Heavy Construction Laborers Local 663

National Labor Relations Board - Board Decisions

Feb 27, 1970

181 N.L.R.B. 380 (N.L.R.B. 1970)

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heavy Construction Laborers Local No. 663,
affiliated with the Laborers International Union of
North America , AFL-CIO, and Grinnell Company,
Inc. Case 17-CD-117
February 27, 1970
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 Grinnell Company, Inc.,
herein referred to as the Employer , alleging, in
substance , that Heavy Construction Laborers Local
No. 663, herein referred to as the Respondent, in
violation of Section 8(b)(4)(D ) has engaged in
and/or induced or encouraged individuals employed
by certain contractors at the construction site of the
TWA Overhaul Base at the Kansas City
International Airport, Kansas City, Missouri, to
engage in a strike and/or concerted refusal in the
course of their employment to perform any services
for their respective employers with an object of
forcing or requiring the Employer to assign certain
work to its members rather than to members of
Sprinkler Fitters and Apprentices Local Union No.
314 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada , herein
referred to as the Sprinkler Fitters.
Pursuant to notice , a hearing was held before
Gerald A. Wacknov , Hearing Officer, on October
16 and 17, 1969. All parties 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 . The rulings of the
Hearing Officer made at the hearing are free from
prejudicial error and are hereby affirmed. The
Employer , the Respondent Union , and the Sprinkler
Fitters filed briefs ; these have been duly considered
by the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three -member panel.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, Grinnell Company, Inc., is a
Delaware corporation, one division of which is
engaged in the business of manufacturing and
installing fire protection equipment, with its
principal offices located in Providence, Rhode
Island. The Employer annually sells merchandise
and services valued in excess of $500,000 and
annually sells in excess of $50,000 of merchandise
and services to customers located outside the State
of Rhode Island. We find that the Employer is
engaged in commerce within the meaning of the
Act, and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
We find, in accord with the stipulation of the
parties, that the Respondent Union and the
Sprinkler Fitters are labor organizations as defined
in Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in issue is the unloading, handling, and
distribution (but not installation) of cement-lined
pipes, valves, fittings, and other equipment necessary
to the underground portion of a complete fire
protection system being erected at the Kansas City
International Airport facilities of The Trans World
Airlines Overhaul Base pursuant to the terms of the
Employer's contract with the J.A. Tobin
Construction Company, the general contractor for
the Kansas City Department of Public Works.
B. The Facts
Grinnell, in October 1968, received a subcontract
from the J.A. Tobin Construction Company to
perform certain fire protection work at the Kansas
City International Airport, described above, in
which a large amount of underground excavation is
involved. In turn Grinnell subcontracted the
excavating and backfilling of trenches for the
underground pipe to the Bernie Excavating
Company of Kansas City. Work was begun; in April
1969, the Respondent Union made demands of
Grinnell for the unloading, handling, and
distribution of the pipe involved, culminating about
June 2, 1969, in 2 days of picketing at the main
entrance to the TWA Overhaul Base, where
construction work was going on, by a picket
carrying the following sign:
Grinnell refuses to abide by National Joint Board
award Laborers Local 663. We do not have
dispute with any other Employer.
During the 2 days of picketing and thereafter,
employees of Bernie's Excavating Company, who
are members of the Respondent Union, refused to
report on the Grinnell job but continued to work on
other excavating projects of Bernie's Excavating Co.
at the TWA Overhaul Base .' This refusal continued
for several months until about August 1, when
Respondent's members returned to work pending
the Board's determination of the dispute.
'During the picketing, but not thereafter , two hoisting engineers refused
to work for the Employer.
181 NLRB No. 55
HEAVY CONSTRUCTION LABORERS LOCAL 663 381
C Contentions of the Parties
Essentially the Respondent Union bases its claim
on an action of November 1968 taken by the Joint
Board for Settlement of Jurisdictional Disputes in
the Building and Construction Industry. By its terms
this award was effective only with respect to the
TWA Overhaul Base project here involved, the Joint
Board's decision being: "Unloading, handling and
distributing of water line pipe is governed by the
agreement of January 23, 1941,2 and shall be
assigned to laborers." The Employer, who did not
participate in the Joint Board proceeding, and the
Sprinkler Fitters were advised of the ruling by letter
of April 14, 1969, from the Chairman of the Joint
Board and again on June 3, 1969. In addition, the
Respondent Union urges that the Employer is party
to a National Agreement dated May 27, 1964,3 with
the Laborers International Union providing that the
latter shall perform the "handling and distribution
of water mains, gas mains and all pipe."
Respondent also relies upon the subcontract between
Grinnell and J.A. Tobin Construction Company, the
general contractor, as embodying the Tobin labor
contract with the Laborers and its provisions
concerning conforming work assignments to
established jurisdictional lines and referring disputes
to the National Joint Board in certain
circumstances, urging that Grinnell is thereby bound
to the 1968 decision of the Joint Board which
decided the issue in favor of the laborers. And,
finally, Respondent relies upon a September 3, 1948,
stipulation signed by Grinnell's then manager of its
Industrial Piping Division agreeing to accept and
comply with decisions of the Joint Board.
The Employer contends that decisions of the Joint
Board are merely one of many factors to be
considered by the Board pursuant to Section 10(k);
that the submission to the Joint Board by the
Laborers in 1968 was unilateral; that the Joint
Board was not properly advised that the pipe
involved was specially fabricated for fire protection,
being cement-lined to reduce water friction, rather
than simply "water line" as described in the said
award; and that the underlying Plumbers-Laborers
agreement relied upon by the Joint Board had no
applicability to Grinnell. In addition Grinnell
contends that the 1948 stipulation by the manager of
its Industrial Piping Division to the agreement
effective May 1, 1948, creating the Joint Board
applies only to the Industrial Piping Division of
Grinnell and not to the Fire Protection Division
here involved, which has never been stipulated to the
Joint Board, and that the 1964 National Agreement
'The January 23, 1941 , agreement referred to by the Joint Board is one
between the Plumbers International and the Laborers International
concerning a division of work in connection with sewers and water mains
generally
'The Employer testified that this was a current national agreement
of Grinnell with the Laborers also applies only to
the Industrial Piping Division . Also, Grinnell
contends that nothing in its subcontract with Tobin
either expressly or implicitly requires it to be bound
by the decisions of the Joint Board.
Sprinkler Fitters relies upon its 1954 certification
by this Board as the bargaining representative for
journeymen sprinkler fitters and apprentices
employed in installation and maintenance by
employer members and licensees of the National
Automatic Sprinkler and Fire Control Association
operating in the Kansas City area, of which Grinnell
has been an employer - member for many years, since
the inception of the Association in 1914 ; that this
Association has a contract with Local 314 which
covers unloading , handling and installing of
equipment and piping incident to the installation of
fire protection and fire control systems in the
Kansas City area; and that the Laborers has no
collective-bargaining agreements with the Fire
Protection Division of Grinnell and none with any
other fire protection contractors . Finally , it contends
that even if it were assumed for the sake of
argument that the Laborers 1964 contract with the
Industrial Piping Division of Grinnell is relevant to
the work of the Fire Protection Division of Grinnell,
the most that could be said would be that two
collective-bargaining agreements , with different
unions, exist to cover the disputed work, and that
the result under Board precedent would be to
consider neither contract in making a determination.
D. Applicability of the Statute
Before the Board proceeds with a determination
of dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated.
There is no question here that the members of the
Respondent engaged in a work stoppage in
furtherance of the Respondent's demand for the
replacement of members of Sprinkler Fitters Local
314 with members of the Respondent, and the
Respondent admitted at the hearing that such a
dispute exists and that it is claiming the work in
question. The Respondent contends, in effect, that
the Board is precluded from making a determination
of the dispute because the 1968 Joint Board award
constitutes an adjustment of the dispute within the
meaning of Section 10(k) and Grinnell has bound
itself to comply with such awards. We find no merit
in this contention. Grinnell was not a party to the
1968 award, and the 1948 stipulation urged by
Respondent was applicable only to Grinnell's
Industrial Piping Division and not to its Fire
Protection Division here concerned. The subcontract
between Grinnell and Tobin for the TWA Overhaul
Base fire protection system likewise yields no basis
for finding Grinnell's Fire Protection Division
thereby became subject to the jurisdiction of the
Joint Board. Based upon the record before us there
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is at present no agreed-upon method for the
voluntary adjustment of the instant dispute to which
all parties hereto are bound. Accordingly, we find
that the Respondent was responsible for the work
stoppage, that a violation of Section 8(b)(4)(D) has
occurred, and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after giving due consideration to various relevant
factors. The following are the factors relied upon by
the parties to the dispute to support their respective
claims.
1. Contracts and certifications
It appears that the Sprinkler Fitters was certified
by the Board in 1954 as representative of a
multiemployer unit in the Kansas City area
consisting of employees of members of the National
Automatic Sprinkler and Fire Control Association.
Since that time the said unit, including the
employees who were here assigned the work in
dispute, has been covered by successive bargaining
contracts. It also appears that the 1964 National
Agreement with the Laborers International covering
field construction work, to which contract "Grinnell
Company, Inc., Industrial Piping Division", is
signatory, applies only to that specific division of
the Grinnell Company, which division does not
engage in the installation of fire protection system S.4
2. Company, industry, and area practice
Grinnell and the Sprinkler Fitters contend that
employer practice, area practice, and national
practice demonstrate that members of the Sprinkler
Fitters customarily perform the work of unloading,
handling, and distributing, as well as installing, the
special high-pressure water pipe used in this work.
Numerous witnesses from various sprinkler and fire
protection companies testified to this practice in the
Kansas City area and elsewhere existing over a
period of years. Respondent makes no contention as
to existing practice, except that it evaluates the
testimony of the witnesses from sprinkler companies
as dealing only with sprinkler systems in commercial
buildings, which it views as not comparable with the
"primarily heavy pipe" used at the TWA Overhaul
Base and the far larger quantity of pipe involved.
The evidence Respondent offered on area practice
concerned installation of a concrete water pipe to
the Airport by its members.
'The Employer testified that its Industrial Piping Division " fabricates
pipe for large complexes such as power houses , chemical plants, pulp paper
mills, and makes installation of that pipe" and unlike the Fire Protection
Division, has no "national bargaining agent "
3. Employee skills and efficiency of operations
Grinnell and the Sprinkler Fitters contend that
Respondent's members lack the skill to handle the
specialized, concrete-lined water pipe here involved
which is more "delicate" than typical underground
water lines and must be handled with greater care
and skill. Sprinkler Fitters conducts a coordinated
classroom and on-the-job training program for
sprinkler fitters in order that they may qualify for
this work; they must be able to read blueprints and
locate the proper piece of pipe, and must be trained
in the handling, marking, cutting, and installing of
the specialized pipe and specialized items related to
it. It appears that it would be inefficient and costly
to have the laborers unload, handle, and distribute
the pipe and materials and then have the sprinkler
fitters install it, inasmuch as the work is often done
only a few sections at a time and laborers would
have to be paid for waiting time whereas a crew of
sprinkler fitters could be used for both preliminary
handling and installation purposes. On the record as
a whole, we find that the factors of skill, efficiency,
and economy of operation favor the Employer's
practice of assigning the work to its employees.
Conclusions as to the Merits of the Dispute
Based upon the entire record and after full
consideration of all relevant factors involved,
including the Employer's assignment of the work,
the Board's certification, the contractual relationship
between the Employer and the Sprinkler Fitters, the
efficiency of the Employer's operations, the most
economic utilization of employees of its Fire
Protection Division, and the area practice, we shall
determine the dispute before us by awarding the
work of unloading, handling, and distributing of
cement-lined piping, valves, fittings, and other
equipment necessary to the erection of a complete
fire protection system, partially underground, at the
Kansas City International Airport facilities of The
Trans World Airlines Overhaul Base pursuant to the
terms of Grinnell contract with the J.A. Tobin
Construction Company, the general contractor for
said City's Department of Public Works, to
employees of the Employer represented by the
Sprinkler Fitters. Our award is not to the Sprinkler
Fitters or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) 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
following Determination of Dispute:
1. Employees employed by Grinnell Company,
Inc., who are represented by Sprinkler Fitters and
Apprentices Local Union No. 314 of the United
Association of Journeymen and Apprentices of the
HEAVY CONSTRUCTION LABORERS LOCAL 663 383
Plumbing and Pipe Fitting Industry of the United
States and Canada, are entitled to perform the work
of unloading, handling , and distributing the piping,
valves , fittings, and other equipment necessary for
the erection of the fire protection system at the
Kansas City International Airport facilities of The
Trans World Airlines Overhaul Base.
2. Heavy Construction Laborers Local No. 663,
affiliated with The Laborers International Union of
North America, AFL-CIO, is not entitled to force
or require , directly or indirectly, Grinnell Company,
Inc., its successors or assigns , to assign any of the
work to employees represented by said Union.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Heavy Construction
Laborers Local No. 663, affiliated with The
Laborers International Union of North America,
AFL-CIO, shall notify the Regional Director for
Region 17, in writing , whether it will or will not
refrain from forcing or requiring , directly or
indjrectly, Grinnell Company, Inc., its successors or
assigns, by means proscribed in Section 8(b)(4)(D)
of the Act, to assign the above-described work to
employees represented by said Union.