Plumbers Local 355 (ARB, Inc.)

National Labor Relations Board - Board Decisions

Dec 11, 1992

309 N.L.R.B. 814 (N.L.R.B. 1992)

814
309 NLRB No. 128
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1992 unless otherwise noted.
2 Testimonial evidence in the record established that Teamsters
Local 87 has a collective-bargaining agreement with the Employer
covering certain classifications of truckdrivers, but the actual collec-
tive-bargaining agreement between the Employer and Teamsters
Local 87 was not introduced. Teamsters Local 87 offered no evi-
dence at the hearing.
United Association of Journeymen & Apprentices of
the Plumbing & Pipe Fitting Industry of the
United States & Canada, Underground &
Utilities/Landscape, Local 355, AFL–CIO and
ARB, Inc. and International Brotherhood of
Teamsters, AFL–CIO, Local 87. Case 31–CD–
342
December 11, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed July 29, 1992,1 by the Employer, ARB, Inc., al-
leging that the Respondent, United Association of
Journeymen & Apprentices of the Plumbing & Pipe
Fitting Industry, Local 355 (Plumbers Local 355) 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 employees
represented by Teamsters Local 87. The hearing was
held on September 9, before Hearing Officer Norman
L. McCracken. Thereafter, the Employer filed a brief
in support of its position.
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 California corporation located in
Bakersfield (Kern County), California, is engaged in
pipeline utility underground construction. During the
12 months preceding the hearing it purchased and re-
ceived goods and materials valued in excess of
$50,000 directly from points outside the State of Cali-
fornia. The parties stipulate, and we find, that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that UA Local 355
and Teamsters Local 87 are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
For the past 3 years, the Employer has performed
‘‘patch paving’’ and ‘‘gas distribution’’ work for util-
ity companies pursuant to a master underground utili-
ties collective-bargaining agreement executed with UA
Local 355 in 1989.2 The Employer utilizes three- to
five-man crews composed of a journeyman and several
assistant journeymen represented by UA Local 355, to
install, repair, and replace plastic, natural gas pipelines
pursuant to contracts with public utility companies.
Crews performing ‘‘patch paving’’ work drive to
customer worksites, set up traffic control, break up
temporary asphalt patchwork with picks and shovels,
load the old asphalt into the back of a dumptruck, and
place new asphalt in the ground. A crewmember drives
a 2-ton dumptruck that carries a load of hot asphalt,
purchased from an independent batch plant, to various
jobsites. The driver hauls the broken-up temporary as-
phalt back to the batch plant for recycling after the
permanent repair is completed. Crews performing ‘‘gas
distribution’’ work drive to the customer’s site, install
or repair plastic pipe and utility service lines, and back
fill the ditch. These crewmembers perform plastic fu-
sion and welding tasks.
The driver on the ‘‘patch paving’’ crew drives the
dumptruck between 1 and 1-1/2 hours per day. The
driver on the gas distribution crew drives a truck be-
tween one-half hour and 1 hour per day. When not
driving, the drivers work with other crewmembers to
perform the asphalt removal or gas distribution work.
A Class B drivers license is required to perform the
driving work.
The present dispute began on March 3 when Team-
sters Local 87 business representative, Ward Allen,
wrote the Employer’s vice president and chief oper-
ations officer, Scott Summers, about laborers and
plumbers performing alleged Teamsters work. Allen
requested an immediate meeting to resolve the jurisdic-
tional problem. On March 12, Summers wrote Allen
requesting clarification of the jobs that Allen was re-
ferring to. On July 23, Allen sent Summers a memo-
randum stating that Teamsters Local 87 President Glen
Kelley had observed Plumbers Local 355 crewmember
Allen Martinez driving a dumptruck. Allen asserted,
‘‘This is clearly Teamster work!’’ Allen advised Sum-
mers to regard the memo as a ‘‘NOTIFICATION OF
GRIEVANCE.’’ Allen also asked to inspect applicable
payroll records and he requested a meeting to resolve
the grievance expeditiously.
On July 27, Kelley wrote Summers formally re-
questing the names, dates, and hours of any employee,
other than a Local 87 member, performing traditional
Teamsters work. Kelley also advised Summers that the
Employer was in breach of the collective-bargaining
agreement by using non-Teamsters-represented em-
815PLUMBERS LOCAL 355 (ARB, INC.)
ployees to perform bargaining unit work. Kelley re-
quested a response by July 29. Otherwise, Kelley ad-
vised, unfair labor practice charges would be filed.
On July 28, the Employer wrote Plumbers Local 355
enclosing copies of the written demands for the work
in dispute received from Teamsters Local 87. The Em-
ployer requested Plumbers Local 355’s position regard-
ing the reassignment of driving work related to under-
ground utility work. Also, on July 28, Plumbers Local
355 informed the Employer, inter alia, that it ‘‘would
take economic action, if necessary, against your Com-
pany, including strikes and picketing, if this work is
reassigned to anyone else.’’
B. Work in Dispute
The work in dispute involves driving tasks related to
underground utility work.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that Plumbers Local 355 violated Sec-
tion 8(b)(4)(D) of the Act, and that the factors of col-
lective-bargaining agreements, employer preference
and practice, economy and efficiency of operations,
specialized skills, and area and industry practice favor
a jurisdictional award to employees represented by
Plumbers Local 355. Neither Plumbers Local 355 nor
Teamsters Local 87 filed a brief or advanced a posi-
tion.
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 set forth above, on July 28, Plumbers Local 355
threatened the Employer that any change in the assign-
ment of the work in dispute would result in it striking
and picketing the Employer. We find that there is rea-
sonable cause to believe that Section 8(b)(4)(D) has
been violated and that there is no voluntary method for
resolving the jurisdictional dispute. Accordingly, we
find that this 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 of 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).
The following factors are relevant in making the de-
termination of this dispute.
1. Certification and collective-bargaining
agreements
There is no evidence of any Board certification of
a representative of any of the employees involved.
The current collective-bargaining agreement between
the Employer and Plumbers Local 355 provides that
the agreement covers all utility and utility pipeline
construction work of every kind and description, in-
cluding work allied directly thereto. The Employer
construes the agreement to cover all driving related to
underground utility work on the ground that the crews
must drive to the sites to perform the work. The Em-
ployer argues that the agreement contemplates that
Plumbers-represented employees performing under-
ground utility work also perform incidental driving
tasks by requiring that ‘‘trucks used in connection with
work covered by this Agreement’’ shall be perma-
nently marked with the Employer’s name and ‘‘driven
by a competent driver who shall be paid at his prevail-
ing wage rate.’’
The Employer’s chief operations officer, Scott Sum-
mers, testified that, although the Employer has a con-
tract with Teamsters Local 87 and employs Teamsters
as watertruck drivers, low bed drivers, pipetruck driv-
ers, and field truckdrivers, no Teamsters are employed
to perform any underground utility work. The Employ-
er’s president, Brian Pratt, testified that he is not aware
of any specific provision in the Teamsters contract
which covers underground utility work. As noted, no
collective-bargaining agreement between the Employer
and Teamsters Local 87 was adduced as evidence.
We conclude that the factor of collective-bargaining
agreements favors an award of the work in dispute to
employees represented by Plumbers Local 355.
2. Employer preference and past practice
The Employer’s past practice has been to assign the
underground utility work to employees represented by
Plumbers Local 355. President Pratt testified that the
Employer prefers to continue this work assignment.
We find that the Employer’s past practice and
present preference favor an award of the work to em-
ployees represented by Plumbers Local 355.
3. Relative skills and economy and efficiency
of operations
Plumbers Local 355-represented employees are spe-
cially trained in the installation of plastic pipe. They
have received 4 to 6 months of certified apprenticeship
school training that is necessary to perform rudi-
mentary fusions, tapings, weldings, and pinchings.
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Economy and efficiency of operations would be re-
duced by the need to train a Teamsters driver in plastic
fusions and welding operations. This would take about
6 months. Employer President Pratt estimated that the
Teamsters lack of apprenticeship school training would
reduce production per man hour and decrease produc-
tivity 20 to 25 percent per dollar of piping installed.
Summers, the Employer’s chief operations officer, esti-
mated that the learning curve and training time deficits
incurred from employing a Teamster driver would re-
duce crew efficiency by about 15 percent.
Pratt further testified that if the teamster performed
only driving duties, he would spend approximately 30
minutes a day working, 15 minutes a day getting to his
job, and 15 minutes a day getting back to the yard.
The worker would be unproductive during the piping
phases of the work. By contrast, the versatility of the
Plumbers Local 355-represented crewmembers, and
their experience in working together on stable crews
with low turnover promote the efficiency and speed of
completing work tasks.
There is no evidence that it would be as efficient or
economical to use Teamsters Local 87-represented em-
ployees to perform the disputed work. Therefore, we
find that the factor of relative skills, economy and effi-
ciency of operations favors an award to employees rep-
resented by Plumbers Local 355.
4. Area and industry practice
Employer witnesses testified that the practice of em-
ployers in the area and industry has been to assign the
work in dispute to employees represented by Plumbers
Local 355. The Employer’s president, Brian Pratt, tes-
tified that two area competitors, W. M. Wiles Co. and
West Valley, use Plumbers Local 355 represented em-
ployees to perform underground utility work and relat-
ed driving tasks, and do not use Teamsters Local 87
represented employees to perform any kind of under-
ground utility work, including driving. Plumbers Local
355’s business representative, Dennis Soares, testified
that an estimated 16 industry contractors are signatory
to the Master Underground Utility Agreement with
Plumbers Local 355.
We find that the factors of area and industry practice
favor an award of the work in dispute to employees
represented by Plumbers Local 355.
Conclusions
After considering all the relevant factors, we con-
clude that the employees represented by Plumbers
Local 355 are entitled to perform the work in dispute.
We reach this conclusion relying on the factors of col-
lective-bargaining agreements, employer preference
and past practice, relative skills, economy and effi-
ciency of operations, and area and industry practice. In
making this determination, we are awarding the work
to employees represented by Plumbers Local 355, not
to that Union or its members. 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.
Employees of ARB, Inc., represented by United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States
and Canada, Underground and Utilities/Landscape,
Local 355, AFL–CIO, are entitled to perform all driv-
ing tasks related to the Employer’s underground utility
work.