Can-
ada, Local Union No. 305, AFL–CIO violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
the Employer to assign certain work to employees it
represents rather than to the Employer’s unrepresented
employees. The hearing was held June 7, before Hear-
ing Officer Gail R. Moran.
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
The Employer, a New Hampshire corporation with
its principal place of business located in Portsmouth,
New Hampshire, is engaged in the business of con-
struction. During the 12 months preceding the hearing,
the Employer performed services outside the State of
New Hampshire valued in excess of $50,000, and pur-
chased and received materials valued in excess of
$50,000 from points located outside the State of New
Hampshire. At the time of the hearing, the Employer
was performing a job in Preston, Connecticut, valued
at approximately $2 million. Accordingly, we find that
the Employer is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The
Respondent admitted, and we find, that the Respondent
is a labor organization within the meaning of Section
2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
On March 20, the Employer assigned to its unrepre-
sented employees the work of installing large and
small-bore pipe at a waste energy facility in Preston,
Connecticut. Since March 25, and continuing through
the date of the hearing, the Respondent has been pick-
eting the Preston jobsite.2 At the time of the hearing,
the Employer estimated that the job was 40 percent
complete.
On May 8, the Employer’s construction manager,
John DeStefano, met with the Respondent’s business
agent, Cameron Champlin, at a local restaurant.
DeStefano asked how long the picketing would con-
tinue and Champlin replied that the picketing would
continue until the Employer hired the Respondent’s
men under an agreement. Champlin said that his men
were good and productive workers and had worked in
Connecticut on various jobs. DeStefano said that
maybe he could consider them on other projects down
the road, but not for this project. When DeStefano
again asked how long the picketing would continue,
Champlin said that the picketing would continue ‘‘until
the garbage trucks came.’’ DeStefano explained that
the garbage trucks come to the site at the point when
the facility is completed and operational. Champlin
again requested that the Employer hire some of his
men on the job. DeStefano again replied that that was
not going to be possible.
B. Work in Dispute
The disputed work involves the installation of pre-
fabricated large-bore pipe, fabrication and installation
of small-bore pipe, and installation of processing
equipment at the waste-to-energy plant construction
project in Preston, Connecticut.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that the Respondent violated Section
8(b)(4)(D) of the Act by picketing the Preston jobsite
in order to force the Employer to reassign the disputed
work to employees represented by the Respondent, and
that the Board must therefore determine the merits of
the dispute. It further contends that the work in dispute
should be awarded to its unrepresented employees on
the basis of the Employer’s preference and past prac-
tice, the skills of its employees, and economy and effi-
ciency of operations. Finally, the Employer asserts that
the Respondent never communicated a disclaimer of its
interest in the disputed work to the Employer.
The Respondent maintains that no jurisdictional dis-
pute exists because it made no demand for the work
in question, has disclaimed any interest in the work,
and has been picketing in protest of the Employer’s
failure to pay its employees area standard wages and
benefits.
1049PLUMBERS LOCAL 305 (ABINGTON CONSTRUCTORS)
3 The Respondent requested a postponement of the hearing so that
it could arrange for Business Agent Cameron Champlin to testify.
In light of the fact that the Respondent had adequate notice of the
time and place of the hearing, the hearing officer properly denied
the Respondent’s request.
4 DeStefano testified that he was not aware that the Respondent
had disclaimed any interest or right to perform the work at the Pres-
ton facility.
5 Cement Masons Local 577 (Rocky Mountain Prestress), 233
NLRB 923, 924 (1977).
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 the vol-
untary adjustment of the dispute.
As discussed above, testimony was presented at the
hearing that the Respondent claimed that the installa-
tion of the large and small-bore pipe at the Preston
jobsite should be reassigned to employees represented
by the Respondent, and picketed the jobsite in order to
obtain that work. According to DeStefano, the Re-
spondent’s business agent demanded the work and in-
dicated that the picketing would continue until his men
were hired under an agreement.
The Respondent asserts that it did not engage in pro-
hibited conduct or even make a demand for the work,
but it failed to produce witnesses to testify in this pro-
ceeding.3 The Respondent did make an offer of proof
that if Champlin were to testify he would testify that
at no time has the Respondent made any demand for
the work in dispute. 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, a conflict in the testimony need not
be resolved in order for the Board to proceed to a de-
termination of the dispute. Laborers Local 334 (C. H.
Heist Corp.), 175 NLRB 608, 609 (1969). Even if we
were to accept the Respondent’s offer of proof, we
would find, based on the record before us, that there
is reasonable cause to believe that a violation of Sec-
tion 8(b)(4)(D) has occurred and that there exists no
agreed-upon method for the voluntary adjustment of
this dispute. We accordingly so find.
We also find that the Respondent’s purported dis-
claimer is ineffective. At the hearing, the Respondent’s
counsel asserted in his closing statement that ‘‘the
Union is not seeking the work of this employer at
the—any work of this employer at the Preston, Con-
necticut, facility.’’ The Respondent did not disclaim
this work prior to the hearing4 and the picketing con-
tinued throughout the hearing. Under these cir-
cumstances, we conclude that the declaration ‘‘the
Union is not seeking the work of this employer’’ is
‘‘part of the Union’s denial that its object in picketing
was the unlawful one of forcing a particular work as-
signment.’’ Operating Engineers Local 369 (Austin
Co.), 255 NLRB 476, 478 fn. 1 (1981). Accordingly,
we find that the Respondent’s counsel’s statement was
simply a denial that the Respondent was seeking the
work rather than a disclaimer of any interest in per-
forming it.
The Respondent maintains that the object of its pick-
eting was to protest the Employer’s failure to pay its
employees the prevailing wage. Even assuming that
one object of the Respondent’s picketing was to pro-
test the Employer’s wage rates, we have already deter-
mined that another object of the picketing was to force
the Employer to assign the disputed work to employ-
ees represented by the Respondent. Because ‘‘[o]ne
proscribed object is sufficient to bring a union’s con-
duct within the ambit of Section 8(b)(4)(D),’’5 we find
that the dispute is properly before the Board for deter-
mination under Section 10(k) of the Act.
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 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Certification and collective-bargaining
agreements
The Employer has no history of collective bar-
gaining with the Respondent or any other labor organi-
zation and has no contract with either group of em-
ployees. Therefore, this factor does not favor an award
of the disputed work to either the employees rep-
resented by the Respondent or to the Employer’s em-
ployees.
2. Employer preference and past practice
DeStefano testified that the Employer prefers that its
unrepresented employees perform the disputed work.
He also testified that similar work has historically been
performed by the Employer’s employees on jobsites in
other states. Accordingly, we find that the factor of
employer preference and past practice favors an award
of the disputed work to the Employer’s employees.
3. Area and industry practice
No evidence was presented regarding the area and
industry practice. Accordingly, we find that this factor
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
does not favor awarding the work to either group of
employees.
4. Relative skills
The Employer presented evidence that its employees
possess the skills required to perform the work in dis-
pute and that the Employer and general contractor have
been satisfied with the performance of the Employer’s
employees on the job. The Respondent presented no
evidence regarding the relative skills of the employees
it represents. Accordingly, we find that this factor fa-
vors an award of the disputed work to the Employer’s
employees.
5. Economy and efficiency of operations
DeStefano testified that it is more efficient and eco-
nomical to use its own employees, who are trained and
certified to perform the work in dispute, than it would
be to employ employees represented by the Respond-
ent. DeStefano contends that training the employees
represented by the Respondent to perform the disputed
work would be a great expense to the Employer and
would result in lost time on the job. These expenses
and delays could also cause the Employer to fail to
meet the completion schedule set by the general con-
tractor.
Based on the testimony presented, we find that this
factor favors awarding the disputed work to the Em-
ployer’s employees.
Conclusions
After considering all the relevant factors, we con-
clude that employees of the Employer are entitled to
perform the work in dispute. We reach this conclusion
relying on the Employer’s preference and past practice,
relative skills of the Employer’s employees, and econ-
omy and efficiency of operations. The determination is
limited to the controversy that gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Abington Constructors, Inc. are en-
titled to perform the installation of prefabricated large-
bore pipe, fabrication and installation of small-bore
pipe, and installation of processing equipment at the
waste-to-energy plant construction project in Preston,
Connecticut.
2. United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the
U.S. and Canada, Local Union No. 305, AFL–CIO is
not entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require Abington Constructors,
Inc. to assign the disputed work to employees rep-
resented by it.
3. Within 10 days from this date, United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the U.S. and Canada, Local
Union No. 305, AFL–CIO shall notify the Regional
Director for Region 34 in writing whether it will re-
frain from forcing Abington Constructors, Inc., by
means proscribed by Section 8(b)(4)(D), to assign the
disputed work in a manner inconsistent with this deter-
mination.