Laborers Southern California Council (Advanco Constructors)

National Labor Relations Board - Board Decisions

May 9, 1994

313 N.L.R.B. 1204 (N.L.R.B. 1994)

1204
313 NLRB No. 213
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Southern California Pipe Trades District Council 16 (District
Council 16) and Local 250 were represented at the hearing by Attor-
ney Jeffrey Cutler. Cutler stated that the positions taken by him at
the hearing are representative of the interests of both parties.
2 As a member of the ECA, the Employer at all relevant times has
been signatory to collective-bargaining agreements with the Car-
penters, Cement Masons, Operating Engineers, Teamsters, and the
Laborers.
Southern California District Council of Laborers,
affiliated with the Laborers’ International
Union of North America, AFL–CIO and
Advanco Constructors, Inc. and Southern Cali-
fornia Pipe Trades District Council 16, Party
in Interest and United Association of Journey-
men & Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Can-
ada, Local 250, AFL–CIO, Party in Interest.
Case 31–CD–345
May 11, 1994
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
The charge in this Section 10(k) proceeding was
filed September 3, 1993, by the Employer, Advanco
Constructors, Inc., alleging that the Respondent, South-
ern California District Council of Laborers, affiliated
with the Laborers’ International Union of North Amer-
ica, AFL–CIO (Laborers), violated Section 8(b)(4)(D)
of the National Labor Relations Act by engaging in
proscribed activity with an object of forcing the Em-
ployer to assign certain work to employees it rep-
resents rather than to employees represented by United
Association of Journeymen & Apprentices of the
Plumbing and Pipefitting Industry of the United States
and Canada, Local 250, AFL–CIO (Local 250, Pipe-
fitters, or Pipefitters Local 250).1 The hearing was held
November 8 and 16, 1993, before Hearing Officer An-
drea Beaubien.
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
Advanco Constructors, Inc., a Division of Zurn Con-
structors Inc., is a California corporation engaged in
heavy construction with a principal place of business
in Upland, California. During the 12 months preceding
the hearing, Advanco had gross revenues in excess of
$1 million, and during the same period it purchased
and received materials directly from enterprises located
outside the State of California in excess of $50,000.
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 Local 250, District
Council 16, 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
The Employer, a member of the Engineering Con-
tractors Association (ECA),2 is engaged in heavy con-
struction. On August 26, 1992, the Employer bid on a
proposal offered by the city of Los Angeles for work
at the Hyperion Treatment Plant located in Playa Del
Rey, California. The Employer was the low bidder on
the project and on January 8, 1993, was awarded the
contract.
On the day the bid was submitted, Local 250 Busi-
ness Agent Jim Jones called the Piping Industry
Progress and Education Trust Fund (PIPE), described
as a labor-management cooperative committee, to re-
port that the Employer had not bid any hours on the
project at the ‘‘pipefitter’’ rates.
On August 28, 1992, PIPE sent a letter to the city
of Los Angeles protesting the Employer’s bid. In the
letter, PIPE reports that the Employer’s bid did not list
any workers under the pipe trades classification, al-
though the protest letter claims that 14,000 hours of
work on the project requires ‘‘the expertise of quali-
fied, trained journeymen and apprentices in pipe fitting
and the plumbing industry to install such a system.’’
The letter also states that the Employer has not em-
ployed any ‘‘journeyman or apprentice pipefitters or
plumbers to perform the piping work,’’ choosing in-
stead to utilize the Laborers’ group IV pipelayer classi-
fication. PIPE claims the group IV pipelayer classifica-
tion was intended to cover pipelaying in the streets in
conjunction with utility work. At the close of the letter,
PIPE requests that the city assign all piping work on
the project to the plumbers/pipefitters classification and
award the project to the contractor that will pay the
prevailing wage to this classification.
By letter dated September 24, 1992, the city in-
formed the Employer that it would enforce the pay-
ment of pipefitter wages for pipe work performed by
laborers. On January 21, 1993, the Employer sent a
letter protesting the city’s decision to require that it
pay the prevailing wage for the pipefitter classification,
as opposed to the prevailing wage for the Laborers’
group IV pipelayer classification.
On February 17, 1993, the city convened a meeting
to discuss the dispute. The meeting was attended by
representatives of the city, PIPE, the Pipefitters Local
250 and District Council 16, the Laborers, and the Em-
ployer. Attorney Cutler, who represented PIPE at the
1205LABORERS SOUTHERN CALIFORNIA COUNCIL (ADVANCO CONSTRUCTORS)
3 The collective-bargaining agreement covers, inter alia, ‘‘[a]ll
work involved in laying and installation of pipe both outside and
within sewage filtration and water treatment plants, including, but
not limited to, mechanical and pressurized pipe within.’’
meeting, stated that the object of the bid protest was
to have the ‘‘pipefitter’’ wage rate paid for all the pip-
ing work on the project. The Laborers replied that the
employees performing the piping work were being
paid the ‘‘pipelayer’’ wage rate as required by their
master labor agreement with the Employer.
During the meeting, District Council 16 Business
Manager Ray Foreman asked Laborers Representative
David Key, ‘‘Are you claiming my work?’’ When Key
responded that the Laborers were indeed claiming the
piping work, Foreman became angry and repeated the
question several times. At one point in the meeting,
Foreman stated that an alleged intercraft agreement in
northern California had already determined the appro-
priate allocation of the disputed work among the crafts.
The employer representative pointed out that the north-
ern California agreement had been nullified.
Since the award of the contract to the Employer on
January 8, 1993, employees represented by the Labor-
ers have been performing all pipe work on the project.
Despite the parties’ collective-bargaining agreement,
the Employer has agreed to pay the Laborers-rep-
resented employees performing the work the higher
‘‘pipefitter’’ wage rate as ordered by the city of Los
Angeles.
By letter dated July 29, 1993, the Laborers informed
the Employer that the work being performed at the
Hyperion Treatment Plant was within their jurisdiction,
and that the Laborers would resist any reassignment of
the work to another craft. The letter threatened that the
Laborers would take economic action against the Em-
ployer if the work were reassigned.
B. Work in Dispute
The disputed work involves all piping work at the
Hyperion Treatment Plant located in Playa Del Rey,
California. The work includes replacing and relocating
pipe, piping work to handle caustic chemical sub-
stances using plastic pipe, piping work for storm
drains, sewers, fuel oil, compressed air, water, and
sludge lines, and other piping work where ‘‘ductal’’
iron pipe is used. In connection with this work, the
employees also prepare the site by digging, grading,
compacting, lagging, shoring, and backfilling.
C. Contentions of the Parties
The Employer and Laborers contend that the work
in dispute is covered by their current collective-bar-
gaining agreement, and therefore the Employer is con-
tractually obligated to assign the piping work to em-
ployees represented by the Laborers. The Laborers
point out that the group IV pipelayer wage rate has
been accepted by the State of California as an appro-
priate prevailing wage for the work covered by that
classification. Thus, the Laborers contend, the Em-
ployer is obligated to pay the group IV pipelayer wage
rate to employees performing the work in dispute be-
cause such work is covered by the collective-bargain-
ing agreement.3
District Council 16 and Local 250 assert that neither
has made a claim for the work in question such that
a 10(k) hearing is warranted and move to quash the
notice of hearing. They maintain that the purpose of
the bid protest was to require the Employer to pay pre-
vailing wages for the pipelaying work, and not to have
the work reassigned to employees represented by Local
250.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on a method for the vol-
untary adjustment of the dispute.
The record shows that the parties have not agreed on
a method to adjust this dispute voluntarily.
Based on the record as a whole, we find that Local
250 has made a claim for the work in dispute such that
a 10(k) hearing is warranted. The protest letter filed by
PIPE with the city of Los Angeles, which PIPE wrote
as a result of Local 250’s complaint, seeks the reas-
signment of work to employees employed in the pipe
trades classification. PIPE argues that the work in dis-
pute requires ‘‘the expertise of qualified trained jour-
neymen and apprentices in pipefitting and the plumb-
ing industry,’’ and suggests that the employees rep-
resented by the Laborers are not qualified to perform
this level of work. At no point does the protest letter
challenge the prevailing wage rate associated with the
Laborers’ group IV classification.
We further find that the conduct of District Council
16 Business Manager Ray Foreman at the February 17
meeting indicates that an object of the bid protest was
the reassignment of the piping work to employees rep-
resented by Local 250. Foreman’s repeated referral to
the disputed work as ‘‘my work,’’ and his suggestion
that the northern California agreement controls the al-
location of the piping work among the two crafts,
demonstrate the Pipefitters’ claim for the work. Fore-
man testified at the hearing that most of the work in
dispute was ‘‘Pipefitters’ work,’’ and that since the
State of California had approved the Laborers’ group
IV pipelayer classification, ‘‘the laborers have used
that classification to do all of our work whenever they
think they can get away with it.’’
The above statements by PIPE and District Council
16 representatives were made on behalf of employees
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
represented by Local 250 and in support of Local
250’s claim for the work. As such, they constitute evi-
dence that Local 250 had indeed sought the reassign-
ment of the work in dispute to employees it represents.
See Glass & Pottery Workers Local 158 (Atlas Found-
ry), 297 NLRB 425, 428 (1989).
Although PIPE is a joint labor-management commit-
tee, and thus is a separate entity from either District
Council 16 or Local 250, we conclude, based on all
the circumstances, that PIPE was acting on behalf of
Local 250 and District Council 16 when it sent the let-
ter of protest to the city. We also find it significant
that a Local 250 business agent initiated the bid protest
by reporting to PIPE that the Employer had not bid
any hours at the pipefitter rates. We also note that Ray
Foreman, business manager for District Council 16 and
a vocal spokesperson on behalf of the Pipefitters, is
also a trustee on PIPE’s board of trustees. Moreover,
Local 250, District Council 16, and PIPE have all been
represented by Cutler in the bid protest and subsequent
Board proceedings. Indeed, Cutler stated on the record
that the positions taken by him were representative of
the identical interests of Local 250 and District Coun-
cil 16.
Evidence of Local 250’s claim is disputed by testi-
mony presented by PIPE, Local 250, and District
Council 16 that they did not make a demand for the
work. PIPE Representative Mike Massey testified that
the bid protest was based on the fact that the Employer
did not bid any hours at the pipefitter rates utilizing
employees in the pipe trades classification. Despite this
assertion, Massey admitted that it was impossible to
tell from the bid alone which employees would be per-
forming the piping work or what wage rate they would
be paid.
The record shows that the Laborers have at all times
claimed the work in dispute and, by letter dated July
29, 1993, threatened to take economic action against
the Employer if the work was reassigned to another
craft.
In a 10(k) proceeding the Board is not charged with
finding that a violation did in fact occur, but only that
reasonable cause exists for finding a violation. Thus, a
conflict in the testimony need not be resolved in order
for the Board to proceed to a determination of the dis-
pute. Laborers Local 334 (C. H. Heist Corp.), 175
NLRB 608, 609 (1969). Thus, even assuming that an
object of Local 250’s protest was the payment of pre-
vailing wages, we find reasonable cause to believe that
another object was the reassignment of the disputed
work to employees it represents. See Electrical Work-
ers IBEW Local 701 (Federal Street Construction),
306 NLRB 829, 831 (1992).
We further find that the Laborers’ July 29 letter con-
stitutes a threat of economic action if the work in dis-
pute was reassigned. Under these circumstances, 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, and we deny the
motion by District Council 16 and Local 250 to quash
the notice of hearing.
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, 1410–
1411 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Certification and collective-bargaining
agreement
The Employer, through its membership in the ECA,
has been a party to the Laborers’ Master Labor Agree-
ment since 1984. The current contract is effective July
1992 through July 1995. Article I, section B(5) of the
contract describes the piping work covered by the con-
tract as ‘‘all work involved in laying and installing
pipe outside of a building, structure or other work re-
gardless of the material used or substance conveyed,
and all work involved in laying and installing of pipe
both outside and within sewage filtration and water
treatment plants, including, but not limited to mechani-
cal and pressurized pipe within.’’ The contract includes
group III and group IV classifications entitled
‘‘pipelayer’s back-up man’’ and ‘‘pipelayer’’ respec-
tively. A majority of the piping work at the Hyperion
Treatment Plant is being performed by employees clas-
sified as group IV pipelayers.
The Employer does not have an agreement with
Local 250 or any other Pipefitters union. The last col-
lective-bargaining agreement between the Employer
and a Pipefitter union expired in 1983. The Employer
has, however, signed letter agreements to use Pipe-
fitters-represented employees when it was specifically
required to do so by a contract. Based on the above,
we find that this factor favors an award of the work
to employees represented by the Laborers.
2. Company preference and past practice
Since January 1984, the Employer has employed
employees represented by the Laborers to perform all
piping work on its projects. The Employer’s president,
1207LABORERS SOUTHERN CALIFORNIA COUNCIL (ADVANCO CONSTRUCTORS)
Armand DeWeese, testified that the Employer prefers
to use Laborers-represented employees because they
are familiar with the Employer’s practices and safety
policies, and because the Employer is able to move
them as a crew from job to job. Accordingly, we find
that this factor favors an award of the work in dispute
to employees represented by the Laborers.
3. Area and industry practice
The record shows that employer-members of the
ECA use employees represented by the Laborers to
perform their piping work pursuant to the ECA’s col-
lective-bargaining agreement with the Laborers. The
record also shows, however, that at least three employ-
ers in the area use employees represented by the Pipe-
fitters to perform such work. In view of the evidence
that both groups of employees perform the work in
dispute on various projects in the area, we find that
this factor does not favor any group of employees.
4. Relative skills
DeWeese testified that prior to 1984, the Employer
used employees represented by the Pipefitters to join
the pipes. Since that date, he testified that employees
represented by the Laborers have satisfactorily com-
pleted all piping work on the Employer’s projects and
that they are sufficiently skilled to perform this work.
The record shows, however, that some employers in
the industry continue to use employees represented by
the Pipefitters to perform their piping work. Accord-
ingly, we find that both groups of employees are suffi-
ciently skilled to perform the work in dispute and that
this factor does not favor any group of employees.
5. Economy and efficiency of operations
In addition to the pipelaying work, Laborers-rep-
resented employees also perform the related digging,
grading, compacting, lagging, shoring, and backfilling
work. The time spent actually laying and coupling the
pipe is only 5–10 percent of the total work involved
in the project. DeWeese testified that to have employ-
ees represented by the Pipefitters lay and join the pipe
is inefficient because they would be idle for a majority
of the time. DeWeese also testified that the Employer
provides the Laborers-represented employees with on-
the-job training, and attempts to keep the crews and
their foremen together from job to job to maximize
their efficiency, productivity, and safety.
Based on the testimony presented, we find that this
factor favors an award of the disputed work to employ-
ees represented by the Laborers.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Southern Califor-
nia District Council of Laborers, affiliated with the La-
borers’ International Union of North America, AFL–
CIO are entitled to perform the work in dispute. We
reach this conclusion relying on the Employer’s collec-
tive-bargaining agreement with the Laborers, the Em-
ployer’s preference and past practice, and economy
and efficiency of operations. In making this determina-
tion, we are awarding the work to employees rep-
resented by the Laborers, not to that Union or its
members. The determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees represented by Southern California Dis-
trict Council of Laborers, affiliated with the Laborers’
International Union of North America, AFL–CIO are
entitled to perform all piping work at the Hyperion
Treatment Plant in Playa Del Rey, California.