Laborers Local 500 (Helm & Associates, Inc.)

National Labor Relations Board - Board Decisions

Jul 31, 2006

347 N.L.R.B. 751 (N.L.R.B. 2006)

LABORERS LOCAL 500 (HELM & ASSOC.)
347 NLRB No. 68
751
Laborers’ International Union of North America,
Local No. 500 and Helm & Associates, Inc. and
United Association, Local 50 Journeymen and
Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada. Case 8–
CD–500
July 31, 2006
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act)
involving the Laborers’ International Union of North
America, Local No. 500 (Laborers) and the United Asso-
ciation, Local 50 Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States
and Canada (UA Local 50).1 For reasons discussed be-
low, we award the work in dispute to employees repre-
sented by the Laborers.
On the entire record, the Board makes the following
findings.
I. JURISDICTION
The parties have stipulated that Helm & Associates,
Inc. (the Employer) is an Ohio corporation engaged as a
mechanical contractor in the construction industry, and
that it annually purchases and receives goods valued in
excess of $50,000 directly from points located outside of
Ohio. The parties have further stipulated, and we find,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. Finally, the
parties have stipulated, and we find, that the Laborers
and UA Local 50 are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is bound by collective-bargaining
agreements with both the Laborers and UA Local 50. It
has an agreement with UA Local 50 through its member-
ship in the Mechanical Contractors Association of
Northwestern Ohio (MCA). It is also a signatory to the
Ohio Highway-Heavy Municipal-Utility State Construc-
tion Agreement (HHA), which is a multiemployer

1 The charge in this proceeding was filed by Helm & Associates, Inc.
on March 14, 2006, alleging that the Laborers violated Sec. 8(b)(4)(D)
of the Act by engaging in proscribed activity with an object of forcing
the Company to assign certain work to employees represented by the
Laborers rather than to employees represented by UA Local 50.
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, finding them free
from prejudicial error.
agreement with the Laborers. Both agreements were in
effect at the time of the events described below.2
In the fall of 2005, the Employer received a contract to
install the water filtration/treatment system at the City of
Toledo Detwiler swimming pool project. The Employer
assigned all of the work in connection with the project to
employees represented by the Laborers.
On December 5, 2005, UA Local 50 filed a grievance
alleging that the Employer had violated the MCA agree-
ment by assigning the installation of the piping on the
filtration system to the Laborers. A hearing on the griev-
ance was held before the MCA’s Labor Management
Committee (LMC) on January 23, 2006.3 The Employer
challenged the authority of the LMC to resolve the issue
and refused to take part in the hearing.4 The LMC sub-
sequently found that the Employer violated the MCA
agreement and assessed damages against the Employer.
Prior to the LMC hearing, the Laborers sent a letter to
the Employer stating that it was aware of the grievance
and that it claimed the work based on past practice and
the HHA. After the LMC issued its decision, the Em-
ployer informed the Laborers that it was going to assign
any remaining pipe installation work on the project to
UA Local 50 unless the Laborers could persuade UA
Local 50 to disclaim the work. The Employer received a
letter from the Laborers on March 11, threatening a strike
if it awarded the pipe installation work to UA Local 50.
The Employer then filed a charge with the Board on
March 14.
B. Work in Dispute
The parties have stipulated that the work in dispute is
all work in connection with the installation of the water
filtration/treatment system at the City of Toledo Detwiler
pool project. The record indicates that this work includes
the following: installation of piping inside of the filtra-
tion plant; installation of piping from the plant to the
filter; removal of the existing system; removal and re-
placement of concrete; setting and rigging equipment;
construction of a concrete pad for the filter and setting
the filter on the pad; core drilling and patching of walls;
reworking of steel ladders, rails, and platform; removal
and replacement of doors; erection of fencing; and land-
scaping.

2 The term of the MCA agreement is July 1, 2005, through June 29,
2008. The term of the HHA agreement is May 1, 2004, through April
30, 2007. The Employer became a signatory to the HHA on January
17, 2005.
3 All dates hereafter are in 2006 unless otherwise noted.
4 The Employer asserted that the Board has exclusive authority to
settle the dispute pursuant to Sec. 10(k).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD752
C. Contentions of the Parties
The Employer and the Laborers contend that the dis-
puted work should be assigned to employees represented
by the Laborers based on employer preference and past
practice, and economy and efficiency of operations. Ad-
ditionally, the Laborers contend that the work should be
assigned to employees it represents based on area and
industry practice, relative skills, and the HHA. Both the
Employer and the Laborers request that the Board issue a
broad award covering all future assignment of the work
in dispute to employees represented by the Laborers.
UA Local 50 contends that the work should be as-
signed to those employees that it represents based on the
MCA, area and industry practice, and relative skills.
D. Applicability of the Statute
The Board may proceed with a determination of a dis-
pute under Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. This standard requires finding that there is rea-
sonable cause to believe that (1) there are competing
claims to the disputed work; and (2) that a party has used
proscribed means to enforce its claim to the work in dis-
pute. Additionally, there must be a finding that the par-
ties have not agreed on a method for the voluntary ad-
justment of the dispute. See, e.g., Operating Engineers
Local 150 (R & D Thiel), 345 NLRB 1137, 1139 (2005).
We find that all three of these criteria are satisfied.
1. Competing claims for work
The parties have stipulated, and we find no evidence to
the contrary, that the Laborers and UA Local 50 both
claim the work in dispute.
2. Use of proscribed means
The parties have also stipulated, and the evidence
shows, that the Employer received a letter from the La-
borers on March 11 threatening a strike if the work is
assigned to UA Local 50. There is therefore reasonable
cause to believe that the Laborers used proscribed means
to enforce its claim to the work in dispute.
3. No voluntary method for adjustment of dispute
Finally, the parties have stipulated that there is no
agreed-on method for the voluntary adjustment of this
dispute that would bind all parties. The record shows
that although UA Local 50 has attempted to resolve the
dispute through its contractual grievance process, the
process is not binding on the Laborers.
We therefore find this dispute is properly before the
Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia 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 ex-
perience, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J. A. Jones
Construction), 135 NLRB 1402, 1410–1411 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certification and collective-bargaining agreements
The parties have stipulated, and there is no evidence to
the contrary, that the Employer has voluntarily recog-
nized both unions and that there are no Board orders or
certifications determining the collective-bargaining rep-
resentative of the employees performing the work in dis-
pute.
Both unions have asserted a claim to the work based
on their respective collective-bargaining agreements with
the Employer. The Laborers base their claim primarily
on article II, section 11(g) of the HHA, which defines the
following work as being within the scope of the agree-
ment:
Sewage Plant, Waste Plant, Water Treatment Fa-
cilities Construction, Pumping Stations (except
packaged plants) shall be all work in construction of
pumping stations . . . water treatment plants, filtra-
tion plants and solid waste disposal plants.
All work involved in laying and installation of
process piping outside of a building, structure, or
other work, regardless of the material used or sub-
stance conveyed.
All work involved in laying and installation of
process piping both outside and within . . . water
treatment plants, including, but not limited to, me-
chanical and pressurized pipe within.
UA Local 50 bases its claim on language contained in
schedule A of its agreement with the MCA, which provides
that the following work “shall be done exclusively” by
members of UA Local 50:
All cold, hot and circulating water lines, piping for
house pumps . . . swimming pools . . . and the handling
and setting of the equipment mentioned above.
Based on the language in the respective collective-
bargaining agreements, employees represented by both
unions have arguable claims to the disputed work. Thus,
we find that this factor does not weigh in favor of either
group of employees.
LABORERS LOCAL 500 (HELM & ASSOCIATES) 753
2. Employer preference and past practice
Employer’s witness Keith Helminski, who is president
and CEO of the Company, testified that the Employer
prefers to assign the work in dispute to employees repre-
sented by the Laborers.
With regard to the Employer’s past practice, the record
shows that the Employer has assigned installation of pip-
ing to employees represented by the Laborers on four
projects since August 2004: (1) the Ottawa County water
treatment and pump station; (2) a water main project in
Weston, Ohio; (3) a water treatment plant in Defiance,
Ohio; and (4) a high-volume pump station in Edgewater.5
Although the Employer has never done work on a
swimming pool before the Detwiler project, Helminski
testified that the work performed by members of the La-
borers on the swimming pool project was analogous to
that performed on the above-mentioned water treatment
and pump projects.
Tom Joseph, business manager for UA Local 50, testi-
fied that the swimming pool project is not analogous to
the earlier projects assigned to the Laborers because the
pool’s filtration system was prepackaged, and the system
is self-contained on the property. However, Joseph ad-
mitted that there are similarities between a water treat-
ment plant’s filtration system and a swimming pool’s
filtration system.
Helminski testified generally that the Employer has as-
signed pipe installation in the past to employees repre-
sented by UA Local 50 on private-sector projects. There
is no specific information in the record concerning these
assignments.
We conclude from this evidence that the Employer has
a past practice of assigning pipe installation work to em-
ployees represented by both unions. Given the Em-
ployer’s preference, however, we find that this factor
favors assigning the work to employees represented by
the Laborers.
3. Area and industry practice
Based on the evidence presented by the parties, there
does not appear to be a uniform area or industry practice
regarding the assignment of the type of work in dispute.
Helminski testified that local practice is to assign pipe
installation work on municipal construction projects to
employees represented by the Laborers, and to assign
pipe installation work on private construction projects to
employees represented by UA Local 50. Witnesses for
the Laborers testified that members of their union have
performed pipe installation work for other area contrac-

5 On projects that were done before the Employer signed the HHA
(January 2005), the Employer assigned the work to employees repre-
sented by the Laborers pursuant to project-specific agreements.
tors for the last 40 years. Business Agent Yancy Shaw
testified that members of the Laborers performed work
on a swimming pool project at Ohio State University,
including the installation of piping that went through the
pump house.6
UA Local 50 Business Manager Joseph testified that
pipe installation work in the area is a “mixed bag.” UA
Local 50 offered into evidence an e-mail from an MCA
member that listed a number of swimming pool projects
on which it employed members of UA Local 50.7 UA
Local 50 also proffered miscellaneous documents indi-
cating that members of the Plumbers and Pipefitters have
performed swimming pool work in other areas of the
country.8
We find that the above evidence is insufficient to es-
tablish a clear area or industry practice with regard to the
disputed work. Accordingly, this factor favors neither
employees represented by the Laborers nor those repre-
sented by UA Local 50.
4. Relative skills
The record demonstrates that employees represented
by both UA Local 50 and the Laborers possess the neces-
sary skills to perform the installation of the water filtra-
tion system.
According to testimony by Joseph, UA Local 50 mem-
bers initially participate in a mandatory 5-year training
program encompassing all facets of plumbing and pipe-
fitting. The program includes 265 hours of training each
year and a minimum of 1800 hours in the field.
Helminski testified that Laborers’ members have the
skills needed to perform the work, and that he has not
had any complaints concerning the Laborers’ members’
performance with regard to the installation of pipes on
past projects. Tom Leonard, a business agent for the
Laborers, testified that two of the union’s members who
are employed on the Detwiler job have received relevant
training. Additionally, Ed Sidle, who is a member of the
Laborers, testified that he has performed pipe installation
work for the Employer on several projects, including the
Detwiler project.
Because both groups of employees have the skills nec-
essary to perform the work in dispute, we find that this

6 There is no evidence as to when this project was begun or com-
pleted.
7 The e-mail presents no specifics concerning the type of work per-
formed on the projects.
8 UA Local 50 attached to its brief to the Board several documents
not introduced at the hearing. The Laborers subsequently filed a mo-
tion to strike the documents because they were not presented as evi-
dence during the hearing. On May 22, 2006, the Board granted the
Laborers’ motion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD754
factor does not favor assigning the work to employees
represented by either union.
5. Economy and efficiency of operations
As stated above, the work in dispute includes not only
pipe installation but also, inter alia, the removal and re-
placement of concrete, the construction of a concrete pad
for the filter, drilling of walls, reworking of ladders and
rails, replacement of doors, erection of fencing, and land-
scaping. The Employer and the Laborers argue that as-
signing the disputed work to employees represented by
the Laborers is more efficient because those employees
will perform all of these tasks, thus making it unneces-
sary for the Employer to hire additional employees.9
UA Local 50 does not contend that its members would
perform any of the above-mentioned tasks (other than
pipe installation), and does not deny that the employees
represented by the Laborers are more versatile.
Based on the record before us, we find that this factor
weighs in favor of assigning the work to employees rep-
resented by the Laborers.
Conclusions
After considering all the relevant factors, we conclude
that employees represented by the Laborers are entitled
to perform the work in dispute. We reach this conclusion
relying on employer preference and economy and effi-
ciency of operations. In making this determination, we
are awarding the disputed work to employees represented
by the Laborers, not to that labor organization or its
members.

9 The Employer also argues that it is more economical to hire em-
ployees represented by the Laborers because their hourly wage and
benefit rates are lower than comparable rates for employees represented
by UA Local 50. The Board does not consider such evidence to be
relevant in making an award. See Bakery Workers Local 205 (Metz
Baking Co.), 339 NLRB 1095, 1098 (2003); Painters Local 91 (Frank
M. Burson, Inc.), 265 NLRB 1685, 1687 (1982).
F. Scope of the Award
The Employer and the Laborers request a broad award
covering all future assignment of the work in dispute
within the geographic region of the HHA. We deny this
request.
The Board customarily declines to grant a broad, area-
wide award in cases where the charged party represents
the employees to whom the work is awarded and to
whom the employer contemplates continuing to assign
the work. See, e.g., Southwest Regional Council of Car-
penters (Standard Drywall, Inc.), 346 NLRB 478, 483
(2006); Pipefitters Local 562 (Systemaire, Inc.), 321
NLRB 428, 431 (1996). Here, the Employer contem-
plates continuing to assign the work to employees repre-
sented by the Laborers, the charged party. Accordingly,
the conduct of the Laborers does not warrant a broad
award.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute:
Employees of Helm & Associates, Inc., represented by
the Laborers’ International Union of North America,
Local No. 500 are entitled to perform the work in dis-
pute:
All work in connection with the installation of the wa-
ter filtration/treatment system at the City of Toledo
Detwiler pool project, including the installation of pip-
ing inside of the filtration plant; installation of piping
from the plant to the filter; removal of the existing sys-
tem; removal and replacement of concrete; setting and
rigging equipment; construction of a concrete pad for
the filter and setting the filter on the pad; core drilling
and patching of walls; reworking of steel ladders, rails,
and platform; removal and replacement of doors; erec-
tion of fencing; and landscaping.