Plumbers & Steamfitters Local Union No. 189

National Labor Relations Board - Board Decisions

Jun 23, 1969

176 N.L.R.B. 935 (N.L.R.B. 1969)

PLUMBERS & STEAMFITTERS LOCAL UNION NO. 189
Plumbers & Steamfitters Local Union No. 189,
United Association of Journeymen & Apprentices
of The Plumbing and Pipe Fitting Industry of The
United States and Canada, AFL-CIO and R. W.
Wander , Inc. and Local 423, Laborers'
International Union of North America , AFL-CIO.
Case 9-CD-143
June 23, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN, AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following a charge filed by R. W. Wander, Inc.,
hereinafter called Wander or Employer, alleging
that Plumbers & Steamfitters Local Union No. 189,
United Association of Journeymen & Apprentices of
the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, hereinafter
called Plumbers, had violated Section 8(b)(4)(D) of
the Act. A hearing was held pursuant to notice at
Columbus, Ohio, on December 17 and 18, 1968,
before Hearing Officer William C. Mittendorf. The
Employer, the Plumbers, and Local 423, Laborers'
International Union of North America, AFL-CIO,
hereinafter called Laborers, appeared at the hearing
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. All parties filed
briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE EMPLOYER
All parties have stipulated that Wander is an
Ohio Corporation engaged in heavy and highway
construction such as bridges, foundations, waste
water treatment and water filtration plants. The
Employer' s annual gross revenue is in excess of
$500,000, and it annually receives goods in interstate
commerce directly from points outside the State of
Ohio in excess of $50,000. The parties agree, and we
find, that the Employer is 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
935
The parties stipulated, and we find , that the
Plumbers and Laborers are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Wander, the Charging Party, is a general
contractor specializing in highway-heavy
construction operating in and around central Ohio.
It is a member of a multiemployer bargaining
association composed of substantially all
highway-heavy contractors in the State of Ohio
called the Ohio Contractors Association-Labor
Relations Division, hereinafter referred to as
OCA-LRD. This association regularly negotiates
bargaining agreements, on behalf of Wander and the
other employers, with the Operating Engineers,
Cement Masons, Teamsters, and Laborers. These
labor agreements are known as highway-heavy
agreements, and apply throughout the entire State.
The Laborers, the Operating Engineers, and the
Cement Masons are all affiliates of the AFL-CIO.
In addition to the highway-heavy agreements each
of the unions, except the Teamsters, has entered into
what are known as building and construction trade
agreements and are members of the Columbus
Building Trades Council. In the highway-heavy
agreements of the Operating Engineers and the
Cement Masons, there are provisions for the
settlement of jurisdictional disputes, requiring that
they be submitted to the National Joint Board.
There is no such agreement in the Wander contract
with the Laborers. The Employer does not now
have, nor has it ever had, an agreement with the
Plumbers. However, Wander, acting independently
of the association's bargaining arrangements, has,
on occasion, as in the present instance, employed
members of the Carpenters union under a written
agreement to employ carpenters under the terms of
the Local Building Trades Agreement, but without
signing the formal bargaining agreement. The
highway-heavy agreement specifically includes in its
jurisdiction water treatment plants such as that
presently being constructed by Wander.
On August 17, 1967, Wander entered into a
contract with the city of Columbus, Ohio, for the
enlargement of a water treatment plant on Morse
Road. The contract, plans and specifications, was
composed of four parts: Part I-General; Part
II-Plumbing; Part III-Heating and Ventilating; and
Part IV-Electrical. Wander subcontracted Parts II,
III, and IV to plumbing, heating and ventilating,
and electrical subcontractors, but performed all of
Part I work with its own labor forces. Pursuant to
the highway-heavy labor agreements, Wander and
representatives of the Teamsters, Operating
Engineers, Cement Masons, and Laborers held a
176 NLRB No. 129
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prejob conference to assign the Part I work in
September 1967. The disputed work was assigned to
the Laborers. The Plumbers did not participate in
this prejob conference. Mr. Steiner, business
representative of the Plumbers, subsequently called
upon representatives of Wander and made claim to
the work in dispute. Mr. Steiner was then informed
that the work in dispute had been assigned to the
Laborers.
The Plumbers then submitted the dispute to the
National Joint Board which issued a decision on
August 20, 1968, awarding part of the work here in
dispute to the Plumbers. The record shows that the
Employer did not actively participate in these
proceedings before the National Joint Board. In
fact, Mr. Reinhart, manager of the Labor Relations
Division of the Ohio Contractors Association,
appeared before the National Joint Board to dispute
its power to make the above-mentioned award.
On October 16, 1968, the plumbers, employees of
plumbing subcontractor Brunner Corporation,
picketed Wander's jobsite and were subsequently
enjoined from so doing by the Common Pleas
Court, Columbus, Ohio. It is clear from the record
that the purpose of the picketing was to obtain the
disputed work.
B. The Work in Dispute
The work over which this dispute is centered, as
set forth in the notice of hearing, involves the
"unloading and laying of pipes at the water
treatment plant being constructed by R. W.
Wander, Inc., at Morse Road." This work is more
specifically set forth in Part 1 of the plans and
specifications of the contract between Wander and
the City of Columbus.'
C. The Contentions of the Parties
The Plumbers grounds its claim to the work in
dispute on two alternative positions . It is first
contended that the Board can not make the
determination of this dispute under 10(k) because all
the parties have agreed to submit the dispute to the
National Joint Board . But, if the Board finds that
the dispute is properly before it for determination
under 10(k), the Plumbers argues that the work
should be awarded to it because : ( 1) the installation
of the water treatment plant is merely an
'The record reveals that the work in dispute is actually far broader than
that indicated in the notice of hearing . Thus, the Plumbers, as already
mentioned , claims for its members the right to that work awarded to them
by the decision of the National Joint Board . The Joint Board award is as
follows-
The handling , unloading , distribution and installation of raw water
intake lines, non -metallic storm and sanitary sewer lines beyond the first
point of connection from buildings, non-metallic sludge lines outside of
the building , and the unloading) handling and distribution of portable
water lines shall be assigned to laborers . All other interconnecting
piping , valves , fittings , pump controls , hangers, supports and chemical
treatment facilities shall be assigned to plumbers and steamfitters.
enlargement of an existing water treatment plant
which was - installed in 1954 by employees
represented by the Plumbers; (2) plumbers and
pipfitters have traditionally and consistently installed
similar water treatment plants throughout the area;
(3) plumbers and pipefitters are more qualified than
laborers to do the work in dispute by virtue of their
special training and schooling; and (4) the National
Joint Board awarded the disputed work to the
Plumbers.
Both the Laborers and Wander contend that they
were not parties to the National Joint Board
proceeding and therefore are not bound. The
Employer maintains that he justifiably assigned the
work to the laborers on the basis of company and
industry practice, skill and efficiency at the
worksite, economy, safety, and applicable labor
agreements . The Laborers further contend that the
assignment of the work was properly given to it
since it has normally done this type of work under
the heavy-highway construction contract and the
work does not require the use of the special skills of
the Plumbers' members.
D. Applicability of the Statute
Before the Board may proceed to a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is a reasonable cause to
believe that Section 8(b)(4)(D) has been violated.
As indicated above, the Plumbers picketed
Wander's jobsite. It is clear from the record that the
purpose of the picketing was to enforce the award of
the National Joint Board, or, described another
way, to obtain the disputed work for employees
represented by the Plumbers.
We find there is reasonable cause to believe that
violations of Section 8(bX4)(D) have occurred, and
that the dispute is properly before the Board for
determination under Section 10(k) of the Act.'
E. Merits of the Dispute
As stated in the J. A. Jones case3 we shall,
pursuant to the Supreme Court's C.B.S. decision,'
rrhe Plumbers contend that all the parties have agreed upon a voluntary
method of adjustment of the dispute and therefore the notice of hearing
should be quashed . This contention is based upon the fact that both the
Employer and the Laborers are signatories to agreements which do provide
for the submission of jurisdictional disputes to the National Joint Board.
Therefore, it is argued, they have recognized the power of the National
Joint Board to render such decisions and should be bound by the decision
rendered in the present case . We find this contention to be without merit.
The agreement between Wander and the Laborers does not provide for
submission of disputes to the National Joint Board . The fact that these
parties in unrelated collective-bargaining agreements agreed to follow the
National Joint Board 's resolution procedure has no bearing on this case.
See Building and Construction Trades Council of Las Vegas (Charles
Dorfman), 173 NLRB No. 208, Plasterer 's Local Union No 79
(Southwestern Construction Co.), 172 NLRB No. 77.
'International Association of Machinists, Lodge No. 1743, AFL-CIO (J
A Jones Construction Co.). 135 NLRB 1402.
IN L.R B v Radio & Television Broadcast Engineers Union (Columbia
Broadcasting System), 364 U.S. 573.
PLUMBERS & STEAMFITTERS LOCAL
determine in each case presented for resolution
under Section 10(k) of the Act the appropriate
assignment of the disputed work only after taking
into account the evidence supporting the claims of
the parties and balancing all relevant factors.
1. Collective- bargaining agreement
Neither of the labor organizations involved herein
has been certified by the Board as the
collective - bargaining agent for a unit of the
Employer's employees. The Laborers has been
recognized by, and has entered into contractual
agreements with, Wander for a substantial period of
time. The Plumbers is not now nor has it ever been
a party to a collective - bargaining agreement with
Wander. However, in some cases Wander
subcontracts a portion of the work to plumbing
subcontractors who do recognize and have
collective- bargaining agreements with the Plumbers.
2. Company and industry practice
Both sides in this dispute point to specific
instances which they claim support their contention
that the industry practice in work assignment favors
their position . It is clear that the Employer,
Wander , when it has a contract to construct such a
water treatment or sewage disposal plant, has
always assigned the work now in dispute to the
laborers. The record further supports the conclusion
that other heavy-highway contractors in this area of
Ohio normally assign this type work to employees
represented by the Laborers.'
3. Efficiency, economy flexibility of operations
The Plumbers only claims a portion of the work
actually involved in this dispute in accordance with
the National Joint Board award. Therefore, if the
plumbers were assigned this work it would require
the fragmentation of the job among the laborers and
plumbers causing increased costs, more complicated
scheduling of workers , and more time required to
complete the job. Further, the record shows that
Wander might well experience difficulty in obtaining
plumbers to perform the small portion of the overall
job they actually claim. In this regard , the record
reveals a reluctance on the part of the Plumbers to
make an arrangement similar to the arrangement
Wander has with the Carpenters to obtain the
necessary personnel to complete the work . Indeed, it
would appear that Wander would have either to sign
an agreement currently in existence between the
Plumbers and the Mechanical Contractors
Association of Central Ohio, or to seek out a
subcontractor covered by this agreement to perform
this portion of the work involved in the dispute.
'The Plumbers has pointed out that in the original construction of Morse
Road Water Treatment Plant the work presently in dispute was assigned to
the plumbers . But it should be noted that the contractor who did this
construction operated through the building trades agreements and was not
a member of OCA-LRD involved in heavy -highway construction
4. Skill of the employees
937
The record clearly shows that the work involved
in this dispute does not require any especially
difficult skills. The skills required to perform the
work can be acquired in a relatively short period of
time, i.e., a few hours. There is no showing of the
need for the utilization of the peculiar skills
possessed by members of the Plumbers union. The
laborers appear to be both capable of performing
the work efficiently and also to have had
considerable experience in performing this type of
work. Indeed, the laborers in the employ of Wander
have repeatedly performed the identical work in
dispute over a long period of time to the complete
satisfaction of the Employer and the contracting
parties.
5. The National Joint Board award
Although, as indicated supra, we do not consider
the National Joint Board's award binding on the
Employer and the Laborers, we consider it as a
factor in determining the proper assignment of the
work in dispute. However, in view of all the
circumstances, including the absence of any showing
in the record as to the basis for the National Joint
Board determination, we are of the opinion that the
National Joint Board award should not be accorded
controlling weight.6
Conclusions
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
believe that the employees of Wander who are
currently represented by the Laborers, rather than
plumbers represented by the Plumbers, are entitled
to the work in dispute. We reach this conclusion
relying upon the Employer's assignment of the
disputed work to its employees, the fact that the
assignment is consistent with the Employer's past
practice and the current bargaining contract, the
fact the employees represented by the Laborers
possess the requisite skills to perform the work, and
that such an assignment will result in efficiency and
economy of operations. Accordingly, we shall
determine the dispute before us by awarding the
work in dispute at the water treatment plant being
constructed by Wander at Morse Road, Columbus,
Ohio to those employees represented by the
Laborers, but not to that Union or its members. In
consequence, we also find that the Plumbers has
not, and is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require the
Employer to assign the disputed work to its
members.
'Sheet Metal Workers, Local 541 (Kingery Construction Co ), 172
NLRB No 108 , and cases cited therein
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Scope of the Determination
The Employer, in his brief, requests that the
Board ' s award be extended to all of the jobs to
which similar disputes may arise in the State of
Ohio whether involving this Employer or any other
highway-heavy contractor member of OCA-LRD.
Although the Board need not restrict its award to a
single job if there is evidence that similar disputes
will occur in the future ,' we conclude that such an
award cannot be made in the present dispute. The
record is not clear with respect to the present or
future operations of this Employer or any other
member of the OCA-LRD, nor is it clear with
respect to the future activities of the parties involved
in the present dispute , and the record does not
reveal all other factors necessary to issue such a
sweeping award as herein sought . Therefore we will
limit our award only to the project presently under
our consideration.
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
'Building and Construction Trades Council of Las Vegas (Charles
Dorfman ), 173 NLRB No 208 , International Union of Operating
Engineers . Local 66 , AFL-CIO (Frank P Badoleto & Son ), 135 NLRB
1392
hereby makes the following determination of the
dispute:
1. Employees of R. W. Wander, Inc., who are
currently represented by Local 423, Laborers'
International Union of North America, AFL-CIO,
are entitled to perform the work of unloading and
laying of pipes and other related work in dispute at
the water treatment plant being constructed at
Morse Road, Columbus, Ohio.
2. Plumbers & Steamfitters Local Union No. 189,
United Association of Journeymen & Apprentices of
the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force or require R. W. Wander, Inc.
to assign such work to plumbers represented by
Plumbers & Steamfitters Local Union No. 189,
United Association of Journeymen and Apprentices
of the Plumbing & Pipe Fitting Industry of the
United States and Canada, AFL-CIO.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Plumbers &
Steamfitters Local Union No. 189, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, shall notify the
Regional Director for Region 9, in writing, whether
or not it will refrain from forcing or requiring the
Employer, by means proscribed by Section
8(b)(4)(D) of the Act, to assign the work in dispute
to plumbers represented by the Plumbers, rather
than to employees represented by the Laborers.