Plumbers & Steamfitters Local 189

National Labor Relations Board - Board DecisionsMar 10, 1981

254 N.L.R.B. 1222 (N.L.R.B. 1981)

1122 arrd l q k ) 8(b)(4)(D) AFL- 1 1980.' job- 2(6) events 11. Plurnb- 2(5) Ill. -sewage infer ' hand- graded en- DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers and Steamfitters Local Union No. 189, United Association of Journeymen and Appren- tices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO Davis-McKee, Inc. and Laborers' Interna- tional Union of North America, Local No. 423, AFL-CIO-CLC. Case 9-CD-383 March 10, 1981 DECISION AND DETERMINATION O F DISPUTE This is a proceeding under Section of the National Labor Relations Act, as amended, follow- ing a charge filed by Davis-McKee, Inc., herein called the Employer, alleging that Plumbers and Steamfitters Local Union No. 189, United Associ- ation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, herein called the Plumbers, had violated Section of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represented by Laborers' International Union of North America, Local No. 423, CIO-CLC, herein called the Laborers. Pursuant to notice, a hearing was held before Hearing Officer Andrew Lang on July 24, 25, 29, and 31, and on August 2 and 22, All parties appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross-exam- ine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer and the La- borers filed briefs. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds them free from prejudicial error. The rulings are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, an Ohio corporation with a principal place of business in Columbus, Ohio, is engaged in con- struction work and, on an annual basis, purchases and receives goods and materials valued in excess of $50,000, which are shipped directly to its sites within the State of Ohio from suppliers locat- ed outside the State of Ohio. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. All occurred in 1980 unless otherwise indicated. 254 NLRB No. 151 THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that ers Local 189 and Laborers Local 423 are labor or- ganizations within the meaning of Section of the Act. T H E DISPUTE A. Background and Facts of the Dispute The Employer is a construction contactor en- gaged primarily in public works projects in the Central Ohio area. The Employer is a member of the Ohio Contractors Association, Labor Relations Division, a multiemployer bargaining association that negotiates labor agreements on behalf of em- ployers engaged in heavy, highway, municipal, and utility construction, including such public projects as roads, airports, water treatment and facilities, power plants, refuse-disposal facilities, and sewer and waterline installation. The Employ- er is a party to a collective-bargaining agreement with, alia, Laborers Local 423. It has never bargained with Plumbers Local 189 or employed workers represented by that Union. Prior to the events giving rise to this dispute, the Employer subcontracted with B. G. Danis Compa- ny to install sheet piling and circulating water pipe at the Refuse and Coal Fired Municipal Electric Plant project site in Columbus, Ohio, for which B. G. Danis Company holds the boiler and turbine foundation contract. The Employer's work on the project consists of excavating and backfilling the foundations, excavating the grounding system, driving cast-in-place concrete piles, and installing circulating water pipe for cooling at the municipal project. The work here in dispute involves the cir- culating water pipe, which is between 84 and 30 inches in diameter, weighs up to 14 tons, and is 40 to 50 feet long. The pipe is prefabricated in Kansas City and shipped to the construction site, where it is unloaded by cranes and placed in the storage yard. Trenches are excavated, bedded, and to receive the piping, which is lowered into the prepared trenches by crane and adjusted by hand to fit against the adjacent segment of pipe. The piping is stabilized by backfilling, and the seg- ments of pipe are joined by a slip joint that in- cludes a fillet weld seal. The Employer uses em- ployees represented by the Operating Engineers to operate the equipment on the project and employ- ees represented by Laborers to perform the remain- der of the work, including the fitting and welding of the segments of piping. All work on the project, including the work in dispute, is subject to prevailing wages established by the Ohio Revised Code, as administered and 189 paid.2 jobsite. & 8(b)(4)(D) Davis-McKee's 100 1q1) reso- Ir jobsite Ohio.3 schedule PLUMBERS AND STEAMFITTERS LOCAL UNION NO. 1223 forced by the Ohio Department of lndustrial Rela- tions. Before the Employer began the work in dis- pute, Respondent requested the Department of In- dustrial Relations to declare the job subject to the code's building and construction wage structure rather than to the heavy and highway wage struc- ture under which the Employer's employees are currently being The initial shipment of pipe arrived at the con- struction site on or about May 21, 1980, and instal- lation work began early in June. On June 5, the Employer and B. G. Danis Company received a letter from the Impartial Jurisdictional Disputes Board for the Construction Industry advising them of a jurisdictional dispute between Plumbers and Laborers over the unloading, handling, distribution, and installation of cooling water piping on the pro- ject. The Employer responded that it was not bound by an award of the Impartial Jurisdictional Disputes Board and would not participate in dis- pute resolution before that tribunal. On June 20, the Impartial Jurisdictional Disputes Board in- formed the Employer that it had awarded the work of unloading, handling, distributing, and installing the cooling water pipe to Plumbers Local 189. On or about June 26, Respondent's business agent, Dudley Steiner, visited Robert Meyer, pro- ject manager for B. G. Danis, at the Steiner asked Meyer what he intended to do about the Im- partial Jurisdictional Disputes Board award; Meyer responded that B. G. Danis had nothing to do with the matter since it had subcontracted the work to Davis-McKee. Steiner said he did not know what action Respondent would take. On June 30, Respondent posted pickets at all en- trances to the construction site. The picket signs read, "Davis-McKee, Inc. Unfair to Local 189 Plumbers Steamfitters" and "Good Union Men Don't Cross Picket Lines." No work was per- formed on the project on June 30, as all employees refused to cross the picket lines. On June 30 the Employer filed charges with the Board alleging that Respondent was engaging in conduct prohibit- ed in Section of the Act. employees worked on July 1 de- spite continued picketing by Respondent, although the employees of other contractors on the project again refused to cross the picket lines. On July 2 Respondent engaged in mass picketing by over men, and no employees reported for work on the construction site. On July 3 Davis-McKee sought and obtained a state court order limiting the number of pickets permitted on the project. The Department of Industrial Relations has not found the Employer in violation of the statutory wage requirements. We observe that the rates paid to laborers under the heavy and highway are higher than those paid under the building and construction schedule. On July 7 the picket signs were changed to read "Davis-McKee Not Paying Appropriate Building Trades Prevailing Wages for Installation of Tur- bine Cooling Water Piping at Columbus Power Plant." Picketing continued, and on July 16, after the Regional Director for Region 9 had filed a pe- tition in a Federal district court for an injunction pursuant to Section of the Act, the parties met with the court; thereafter Respondent, by letter to the Board, disclaimed the work in dispute but announced its intention to recommence picket- ing at the project to protest the Employer's alleged failure to pay prevailing wages as required by the Department of Industrial Relations of the State of Ohio. By letter dated July 18, the Employer advised Respondent that it was paying prevailing wages as required and had not been found in violation of state prevailing wage schedules by the Department of Industrial Relations. The letter further informed Respondent that Davis-McKee had established re- served gates at the construction site. Nevertheless, Respondent recommended picketing in the employ- ee parking lot approximately 150 feet from the Davis-McKee gate. Because all employees working on the project were required to use the parking lot, many employees other than those employed by Davis-McKee continued to refuse to report for work. On July 24, 1980, the Federal District Judge issued a temporary restraining order barring all picketing by Respondent. At the expiration of the restraining order on August 5, Respondent resumed picketing as before until a preliminary injunction was entered against it on August 14, pending lution of the dispute by the Board. Pursuant to the preliminary injunction, the work in dispute is pres- ently being performed by employees represented by Laborers Local 423. B. The Work in Dispute The work here in dispute involves the unloading, handling, distribution, and installation of cooling water piping for turbines at the Refuse and Coal Fired Municipal Electric Plant project at Columbus, C. Contentions of the Parties The Employer contends that the Board should award the work in dispute to its employees, who are represented by Laborers Local 423, based on its collective-bargaining agreement with that Respondent does not claim that portion of the work being performed by operating engineers, who operate the cranes used to unload the piping, transport it to the excavation area, and lower it into the prepared trenches. jobsite. 10(k) 8(b)(4)(D) jobsite Davis-McKee jobsite. jobsite; Davis-McKee l q k ) "[p]lumbers 8(b)(4)(D) Act.* International 571. (J.E.D. Inc.), (Rmky Inc.), ( 1 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union; employer and area practice; relative skills; economy and efficiency; and employer preference. The Employer also argues that it is not bound by determinations of the Impartial Jurisdictional Dis- putes Board and that the decision of that tribunal should be accorded no weight in this proceeding because it fails to state reasons for awarding the work to employees represented by Plumbers Local 189. Laborers' Local 423 takes the position that the work in dispute should be awarded to employees whom it represents based on employer preference; company and industry practice; relative skills; and efficiency and economy of operations. In addition Laborers contends that it was not bound by the de- cision of the Impartial Jurisdictional Disputes Board and did not participate in the hearing held before that board. At the hearing, Plumbers Local 189 maintained that no jurisdictional dispute exists because it has effectively disclaimed the work in dispute and that the sole purpose of its picketing has been to main- tain area standards by ensuring that prevailing wage rates were paid on the In the alterna- tive, Respondent contends that the work in dispute should be awarded to employees whom it repre- sents based on industry practice and the factor of relative skills. D. Applicability of the Statute Before the Board may proceed with the determi- nation of a dispute pursuant to Section of the Act, it must be satisfied that there is reasonable cause to believe that Section has been violated and that the parties have not agreed upon a method for the voluntary adjustment of this dis- pute. The record discloses that Respondent began picketing the on June 30 and continued picketing thereafter until restrained by an order of the United States District Court for the Southern District of Ohio. Respondent's activity included mass picketing, and its picketing was not confined to the reserve entrances established by the Employ- er. As a result of Respondent's picketing, work stoppages occurred not only among the employees of but also among the employees of other contractors at the Respondent does not dispute that its activity re- sulted in work stoppage at the it maintains, however, that the object of the picketing was not to force an assignment of work to employees whom it represented but was instead a protest against the Employer's failure to pay prevailing wages as required by the State of Ohio. Respond- ent does not deny that the dispute before us origi- nated as a jurisdictional dispute; the record clearly establishes that Respondent initiated proceedings before the Impartial Jurisdictional Disputes Board by claiming the work here in dispute, secured a fa- vorable award, and, when the project manager of B. G. Danis declined to require to reassign the work, commenced picketing at the construction project on June 30. Respondent con- tends, however, that on or about July 7 its object changed; that on or about July 16 it effectively dis- claimed the work by letter to the Regional Direc- tor for Region 9; and that picketing thereafter was merely an exercise of its right to protest the Em- ployer's refusal to pay prevailing wages. We reject Respondent's contention; we find that Respondent has failed to demonstrate that it at any time abandoned its jurisdictional claim to the work in dispute. The record establishes that the Employ- er pays its emloyees who are represented by La- borers Local 423 according to the wage structure mandated by the State of Ohio for heavy and high- way construction. The heavy and highway sched- ule contains no plumbers' classification, but the rate paid to laborers under the heavy and highway schedule is higher than that paid to laborers under the building and construction schedule. Respond- ent's object in complaining to the Industrial Rela- tions Department of the State of Ohio was to re- quire the Employer to pay its employees according to the plumbers' rates established by the building and construction schedule, an object premised on the assumption that the installation of cooling water pipes is plumbers' work. Moreover, in spite of its disclaimer to the Board, the testimony of Respondent's witnesses at the hearing clearly indicates that Respondent continues to claim the work in dispute. Respond- ent's agent, Steiner, testified that tradi- tionally claim the type of work in this case," that "Plumbers and Pipefitters have been claiming piping work throughout the history of this coun- try," and that he wanted the Employer's laborers to be paid at plumbers' rates because he considered the work to be plumbers' work. Accordingly, we find from an examination of Respondent's entire course of conduct that an object of its picketing was at all times to force or require the Employer to assign the work in dispute to employees represented by Respondent and that its purported disclaimer was therefore ineffective to remove its subsequent activity from the stric- tures of Section of the See Union of Operating Engineers Local AFL-CIO Construction Company, 237 NLRB 1386 (1978); Cement Masons Local Union No. 597 Mountain Prestress, 233 NLRB 923 977). I225 8(b)(4)(D) 10(k) 10(k) 10(k) factors7 collective- lJDB lJDB parte. & Broadcast 1212, Brotherhocd Bmodcasting Na (J. laborer^.^ ~ - allo- & Steamfitrers & (R. W. Ine), PLUMBERS AND STEAMFITTERS LOCAL UNION NO. 189 In the context of a jurisdictional dispute, the 2. Employer and area practice Board need not find that a violation did in fact occur, but only that there is reasonable cause to be- lieve that there has been a violation. Based on the record as a whole, we find that there is reasonable cause to believe that Plumbers Local 189 violated Section of the Act. We further find that there is no agreed-upon method to which all par- ties are bound for the voluntary adjustment of this dispute within the meaning of Section of the Accordingly, we find that this dispute is properly before the Board for determination under Section of the Act. E. Merits of the Dispute Section of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant fac- t o r ~ . ~The Board considers that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience in weighing those The following factors are relevant in re- solving the dispute before us: 1. Certification and collective-bargaining agreements Neither of the labor organizations involved in this dispute has been certified by the Board as the exclusive collective-bargaining representative of the Employer's employees in the appropriate unit. However, the Employer and the Laborers maintain a collective-bargaining relationship and are present- ly parties to a contract that covers the employees who have been performing the work in dispute. Both Laborers and the Employer agree that the work in dispute is specifically covered by the Heavy-Highway-Municipal-Utility Agreement to which they are parties. The Employer has no em- ployees represented by Plumbers and has never had a collective-bargaining agreement with that Union. Accordingly, we find that the contractual relationship between the Employer and Laborers weighs in favor of assigning the disputed work to employees represented by Laborers. No party contends that the Employer is bound through its bargaining agreement, or otherwise. to honor the award of the Impartial Jurisdictional Disputes Board. In this regard, w e note further that neither the Employer nor Laborers Local 423 participated in the June hearing before the and that the decision of the was for that reason issued ex Under the circumstances, therefore, in assessing the merits of this dispute. w e shall give no weight to the award of work made by the IJDB. N.L.R.B. v. Radio Television Engineers Union. Local International of Electrical Workers, AFL-CIO [Colum- bia System], 364 U.S. 573, 579 (1961). International Association of Machinists. Lodge 1743, AFL-CIO A. Jones Construction Company), 135 NLRB 1402 (1962). The Employer has never before had occasion to install process piping for turbines as no such work has been required in the past by the public agencies with whom the Employer does business. The Em- ployer has, however, performed similar work in- volving the installation of process piping in water sewage plants, waterlines, sewage lines, sewage treatment plants, and storm sewers. In all such op- erations, including those which, as here, require welding of the joints of pipe segments, the Em- ployer has consistently used employees represented by Laborers. In addition, the Employer introduced testimony that four other construction companies in the Cen- tral Ohio area also use employees represented by Laborers to perform work similar to the work here in dispute. At least one other company has used la- borers to perform welding in connection with the installation of process piping. The Employer has also demonstrated that when a similar jurisdictional dispute occurred in the past between an employer in the Ohio area and the two unions involved in this proceeding, the Board awarded the work to employees represented by Respondent introduced substantial testimony that similar work in the Ohio area, particularly that re- quiring welding operations, is usually assigned to employees represented by Respondent. According- ly, we find that while company practice favors an award of the work in dispute to employees repre- sented by Laborers, the factor of area practice is inconclusive and does not support an award of the work to employees represented by either Union. 3. Relative skills. economv. and efficiencv .. The record establishes that the Employer's labor- ers have the requisite skill to perform all phases of the work in dispute. Specifically, the welders used by the Employer on the project must, under the project specifications, be certified by the American Welding Association as qualified to perform certain welding techniques. The Employer's laborers have been so certified. and the citv service director and project coordinator, who inspect the welding done on the construction site, testified that the welds done by the Employer's laborers were satisfactory. Furthermore, the Employer testified without con- tradiction that assignment of the work in dispute to laborers is the most economical and efficient See Plumbers Local Union No. 189, United Association of Journeymen Apprentices of The Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO Wander. NLRB 935 (1969). 176 job- proceed- ing.g l q k ) 1. AFL- jobsite & 8(b)(4)(D) 8(b)(4)(D) other Iqk) Pipefitting Inc.). 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cation, since laborers also perform hand-tapping, grading, and backfilling to stabilize the piping in the trenches, work not claimed by Plumbers. The Employer contends that assignment of the work in dispute to Plumbers would, therefore, result in fragmentation of the job into separate operations and much idle time for each group. Respondent introduced uncontradicted evidence that the employees whom it represents possess the skills necessary to perform the work in dispute. Accordingly, we find that the factor of relative skills does not support an assignment of the work in dispute to employees represented by either Union but that the factors of economy and efficien- cy of operations support assignment of the work to employees represented by Laborers. 4. Employer assignment and preference The Employer has for a substantial period of time assigned work similar to the disputed work to its Laborers-represented employees and has indicat- ed that it is satisfied with their performance and wishes for them to continue to unload, handle, dis- tribute, and install cooling water piping on the site. Thus the factors of Employer assignment and preference favor awarding the disputed work to employees represented by Laborers. Conclusions Upon the record as a whole, and after full con- sideration of the relevant factors, we conclude that the Employer's employees who are represented by Laborers Local 423 are entitled to perform the work in dispute. We reach this conclusion because the Employer's assignment of the work in dispute to its laborers is consistent with its preference, past practice, and collective-bargaining relationship with Laborers Local 423; because the employees represented by Laborers Local 423 possess the skills necessary to perform the work; and because assignment to employees represented by Laborers promotes efficiency and economy of operation. We shall therefore award the work in dispute to those employees of the Employer represented by Labor- ers Local 423, but not to that Union or its mem- bers. Our present determination is limited to the particular dispute that gave rise to this DETERMINATION O F DISPUTE Pursuant to Section of the National Labor Relations Act, as amended, and upon the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the fol- lowing Determination of Dispute: Employees of Davis-McKee, Inc., who are currently represented by Laborers' International Union of North America, Local No. 423, CIO-CLC, are entitled to perform the unloading, handling, distribution, and installation of cooling water piping required by the Employer's construc- tion contract at the Refuse and Coal Fired Munici- pal Electric Plant project in Columbus, Ohio. 2. Plumbers Steamfitters, Local Union No. 189, United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, is not entitled by means proscribed by Section of the Act to force or require Davis-McKee, Inc., to assign the disputed work to employees repre- sented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Plumbers and Steamfitters, Local Union No. 189, United Associ- ation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, shall notify the Re- gional Director for Region 9, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section of the Act, to assign the disputed work in a manner inconsistent with this determination. The Employer has requested that our assignment of work in this pro- ceeding extend to all employees performing similar work on the con- struction site. As the Employer has introduced no evidence that similar disputes may occur in the future, w e conclude that it is not advisable to issue an order involving employers who have not been served or given notice of this proceeding and who have not had an opportu- nity to participate or give evidence. See United Association of Journeymen and Apprentices of the Plumbing and Industry of the United States and Canada, Local Union No. 345 (Acme Sprinkler Company. 210 NLRB 22, 25 (1974).