Local No. 89, Laborers

National Labor Relations Board - Board Decisions

Aug 27, 1973

205 N.L.R.B. 916 (N.L.R.B. 1973)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 89, Laborers' International Union of North
America, AFL-CIO and Riverside Sprinklers, Inc.
and Plumbers Local 345, United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Cana-
da, AFL-CIO. Case 21-CD-328
August 27, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
charges filed by Riverside Sprinklers , Inc., herein
called the Employer , alleging that Local No. 89, La-
borers' International Union of North America, AFL-
CIO, herein called the Laborers , has violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requiring
the Employer to assign certain work to employees
represented by the Laborers, rather than to employees
represented by Plumbers Local 345, United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and
Canada , AFL-CIO, herein called the Plumbers. A
duly scheduled hearing was held before Hearing Offi-
cer Robert L. Bernier between March 22 and May 11,
1973. 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 Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The Board has reviewed the Hearing Officer's rul-
ings 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 BUSINESS OF THE EMPLOYER
Riverside Sprinklers, Inc., with an office in Escon-
dido, California, is a California corporation engaged
in the business of landscaping and the installation of
irrigation or sprinkler systems in Southern California.
Annually, its gross revenue is in excess of $500,000
and it performs services valued in excess of $50,000
for customers located within the State, who annually
purchase or receive goods, materials, and supplies va-
lued in excess of $50,000 directly from suppliers locat-
ed outside the State of California. 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.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Labor-
ers and the Plumbers are labor organizations within
the meaning of Section 2(5) of the Act.
III THE DISPUTE
A. Background and Facts
Since September 1970, the Employer has been a
subcontractor for Avco Community Developers, Inc.,
herein called Avco, at the Rancho Bernardo-Oaks
North condominium housing development in San Di-
ego, California, performing landscaping work' and
installing lawn sprinkler systems. The Employer's first
step in installing a sprinkler system is to mark up the
area according to a plan, from the point of the water
source, to indicate where the trenches are to be dug
and to stake out locations for sprinkler heads. A me-
chanical digger is used to make trenches which are
then cleaned out by hand-shovels. A main pipeline is
installed to which is attached lateral pipelines, from
which riser pipes are installed. Water valves and
sprinkler heads are attached to the risers. After the
system is activated or tested, the trenches are covered
up.
The Employer has been in contractual relations
with the Plumbers since March 1970 and with the
Laborers since September 1970.2 It uses crews of
plumbers and laborers to perform virtually all of the
foregoing work, except for an employee who is a
member of a local of the Operating Engineers Inter-
national Union to operate a mechanical trench digger,
whose work is not in dispute. Since its inception at the
Rancho Bernardo jobsite, the Employer has assigned
the laying out of the sprinkler system and the pipe-
work including the installation of valves and sprinkler
heads to plumbers and the remaining functions to
i There is no dispute concerning the landscaping work, which is performed
by employees who are members of the Laborers
2 The Employer and the Laborers are signatories to a short form agreement
which adopts the terms and conditions of employment for laborers as con-
tained in a master labor agreement between Associated General Contractors
of San Diego (in which Avco is a member) and San Diego County Building
and Construction Trades Council, AFL-CIO, and Teamsters Local 36 In
addition to construction work engaged in by laborers, the master agreement
covers carpenters, cement masons, piledrivers, and teamsters; it does not
cover plumbers
205 NLRB No. 147
LOCAL NO. 89, LABORERS
laborers, who occasionally have also performed some
pipework.
In January 1972, representatives of the Laborers
and the Plumbers met with the Employer to discuss
prior complaints by the Laborers that its members
should be assigned all pipework , but this issue was not
resolved . On January 17, 1973, Joe Alcoser, the La-
borers business agent, visited the jobsite and told
John Weber , the Employer 's president , that he would
shut down and picket the job unless all of the sprinkler
system work was assigned to laborers and the plum-
bers were removed from the job . Following this con-
versation, Alcoser complained to Kelly Schroeder,
Avco's director of construction , that plumbers were
performing pipework in violation of the master labor
agreement . Thereafter , Schroeder persuaded Weber
to use laborers for this work . Weber removed the
plumbers from the jobsite and continued thejob with
laborers. The instant unfair labor practice charge was
filed by the Employer on February 13, 1973.3
B. The Work in Dispute;
Contentions of the Parties
As noted above , the work in dispute is the laying
out of a plan for the installation of lawn sprinkler
systems, including the installation of pipe , valves, and
sprinkler heads. The Laborers claims the work on the
basis of its contract with the Employer and other
factors. The Plumbers also relies on its contract and
similar factors . The Employer is in accord with the
position of the Plumbers.
C. Applicability of the Statute
The charge which was duly investigated by the Re-
gional Director alleges a violation of Section
8(b)(4)(D) of the Act. The Regional Director was sa-
tisfied on the basis of such investigation that there was
reasonable cause to believe that a violation had been
committed and therefore that a hearing should be
held in accordance with Section 10(k) of the Act. On
the basis of the entire record, including the Laborers
threat to shut down the job and engage in picketing
unless its work assignment demands were met, we
find there is reasonable cause to believe that a viola-
tion of the Act has occurred and that the dispute is
properly before the Board for determination .4
3 On March 2, 1973, in a proceeding pursuant to Sec 10 of the Act, the
U S District Court for the Southern District of California issued a temporary
injunction enjoining the Laborers from forcing or requiring the Employer to
assign the disputed work to laborers rather than to plumbers
° The Laborers argued that the Board must find as a fact that a violation
has occurred before it proceeds with a determination of a dispute We find
no ment in this contention , as the Supreme Court has approved the Board's
practice of a finding of "reasonable cause to believe" as sufficient to proceed
917
D. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to various relevant factors.
1. Certification and
collective-bargaining contracts
Neither the Laborers nor the Plumbers has been
certified by the Board as the collective-bargaining
representative of any employees involved in this dis-
pute. The Plumbers contracts with the Employer have
specifically covered pipework in connection with the
installation of lawn sprinkler systems whereas only
the Laborers most recent renewal of its contract with
the Employer has specifically referred to pipework
relating to such systems.
2. Company and area practice
The record reveals that regardless of the geographi-
cal location of a job, the Employer has always as-
signed the disputed work to plumbers. In the San
Diego area, where the instant dispute arose, both the
Laborers and the Plumbers introduced evidence that
each is signatory to agreements with numerous firms
in the area who install sprinkler systems. While this
evidence shows that the Laborers has a larger number
of agreements than the Plumbers in the area with
firms that use laborers for "pipework," it does not
indicate the extent of such work as it relates to all of
the disputed work involved herein.
3. Skills, economy, and
efficiency of operation
The requisite skills to perform the disputed work
include the ability to read plans, to fit and fabricate
pipe, and to install valves and sprinkler heads. Some
knowledge of electricity is also required to hook up
the sprinkler system to a control panel for automatic
operation of the system. The plumbers have superior
skills to perform these functions and their apprentices
have access in San Diego to a 4-year training program
operated by the Plumbers, which requires schooling
after 6 months on the job. Although some of the
Employer's laborers have received on-the-job training
to join pipes, they have not acquired the experience in
performing the other tasks involved. After the instant
dispute arose and the Employer removed the plum-
bers from the jobsite, the employees referred by the
in a 10(k) proceeding . N L R B v. Radio and Television Broadcast Engineers
Union (Columbia Broadcasting System), 364 U S 573 (1961) Nor do we find
ment in the Laborers contention that the proceeding herein is "futile" be-
cause Avco, the general contractor , is not a party thereto
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers to replace them were found by the Employer
not to be as capable of performing the disputed work.
We are persuaded that the factors of skill, economy,
and efficiency of operation favor the award of the
work to employees who are members of or are repre-
sented by the Plumbers.
Conclusion
Upon the entire record in this proceeding and after
full consideration of all the relevant factors, in partic-
ular the Employer's assignment and past practice, the
nature of the work involved, and the skills required,
we conclude that the employees of the Employer who
are represented by the Plumbers 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 Plumbers, but not to that union or
its members. Our present determination is limited to
the dispute which gave rise to this proceeding.'
5 The Plumbers requested that the Board issue an areawide award on the
basis that the Laborers "intends to claim all the piping work " performed by
employers in the San Diego area We hereby deny the request for there is
insufficient evidence to warrant so broad an award
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 pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees employed by Riverside Sprinklers,
Inc., who are currently represented by Plumbers Lo-
cal 345, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO, are entitled
to the laying out of a plan for the installation of lawn
sprinkler systems, including the installation of pipe,
valves, and sprinkler heads at the Rancho Bernardo-
Oaks North condominium housing development in
San Diego, California.
2. Local No. 89, Laborers' International Union of
North America, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require Riverside Sprinklers, Inc., to assign the
above work to laborers represented by it.
3. Within 10 days from the date of this Determina-
tion of Dispute, Local No. 89, Laborers' International
Union of North America, AFL-CIO, shall notify the
Regional Director for Region 21, in writing, whether
or not it will refrain from forcing or requiring River-
side Sprinklers, Inc., by means proscribed by Section
8(b)(4)(D) of the Act, to assign the disputed work to
laborers represented by it rather than to plumbers
represented by the Plumbers.