Local 1184, So. Calif. Laborers

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1078 (N.L.R.B. 1971)

1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 1184, Southern California District Counsel of
Laborers ands H. M. Robertson, Pipeline ,Construc-
tors and Local 364, United Association of Plumbers
and Pipefitting Industry . Case 21-CA-287
-August 27, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
' FANNING AND BROWN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by H. M. Robertson Pipeline
Constructors, hereinafter called Robertson or the
Employer, alleging that Local 1184, Southern Cali-
fornia District Council of Laborers, hereinafter
called Laborers, had violated Section 8(b)(4)(D) of
the Act. A duly scheduled hearing was held before
Hearing Officer David G. Weber on January 28 and
February 8 and 19, 1971, in Los Angeles, California.
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., Thereafter, briefs were filed by
all parties.
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.'
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby -affirmed.
Upon the entire record in this case, the Board
makes the following findings:
I. THE EMPLOYER
The parties stipulated, and we find, the H. M.
Robertson Pipeline Constructors is a California
corporation which is engaged in commerce within
the meaning of the Act.
IT. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and we find that Laborers
and Local 364, United Association of Plumbers and
Pipefitting Industry, herein called Plumbers, are
labor organizations within the meaning of the Act.
III. THE DISPUTE
A. The Work in Dispute; the Positions of the
Parties
The work in dispute involves the installation of
192 NLRB No. 157
watering, system projects. The Laborers and the
Employer contend that two projects are involved,
one ' located at Colton in .San Bernardino County,
California; and the other°at Desert Hot Springs in
Riverside County, California. The Plumbers, on 'the
other hand, contends that the proceeding should be
limited to the work dispute as set forth in the notice
of hearing; i.e., installation of watering systems in an
unimproved subdivision at Desert Hot ,Springs,
California.
B. Background and Facts of the Dispute
in ;April 1970, the Employer, using asbestos cement
(transite) pipe, of 4-inch to 12-inch diameter, began
installing a water distribution system of about 40,000
feet for a subdivision at Desert Hot Springs,
California. The pipe installation involves laying the
transite pipe in a trench, lubricating the ends of the
sections, and pushing them together. The Employer
assigned the work to its employees represented by the
Laborers, with. which the Employer has a longstand-
ing agreement.
On November 2, 1970, Plumbers, relying on an
agreement executed in October 1970, also claimed
the pipe installation work. The Employer thereupon
requested that two plumbers be sent to the job from
the Plumbers hiring hall. This request was canceled
when Smith, business manager of Laborers, upon
being informed-of the Plumbers claim, threatened
that if the plumbers were, assigned the pipe installa-
tion work the Laborers would close down the job.-At
a meeting the next day, arranged in an effort to settle
the dispute, the parties reiterated their positions, with
Smith repeating his threat of a walkout if plumbers
were put on the job. The Desert Hot Springs job is
still in' progress with laborers doing the, pipe
installation work. '
Sometime after November 2, Smith, on the basis of
information he had received that a Plumbers official
had been on the Employer's job at Colton, threat-
ened the Employer that Laborers would shut down
the Colton job if the Employer used plumbers to lay
pipe. The Colton job is also continuing with laborers
doing the pipe installation work.
C. Contentions of the Parties
The Employer contends that Laborers violated
Section 8(b)(4)(D) of the Act by threatening a
walkout if the Employer assigned the work in dispute
to plumbers, and that there is no agreed-upon
method for the adjustment of the dispute. The
Employer further contends that the work has been
assigned to employees represented by Laborers and
that such work should properly be awarded to
members of Laborers in view of (a) the Board's
LOCAL 1184, SO. CALIF. LABORERS 1079
decision in L & K Contracting Company, Inc., 186
NLRB No. 152; (b) the skills and work involved; (c)
the assignment made by the Employer; (d) the
company and industry practice; (e) efficiency of
operation; (f) the longstanding agreements with
Laborers; and (g) the lack of a binding arbitration
agreement or award. -
Laborers has taken a position basically consistent
with that of the Employer and further notes that
neither union involved has been certified by the
Board as the collective-bargaining representative for
a unit of the Employer's employees.
Plumbers moved to quash the notice of hearing,
contending that there is no reasonable cause to
believe that the Act has been violated -since: (1) the
coercive conduct is, limited to that of Laborers,
whose members have continued to perform the work
in issue, and (2) the parties have provided a means
for the private settlement of this dispute. Finally,
Plumbers argues that, if the dispute is cognizable
under Section 10(k), past Board decisions determin-
ing similar disputes in favor of laborers are distin-
guishable. " Thus, Plumbers claims that, unlike past
cases, here, its contract with the Employer assigns
some of the work to its members. Hence Plumbers
argues that the Board should determine the dispute
in favor of its members.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a 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. In
this regard we find no merit in Plumbers claim that
the proceeding should be quashed on the ground that
the Laborers, whose members are performing the
work, is -the only labor organization to which
coercive conduct may, be attributed. Under settled
Board policy, improper pressure by a union rivaling
that which has been assigned the -work is not
necessarily a prerequisite to the existence of a 10(k)
dispute.' As it-appears from the record that Laborers
threatened to pull its men off the job if the Employer
awarded any work to Plumbers, pursuant to Plumb-
ers claim, there is reasonable cause to believe both
that an object of Laborers action was to force the
Employer to continue to assign all of the disputed
work to individuals represented by Laborers and that
a violation of Section 8(b)(4)(D) has occurred.
1 National Press, Incorporated 186 NLRB No. 26, and Pulitzer
Publishing Company, 187 NLRB No. 35.
2 Newspaper and Maid Deliverers' Union of New York and Vicinity (News
Syndicate Co., Inc.), 141 NLRB 578, 580.
3 International Union of Operating Engineers, Local No. 450, AFL-CIO
(Hydrocarbon Constr. Co.), 190 NLRB No. 20, fn. 1; Local 157, United
Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Also contrary to the contention of Plumbers, in the
circumstances of this case, we are not satisfied that
all parties have agreed to be bound to a voluntary
private settlement of this dispute. The Board has long
declined to find that grievance or arbitration pro-
ceedings not involving all parties to the dispute
constitute an adequate method for adjustment of the
dispute within the meaning of Section 10(k). The
voluntary adjustment must bind all disputing unions
as well as the Employer in order to come within the
meaning of voluntary settlement as set out in Section
10(k).2 The fact that there are two contracts, one
between the Employer and Laborers and one
between the Employer and Plumbers, each providing
for the settlement of disputes under the contract by
arbitration does not support the conclusion that all
parties have agreed to be bound by a single tripartite
arbitration proceeding, or to a means by which a
final and binding adjustment could be reached. We
also find that, as the Employer is not bound to the
National Joint Board, for the reasons set forth in our
previous decisions,3 these procedures do not serve as
a private settlement means sufficient to preclude us
from proceeding to a determination of the instant
dispute. Thus at all times material there was no
method for the voluntary adjustment of the dispute
among the parties. Under-these circumstances, we
find that it will effectuate the policies underlying
Sections 10(k) and 8(b)(4)(D) for us to determine the
merits of the dispute. Accordingly, we find that this
dispute is appropriate for resolution under Section
10(k) of the Act. -
On the basis of the entire record, we find that there
is reasonable cause to believe that a,_ violation of
Section 8(b)(4)(D) has occurred and that the dispute
is properly before the Board for determination.
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.4
The Board has held that its determination in a
jurisdictional dispute is an act of judgment based
upon commonsense and experience, reached by
balancing those factors involved in a particular case.5
The following factors are relevant in making a
determination of the dispute before us:
Industry of the United States and Canada (L & K Construction Co.), 186
NLRB No. 152.
4 N.I R.B. v. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO (Columbia
Broadcasting System), 364 U.S. 573, 586.
5 International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Co.), 135 NLRB 1402.
] 080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Certification, collective-bargaining
agreements, and awards
Neither of the labor organizations involved herein
has been certified by the Board as the collective-
bargaining representative for a unit of the Employ-
er's employees. The Employer has recognized Labor-
ers and has had a longstanding contractual agree-
ment with them which appears to contemplate that
employees represented by Laborers are to perform
the work in dispute. Although Plumbers has also
entered into a collective-bargaining agreement with
the Employer, subsequent to the initiation of the
projects now in dispute, which appears to assign a
portion of the work to employees it represents, the
Employer has not honored this provision of the
agreement. However, we are not satisfied that either
the contractual agreement of Laborers or Plumbers
with the Employer is entitled to controlling weight
for the purposes of our determination .6 Accordingly,
we regard the contracts as a neutral factor which
does not favor either labor organization. Although
we do not consider the National Joint Board's award
binding on the Employer and the Laborers, we do
consider it a factor in determining the proper
assignment of the work in dispute. However, in view
of all the circumstances, we are of the opinion that
the National Joint Board's award should not be
given controlling weight.7
2. Company and area practice
The record indicates that the Employer and other
area employers frequently and regularly use laborers
to perform the type of work herein and that, but for
several exceptions, the Employer has consistently
assigned work similar to that herein to laborers
throughout the rest of Southern California over the
past several years. The record also establishes that
the area practice favors laborers. Therefore, we find
these factors favor assignment of the disputed work
to employees represented by Laborers.
3. Skills, efficiency, and economy
Both Laborers and Plumbers maintain that their
members possess sufficient skills to perform the work
in dispute. There is no showing that the disputed
work requires a degree of skill not. possessed by
laborers. The record establishes that laborers are
quickly able to master the relatively few skills needed
for performing the work in question and that they
e Our decision herein should not be construed as reflecting upon the
merits of the Plumbers contractual claim vis-a-vis the Employer.
have performed the work to the satisfaction of the
Employer.
The record further establishes that the continued
use of laborers is more efficient and economical than
would be the case if the plumbers were to perform
the work in question. Under its present practice, the
Employer uses four laborers to perform the disputed
work. If forced to use plumbers, the Employer would
have to enploy two plumbers and three laborers (or
possibly four laborers). Thus the Employer is now
able to perform the same amount of work with one
or two fewer employees than would be the case if the
plumbers were assigned the work. Moreover, Plumb-
ers claims only the actual installation of the piping
and does not seek to perform the other requisite steps
(such as digging,' backfilling, etc.), hence their
employment would result in additional idle time for
themselves and for the laborers, as each group would
have to wait for the other to complete its respective
duties. This, of course, would be in marked contrast
to the present practice where the laborers have no
idle worktime, but are expected to perform a wide
variety of tasks in succession and without interrup-
tion. Accordingly, we find that this factor favors an
award to employees represented by the Laborers.
Conclusions
Upon the entire record in this case and the
foregoing consideration of all relevant factors, we
conclude that employees represented by Laborers are
entitled to the work in question, and we shall
determine the dispute in their favor. In making this
determination, however, we are assigning the disput-
ed work to the employees of H. M. Robertson
Pipeline Constructors who are represented by Labor-
ers but not to that Union or its members.
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
hereby makes the following determination of dis-
pute:
Employees of H. M. Robertson Pipeline Construc-
tors, who are currently represented by Local 1184,
Southern California District Council of Laborers, are
entitled to perform the work of installing and laying
pipe and other related work at the jobsite in Desert
Hot Springs, Riverside County, California.
7 Cf. Plumbers & Steamfiners Local Union No. 189 (R W. Wander, Inc.),
176 NLRB No. 129.