Plumbers Local 393 (Therma Corp.)

National Labor Relations Board - Board Decisions

Jul 15, 1991

303 N.L.R.B. 678 (N.L.R.B. 1991)

678
303 NLRB No. 105
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates refer to 1990 unless otherwise indicated.
Plumbers, Steamfitters & Refrigeration Fitters,
Local Union No. 393, United Association of
Journeymen & Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada and Therma Corporation and
Northern California District Council of Labor-
ers; Laborers International Union of North
America, Local 270. Case 32–CD–126
July 15, 1991
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed December 5, 1990, by the Therma Corp. (Therma
or the Employer) alleging that the Respondent, Plumb-
ers, Steamfitters & Refrigeration Fitters, Local Union
No. 393 (Plumbers), violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Employer
to assign certain work to employees it represents rather
than to employees represented by Laborers Inter-
national Union of North America, Local 270 (Labor-
ers). The hearing was held on January 17, February 7,
and March 6, 1991, before Hearing Officer Cynthia
Rence. Thereafter, all parties filed briefs in support of
their positions.
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, is engaged
in mechanical contracting with offices located in San
Jose, California. During the past calendar year, Therma
purchased and received goods valued in excess of
$50,000 directly from customers located outside the
State of California. The parties stipulate, and we find,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Plumbers and the Laborers are labor organizations
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
On June 15, 1990,1 Turner Construction Company
(Turner) subcontracted the plumbing and air-condi-
tioning work on its Ford Aerospace Building No. 38
project (the project) to Therma. Since October, Therma
has performed plumbing and air-conditioning work at
the project, including digging, backfilling, and tamping
of plumbing trenches. Therma has employed varying
numbers of plumbers and tradesmen at the project, and
these employees are represented by Plumbers. The cur-
rent contract between Therma and Plumbers is effec-
tive July 1, 1983, to June 30, 1995.
Therma has had a contract with Plumbers for about
20 years, and during that time period Therma has used
tradesmen from Plumbers to dig, backfill, and tamp
plumbing trenches on its jobsites. As specified in the
collective-bargaining agreement with Plumbers,
Therma uses tradesmen to do other tasks assisting the
journeymen plumbers when they are not digging, back-
filling, or tamping pipe trenches. Therma employs sev-
eral tradesmen who move between jobsites on an as-
needed basis, and who will at times work at more than
one jobsite during a day.
Therma has never employed workers from Laborers
District Council or Laborers Local 270 to dig, backfill,
and tamp plumbing trenches. In the past, on other
jobsites and on the project involved in this dispute,
Therma has sometimes subcontracted with companies
using employees represented by Operating Engineers
Local Union No. 3 of the International Union of Oper-
ating Engineers to perform the more substantial
digging and backfilling jobs, where heavy equipment is
required.
The contract between Therma and Plumbers is a
Master Labor Agreement between Plumbers and the
Santa Clara Valley Contractors Association, of which
Therma is a member. About 30 contractors in that as-
sociation currently employ tradesmen, and contractors
in the association do use tradesmen to dig, backfill,
and tamp plumbing trenches. These tasks have been
among the tasks performed by tradesmen represented
by Plumbers for at least 18 years.
On or about October 29, tradesmen and John Ro-
mero, the Therma plumbing foreman on the project,
were digging plumbing trenches on a section in the
middle of the building where two main sewer lines
come together. The digging was done using handtools,
i.e., compressors, jackhammers, and shovels. After the
tradesmen assisted Romero in placing the pipe in the
trenches, they then assisted him with backfilling and
tamping the trenches. The backfilling and tamping was
done using shovels, wheelbarrows, and a tamper called
a ‘‘whacker.’’ While the backfilling and tamping was
being done on this section of the project, a business
representative from Laborers visited the project and
asked Romero if he was a laborer. When Romero re-
sponded that he was a plumber, the business represent-
ative said the tamper and shovel were his tools and
Romero could not touch them, and that he would file
a grievance if Romero continued working. The busi-
ness representative, who was later identified to Romero
679PLUMBERS LOCAL 393 (THERMA CORP.)
2 In this connection, we reject the Laborers’ contention that Therma and the
Plumbers are seeking to ‘‘capture more work to which the [Plumbers are] not
entitled.’’
3 The hearing officer has referred to the Board another, earlier Laborers’
motion to quash that was made at the end of the hearing when it disclaimed
the work in dispute.
as Ray Turrey, also claimed the work on the project
and said that if plumbers did not stop doing the
digging and backfilling, ‘‘he was going to take action
against Therma, through [Turner] to get him removed
from the job.’’ Further, at a building trades council ex-
ecutive board meeting in October, a man introduced by
the executive secretary as Laborers President and dele-
gate Bob Hill, told Plumbers, ‘‘If you guys don’t stop
doing our work at the [project], we are going to pick-
et.’’
Therma continued to assign the backfilling and
tamping with shovels and whackers on the project to
Therma employees represented by Plumbers. On No-
vember 2, Laborers filed a grievance under the Labor-
ers District Council Master Agreement, claiming work
being done on the project by plumbers. The Laborers’
grievance was filed against both Therma and Turner.
After learning of the Laborers’ claim, Plumbers noti-
fied Therma by letter dated November 28, that if ‘‘as
a result of the claim to this work by Laborers . . . our
members lose this work, it is our intention to picket
to compel this work to be assigned’’ to employees rep-
resented by the Plumbers; the letter also asserted that
‘‘the work of digging, backfilling and tamping of pipe
trenches for the work allied to and in conjunction with
the piping systems installed at this project’’ is assigned
to employees represented by the Plumbers under its
labor contract with Therma. Therma continued to use
tradesmen to assist their plumbing foreman on the
project in digging, backfilling, and tamping; the
Plumbers did not picket.
On February 6, 1991, Laborers withdrew the griev-
ance filed against Therma, but continued to seek back-
pay from Turner under the Laborers District Council
Master Agreement for work done by Plumbers-rep-
resented employees. On February 6, 1991, an arbitrator
ruled that Turner violated subcontracting provisions in
the Master Agreement with the District Council by
using a subcontractor that did not use laborers to per-
form the work in question, but the arbitrator did not
prospectively award the disputed work to employees
represented by the Laborers.
Therma is bound to the District Council Master
Agreement on the project through its subcontracting
agreement with Turner. Both the Master Agreement
and the subcontracting agreement contain provisions
for voluntary dispute resolution. There is no provision
in Therma’s agreement with Plumbers, however, bind-
ing Therma to a voluntary dispute resolution procedure
for jurisdictional claims arising from a dispute with a
local union of a competing international union.
B. Work in Dispute
The notice of 10(k) hearing describes the work in
dispute as the backfilling and tamping of trenches.
Plumbers and Therma assert that the digging of trench-
es is also in dispute, as claimed by Plumbers in the
above-referenced letter of November 28. Prior to the
end of the hearing, Therma moved to expand the de-
scription of the work to include digging, and Laborers
objected, arguing that the notice of hearing did not in-
clude digging. Deferring the motion to the Board, the
hearing officer, over the Laborers’ objection, took evi-
dence bearing on digging and offered Laborers an op-
portunity to move for a continuance.
We have decided to grant Therma’s motion to ex-
pand the description of the disputed work to include
digging with hand tools, as described below. In grant-
ing the motion, we reject the Laborers’ contention that
the issue of digging was not litigated. We note that the
hearing officer agreed to hear testimony relating to
digging early in the hearing on February 7 and offered
Laborers a continuance if needed, and that, in fact, the
hearing was continued from February 7 to March 6.
Further, we find that the Plumbers’ November 28 letter
claims the digging work, thereby placing it in dispute.
The record reflects that digging plumbing trenches is
a substantial and integral part of the pipelaying work
performed by plumbers on the project,2 and as noted
earlier, that digging was accomplished by the plumbers
with compressors, jackhammers, and shovels. Hence,
we find that the issue of digging was in dispute and
that Laborers was afforded adequate notice of the dis-
pute.
Accordingly, we find that the disputed work in-
volves the digging of plumbing trenches using such
handtools as compressors, jackhammers, and shovels,
the backfilling of plumbing trenches after pipe has
been laid, and compacting the dirt placed in the trench-
es by use of a tamper or shovel, at Therma’s jobsite
at the Ford Aerospace Building No. 38 on Fabian Way
in Palo Alto, California.
C. Contentions of the Parties
As an initial matter, Laborers has moved to quash
the 10(k) notice of hearing on the ground that the dis-
pute is not properly before the Board.3 In support of
this motion, Laborers contends that this is not a juris-
dictional dispute but rather a separate and distinct con-
tract action that involves only it and Turner Construc-
tion Company; that it has engaged in no conduct which
would constitute an impermissible claim to the work in
question; that the grievance filed by the Laborers was
amended and withdrawn as to Therma Corporation;
and that all parties are bound to a plan for voluntary
settlement. Relying on Operating Engineers Local 139
(Allied Construction), 293 NLRB 604 (1989), Laborers
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 At the 10(k) hearing, the Laborers asserted that it disclaimed the work in
issue, citing the withdrawal of its grievance against Therma. In view of its
overall conduct and its retention of the grievance against Turner, we find its
‘‘disclaimer’’ to be a hollow gesture. See Electrical Workers IBEW Local 202
(W. B. Skinner, Inc.), 271 NLRB 171, 172–173 (1984). Chairman Stephens
agrees that the Laborers purported disclaimer was ineffective in view of its
earlier threat to picket and the fact that at the time of the hearing, there re-
mained disputed work to be done.
5 We also reject Laborers’ contention that the Plumbers’ threat to picket was
a sham. The evidence is insufficient to support that contention.
6 Chairman Stephens adheres to his dissent in Slattery, but finds the instant
case distinguishable because the Laborers’ conduct was not limited purely to
pursuit of contractual remedies, but also included a threat to picket if it did
not obtain the disputed work. In this connection, he deems it immaterial that
the threat was made to a business representative of Plumbers rather than to
a representative of Therma or Turner. The threat indicated that Laborers at one
time publically threatened taking coercive action within the meaning of Sec.
8(b)(4)(D) to obtain the work in dispute. That fact suffices to establish a basis
for finding that a competing claim for the work was made by Laborers.
7 See, e.g., Operating Engineers Local 3 (Hawaiian Dredging), 297 NLRB
953 (1990).
8 In view of our findings, we deny the Laborers’ motion to quash the notice
of 10(k) hearing.
asserts that Plumbers and Laborers, by virtue of their
respective International affiliations, are both affiliated
with the AFL–CIO Building & Construction Trades
Department, and are thereby bound to an agreed-on
method of dispute resolution of jurisdictional disputes
in the construction industry.
Therma and Plumbers contend that this is a tradi-
tional jurisdictional dispute and that reasonable cause
exists to find that Section 8(b)(4)(D) has been violated.
They argue that Laborers, after learning of the work
assignment, made threats through a business agent to
a business agent of Plumbers, and that Laborers there-
after filed a grievance against both Turner and Therma,
to which Plumbers responded with a threat to picket if
the assignment of the work were changed. Therma and
Plumbers further contend that Laborers’ decision to
drop Therma from the grievance and disclaim the work
was merely a tactical decision and that, in fact, through
the arbitration proceeding, Laborers continues to claim
the work by demanding payment for the work in ques-
tion. Both also claim that no agreed-on method exists
for the voluntary resolution of the dispute between the
parties.
As to the merits of the dispute, Therma and Plumb-
ers contend that the disputed work should be awarded
to employees represented by Plumbers on the basis of
employer preference, collective-bargaining agreements,
economy and efficiency of operations, safety, area
practice, and relative skills and training. Laborers con-
tends that the factors of collective-bargaining agree-
ments and efficiency and economy support an award of
the disputed work to employees it represents.
D. Applicability of the Statute
Before the National Labor Relations Board may pro-
ceed with a determination of the dispute pursuant to
Section 10(k), it must be satisfied that reasonable
cause exists to believe that Section 8(b)(4)(D) has been
violated and that the parties have not agreed on a
method for the voluntary settlement of their dispute.
As noted above, Laborers, inter alia, threatened to
file a grievance if the employees represented by the
Plumbers did not stop doing work which they were
doing, and subsequently the Laborers filed such a
grievance. In addition, after learning that the Laborers
was making a claim to the work, Plumbers sent a letter
to Therma threatening to picket if the work were with-
drawn from its employees. Laborers contends there are
no competing claims, however, because its grievance
does not constitute a claim for the work.4 We reject
this contention.5 Contrary to the claim of Laborers, we
find that Laborers Local 731 (Slattery Associates), 298
NLRB 787 (1990), in which the Board reaffirmed that
a union’s pre-10(k) grievance constitutes an active
claim for the work in dispute, is directly on point with
the instant case.6
We reject the Laborers’ assertion that there is an
agreement binding all parties to a voluntary method for
resolving jurisdictional disputes. Laborers alludes to a
method of resolution that purportedly is binding on all
affiliate AFL–CIO Building & Construction Trades
unions, but provides no documentation to support the
existence, viability, or coverage of this asserted method
of resolution.7 The contracts in evidence show that
Turner’s collective-bargaining agreement with Laborers
provides a jurisdictional dispute mechanism and that
Therma is bound to that agreement by virtue of its
subcontract with Turner. However, Plumbers is not a
signatory to either agreement, and the collective-bar-
gaining agreement between Therma and Plumbers does
not provide for the submission of non-Plumbers juris-
dictional disputes to private dispute resolution. Since
the Act requires that all parties must be bound, we
find that no such agreement exists.
Based on our findings above, we find reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred and that there exists no agreed-on method
for voluntary 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.8
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).
681PLUMBERS LOCAL 393 (THERMA CORP.)
9 See Laborers Local 223 (Anastasi Bros.), 272 NLRB 860, 862 (1984).
10 The record shows that Therma entered into a collective-bargaining agree-
ment with Laborers for a particular short-term project which has since ended.
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining
agreements
No party claims there are certifications applicable to
the work in dispute. The type of work in dispute is en-
compassed by the 1989–1993 Laborers’ Master Agree-
ment between Associated General Contractors of Cali-
fornia, Inc., of which Turner is a member, and the
Northern California District Council of Laborers. It is
also encompassed by the 1983–1995 Master Labor
Agreement between Plumbers Local 393 and the Santa
Clara Valley Contractors Association, of which
Therma is a member. However, Therma, as the sub-
contractor that assigned the disputed work, is the em-
ployer for purposes of determining an award in this
case.9 Because Plumbers has a collective-bargaining
agreement with Therma covering the disputed work,
and because Laborers does not have such a contract
with Therma,10 we find that this factor favors an
award of the disputed work to employees represented
by Plumbers.
2. The Employer’s preference and past practice
Therma assigned the disputed work to Plumbers-rep-
resented employees and has invariably used such em-
ployees for two decades to perform such work. Ac-
cordingly, these factors favor an award to employees
represented by Plumbers.
3. Area practice
The only evidence of area practice was given by
Lloyd Williams, business representative for Plumbers,
who testified that it was the practice of employers in
the area to use plumbers tradesmen to dig, backfill,
tamp, and do other tradesmen work. This evidence fa-
vors an award to employees represented by Plumbers.
4. Relative skills, safety, and economy and
efficiency of operations
Therma president, Joseph Parisi, testified that the
plumbers have the skill necessary to perform the work
in a safe and efficient fashion. Plumbers Foreman John
Romero testified that plumbing tradesmen are skilled
at filling trenches to specification to support pipe
grade. Parisi further testified that employer efficiency
is achieved because the employees represented by
Plumbers can work with pipe, deliver pipe, and can be
given various productive assignments when they are
not performing digging, backfilling, and tamping. The
Laborers presented no evidence concerning skills, but
no one has established that the laborers cannot perform
the disputed work. Although the skills of the laborers
and plumbers tradesmen may be equal insofar as
digging and backfilling trenches, the Employer is able
to continuously work the plumbing tradesmen, without
intermittent layoffs. This adds substantially to the Em-
ployer’s efficiency and economy. Although the labor-
ers point out that their wage rate is lower and that they
can be assigned to work periods of as little as 4 hours,
we find that the factors of efficiency and economy
favor awarding the disputed work to employees rep-
resented by Plumbers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Plumbers are enti-
tled to perform the work in dispute. We reach this con-
clusion relying on the collective-bargaining agree-
ments, employer preference, employer and area prac-
tice, and economy and efficiency of operations. In
making this determination, we are awarding the work
to employees represented by Plumbers Local 393, 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 represented by Plumbers, Steamfitters &
Refrigeration Fitters, Local Union No. 393 are entitled
to perform the digging of plumbing trenches using
handtools, such as compressors, jackhammers, and
shovels, the backfilling of plumbing trenches after pipe
has been laid, and compacting the dirt placed in the
trenches by use of a tamper or shovel at the Therma
jobsite at the Ford Aerospace Building No. 38, Fabian
Way, Palo Alto, California.