Local 189, Plumbers

National Labor Relations Board - Board Decisions

May 26, 1972

197 N.L.R.B. 159 (N.L.R.B. 1972)

LOCAL 189, PLUMBERS 159
Local 189, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada,
AFL-CIO and Kahoe Air Balance Co. and Local
98, Sheet Metal Workers' International Associa-
tion, AFL-CIO. Case 9-CD-248
May 26, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
engaged in the testing and balancing of mechanical
heating, air conditioning, and ventilation systems
used in buildings. During the past year, the Employer
has performed services valued in excess of $50,000
for firms within the State of Ohio who in turn
purchased goods and materials valued in excess of
$50,000 directly from sources outside of Ohio.
During the same period of time, the Employer had a
gross volume of business in excess of $500,000.
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.
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Kahoe Air Balance Co., herein
called the Employer or Kahoe, alleging that Local
189, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, herein called
Pipefitters, had violated Section 8(b)(4)(D) of the
Act. The charge alleges, in substance, that the
Pipefitters, by threats and coercion, violated the Act
in that one of the purposes of such conduct was to
force the Employer to assign certain work to its
members 'rather than to members of Sheet Metal
Workers' International Association, AFL-CIO,
Local 98, herein called Sheet Metal Workers.
Pursuant to a notice, a hearing was held in
Columbus, Ohio, before Hearing Officer Robert P.
Hunter on February 11, 1972. The Employer and
Respondent Pipefitters appeared and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues.' Thereafter, the Employer and Respon-
dent Pipefitters filed briefs. Pipefitters also filed a
Supplemental Brief, and the Employer filed a brief in
answer thereto. The briefs 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
authority in this proceeding 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:
1. THE BUSINESS OF THE EMPLOYER
The Employer, an Ohio corporation with principal
office and place of business in Eastlake, Ohio, is
' Sheet Metal Workers, to whom Employer assigned the work in dispute
subject to their bargaining agreement, did not appear at the hearing
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Pipefitters
and Sheet Metal Workers are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer has been in the business of testing,
adjusting, and balancing airconditioning, heating,
and ventilating hot water and chilled water systems
since 1959. The Employer sells no product other than
service and does no installation or design engineer-
ing.
The Employer is a member of the Associated Air
Balance Council, an association formed in 1965 by a
number of companies engaged in the independent
testing and balancing of mechanical systems. In
1969, a national agreement was signed between the
Council and the Sheet Metal Workers International
Association. Employer Kahoe signed both the master
agreement and the amendment tailoring it to the test
and balance industry, and the Sheet Metal Workers
International and Local 98 thereof independently
signed the agreement and amendment. For the past 3
years, the Employer's technical employees have been
affiliated with the Sheet Metal Workers Association
pursuant to this 1969 national agreement and
amendment.
Huffman-Wolfe Company, a mechanical contrac-
tor belonging to the Mechanical Contractors Associ-
ation of Central Ohio, Inc., has a contract to install
the mechanical systems to be used in all buildings
located at the Ashland Chemical Company jobsite in
Dublin, Ohio. Pursuant to its performance obliga-
tions under this contract, Huffman-Wolfe subcon-
tracted the testing, balancing, and adjusting of the
water system installed in the administration building
at the Ashland Chemical jobsite to Employer Kahoe.
197 NLRB No. 17
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kahoe began performing as per its subcontract with
Huffman-Wolfe and at all times has used its own
employees, members of Local 98 of the Sheet Metal
Workers, to perform the disputed work.
On November 11, 1971, two of Kahoe's employees,
members of Sheet Metal Workers, were working at
the Ashland Chemical administration building when
James Ely, president of Respondent Pipefitters,
interrupted them. Ely informed Steiskal, one of the
Kahoe employees, that a pipefitter must work with
him on the water balance and, according to the
testimony of Steiskal, insisted that Steiskal would not
adjust the valves on the Ashland Chemical job while
the fitters were present. After calling his Sheet Metal
Workers business agent for instructions, Steiskal
returned to work but later left the job, allegedly
because of Ely's persistence in asserting that the
adjustment of the valves would not be done by
Steiskal while the fitters were present.
The disputed work on the Ashland Chemical
administration building was later completed by
Kahoe's employees represented by Sheet Metal
Workers, but Huffman-Wolfe refused to grant
Kahoe the subcontract for the research building at
that jobsite unless members of Respondent Pipefit-
ters would be used.
B. The Work in Dispute
The work in dispute involves the assignment of the
testing and balancing of water systems, including the
adjustment of valves necessary to such testing and
balancing, performed by Employer Kahoe in Ohio,
including that performed at the Ashland Chemical
Company jobsite located in Franklin County, Dub-
lin, Ohio.
C. Contentions of the Parties
Respondent Pipefitters contends that the disputed
work involves only the adjustment of the water
system and that there is no dispute for the following
reasons: (1) Employer Kahoe voluntarily submitted
the instant dispute for resolution by the National
Joint Board for the Settlement of Jurisdictional
Disputes, thereby agreeing to a voluntary method of
settling the dispute; (2) Respondent effectively
renounced its claim to the disputed work within the
meaning of the Safeway rule,2 thereby aborting 10(k)
proceedings. Respondent Pipefitters further contends
that, if the award of any work is forthcoming, such
award should not apply to any jobsite other than that
located at the Ashland Chemical Company.
It is Employer Kahoe's position that: (1) it has
2 Highway Truckdrivers & Helpers, Local 107 (Safeway Stores, Incorporat-
ed), 134 NLRB 1320, N L R B v. Plasterers Local Union No 79, Operative
Plasterers' and Cement Masons' International Association, AFL-CIO [South-
merely notified the Joint Board of the existence of a
dispute and has not submitted the dispute for
resolution; (2) Respondent continues to claim the
work in dispute; (3) similar job disputes have arisen
between Employer Kahoe and Respondent Pipefit-
ters, as well as other Ohio locals of Pipefitters
International, and there is reason to believe that
identical work disputes will arise.
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 reasonable cause to
believe that Section 8(b)(4)(D) has been violated. The
charge herein alleges such a violation. The facts show
that the Employer assigned the work to its employ-
ees, who are represented by the Sheet Metal
Workers. The Pipefitters demanded that the Employ-
er take the work away from members of the Sheet
Metal Workers and assign it to its members. As there
is some evidence that Respondent Pipefitters has
engaged in improper inducements to enforce its
demands for assignment of the work, we find there is
reasonable cause to believe a violation of the Act has
occurred.
With respect to the disclaimer by Respondent
Pipefitters, such disclaimer was not made to the
Employer and does not purport to disclaim any
disputed work other than that at the administration
building of the Ashland Chemical jobsite. Moreover,
the Respondent, in any event, does not appear to
have disclaimed the task of turning valves to control
the flow of water, performed as a part of the testing
and balancing procedure. Such disclaimer, therefore,
does not effectively alter the nature of the jurisdic-
tional dispute.
The Employer's letter to the National Joint Board
for the Settlement of Jurisdictional Disputes did not
submit the dispute to the Joint Board for resolution,
but merely notified the Joint Board of the dispute's
existence. In such circumstances we do not view it as
binding the Employer to the Joint Board procedures.
Further, the record fails to show that the Employer is
a party to a collective-bargaining agreement with
either of the labor organizations here involved, or to
a contract with Huffman-Wolfe, by which it has
agreed to be bound by the Joint Board procedures.3
As we find that the Employer is not bound, it is
unnecessary to consider whether the Sheet Metal
Workers and the Pipefitters are bound by the Joint
Board procedures.
It is thus clear from the foregoing, and we find, that
western Construction Co.], 404 U.S. 360.
3 Local 395, Bridge, Structural and Ornamental Iron Workers, AFL-CIO
(Telander Bros Contractors, Inc), 196 NLRB No 19
LOCAL 189, PLUMBERS 161
at the time of the instant dispute there did not exist
any agreed-upon or approved method for the
voluntary adjustment of the dispute to which all
parties to the dispute were bound. Accordingly, the
matter is properly before the Board for determina-
tion 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 all relevant factors
involved. The following factors are relevant in
making a determination of the dispute before us.
1. Certifications and collective-bargaining
agreements
There is no Board certification determining the
bargaining representative for the employees assigned
to perform the work in dispute. None of the labor
organizations involved herein has been certified by
the Board as the collective-bargaining representative
for a unit of Employer's employees.
At no material time herein has the Employer been
a party to a collective-bargaining agreement with the
Pipefitters. The Employer has been a party to a
collective-bargaining agreement with the Sheet Metal
Workers since 1969.4
Respondent Pipefitters is a party to a collective-
bargaining agreement with the Mechanical Contrac-
tors Association of Central Ohio, Inc., of which
Contractor Huffman-Wolfe is a member.5
2. Employer's assignment and past practice
Pursuant to article I, section 2, of the Sheet Metal
Workers Agreement, which provides that members
of the Sheet Metal Workers have jurisdiction over,
inter alia, ". . . adjustment of water flow valves as
pertains to hydronic balancing, ..." the Employer
assigned the work here involved to its employees
represented by the Sheet Metal Workers.
Further, since 1969 the Employer has assigned such
work exclusively to its employees represented by the
Sheet Metal Workers. Prior to that time, the
Employer trained and used its own technicians, who
were not affiliated with any union.
4 Art I, sec 2 , of the Amendments to Standard Form Agreement of
Sheet Metal Workers International Association and Associated Air Balance
Council , to which both the Employer and Local 98, Sheet Metal Workers,
are signatories , specifically covers the work in dispute
Signatories to this agreement shall perform testing and balancing of
all air handling equipment and duct work , including hydronic
balancing, pneumatic and electric control adjustment . . . adjustment
of water flow valves as pertains to hydronic balancing , and field sound
testing.
5 Appendix A, Para 33 , Agreement By and Between Mechanical
3. Relative skills, efficiency, and economy of
operations
The Employer strongly favors an award to its
employees represented by the Sheet Metal Workers
because of their skills and training and the resulting
efficiency and economy of operations.
As part of the Sheet Metal Workers agreement, the
Employer trains apprentices in every phase of the
total process of testing, balancing, and adjusting both
air and water systems. Respondent Pipefitters,
however, while having some training in balancing
and adjusting water systems, does not claim compe-
tence or performance of balancing air systems. Due
to the integrated nature of air and water balancing, it
is not efficient for one man to be skilled in the air
balancing stage and one to be skilled in water
balancing only. Further, members of Pipefitters have
had no experience in preparing the extensive balance
reports which are part of the Employer's operation,
now performed by its employees represented by the
Sheet Metal Workers.
Thus, if required to assign this work to Respondent
Pipefitters, the Employer would bear the burden and
expense of training additional employees to properly
perform the work. Additionally, the Employer would
be forced to lay off sheet metal workers in order. to
hire pipefitters.
Specifically, to require the Employer to award the
turning of the valves, one small but integral facet of
system balancing, to the pipefitters would result in
unwarranted inefficiency and increased construction
costs. Indeed, if a pipefitter must be hired to turn the
valves during the Employer's testing, balancing, and
adjusting of the water system, the pipefitter would
spend a considerable, if not the greater , portion of his
time waiting for the sheet metal worker balance
technician to instruct him when and how much to
turn each valve, a process which often requires
repeated adjustments of each such valve and repeat-
ed checks and calculations for the result of each such
adjustment. Obviously then, such' a situation in
which one employee stands by until called on to
perform one relatively minute task-at the direction
of another employee capable of performing that task
as well as. the complete balancing function, would
needlessly waste time and create expense. We are,
therefore, persuaded that the factors of skill and
Contractors Association of Central Ohio, Inc and United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, Local 189, under which Pipefitters claims
jurisdiction over the disputed work , does not specifically refer to such work
It provides , in pertinent part, for the performance by the Pipefitters of the
following work.
All piping, setting and hanging of all units and fixtures for air-
condit ioning, cooling, heating . . by any method , and the charging
and testing, servicing of all work after completion.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
training, efficiency and economy of operations
dictate the award of the work to the Employer's own
employees, who are represented by the Sheet Metal
Workers.
Conclusion
Upon the entire record in this proceeding and after
full consideration of all of the relevant factors, in
particular the contractual relationship between the
Employer and the Sheet Metal Workers, the Employ-
er's practice, the nature of the work involved, the
skills and training required, and efficiency and
economy of operations, we conclude that the
employees of the Employer who are represented by
the Sheet Metal Workers are entitled to the work in
question, and we shall determine the dispute in their
favor. In making this determination, we award the
work to the employees of the Employer who are
represented by the Sheet Metal Workers but not to
that Union or its members.6
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.
6 The Employer urges that a broad order issue determining that the
Employer has the right to use sheet metal workers , rather than pipefrtters,
whenever the testing, balancing , and adjusting of water systems is done in
Ohio However , as the record will not support an order of such scope, we
shall limit our award to the administration building and research building at
1. Employees employed by Kahoe Air Balance
Co., who are represented by Local 98, Sheet Metal
Workers' International Association, AFL-CIO, are
entitled to perform the work in dispute which
involves the testing, balancing, and adjusting of
water systems, including the adjusting of valves
necessary to such testing and balancing, in both the
administration building and research building at the
Ashland Chemical Company jobsite located in
Franklin County, Dublin, Ohio.
2. Local 189, United Association of Journeymen
and 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 Kahoe Air
Balance Co., Eastlake, Ohio, to assign the above
work to pipefitters represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 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 Kahoe
Air Balance Co., by means proscribed by Section
8(b)(4)(D), to assign the work in dispute in a manner
inconsistent with the above determination.
the jobsite where the instant dispute arose Local 395, Bridge, Structural and
Ornamental Iron Workers, AFL-CIO (Telander Bros Contractors, Inc ), 196
NLRB No 19, Laborers' International Union of North America Local 935,
AFL-CIO (Interstate Drywall, Inc), 191 NLRB No 93