Plumbers, Local 469

National Labor Relations Board - Board Decisions

Mar 6, 1972

195 N.L.R.B. 700 (N.L.R.B. 1972)

700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers, Steamfitters, and` Refrigeration Local 469
and Precisionaire , Inc., d/b/a Mechanical Balanc-
ing Company and Sheet Metal Workers' Interna-
tional Association, AFL-CIO,-Local 359 . Case 28-
CD-134
March 6, 1972
DECISION AND DETERMINATION OF
DISPUTE
ate the ,policies of the Act to assert jurisdiction in this
proceeding.
II THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that the Plum-
bers and the Sheet Metal Workers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III THE DISPUTE
BY MEMBERS FANNING, JENKINS, AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
charges filed by Precisionaire, Inc., d/b/a Mechanical
Balancing Company, hereinafter called Precisionaire,
alleging a violation of Section 8(b)(4)(D) by the Plum-
bers, Steamfitters, and Refrigeration Local 469, here-
inafter called the Plumbers. Pursuant to notice, a hear-
ing was held on October 19 and 20, 1971, at Phoenix,
Arizona, before Hearing Officer Robert J. Deeny,
Precisionaire, the Plumbers, and the Sheet Metal
Workers', International Association, AFL-CIO, Local
359, hereinafter the Sheet Metal Workers, 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. The Plumbers
filed a motion to quash the proceeding. Precisionaire,
the Plumbers, and the Sheet Metal Workers filed briefs
with the National Labor Relations Board.
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 rulings of the Hearing Officer made at the hear-
ing are free from prejudicial error and are hereby
affirmed.
Upon the basis of the briefs and the entire record in
this case, the Board makes the following findings:
1. THE BUSINESS OF THE COMPANY
Precisionaire is an Arizona corporation located at
222 W. Osborn Road, Suite 304, Phoenix, Arizona,
engaged in air and hydronic balancing; i.e., the adjust-
ment of liquid and airflow through cooling systems. In
the last 12-month period, a representative period of the
Company's business, the Company performed services
outside the State of Arizona valued in excess of $50,-
000. We find, accordingly, that Precisionaire is engaged
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectu-
' Fully named, and signatory to the contract with University Mechanical
Contractors of Arizona, Inc , as United Association of the Plumbing and
Pipe Fitting Industry of the United States and Canada, Local Union No
469
A. Background and Facts of the Dispute
The worksite where the dispute in this proceeding
occurred is the construction site of the new home office
building of the First National Bank of Arizona in Phoe-
nix, Arizona. Henry C. Beck Company is the general
contractor for the building and University Mechanical
Contractors of Arizona, Inc., hereinafter University,
holds the subcontract for the air-conditioning system.
University, in turn, has a collective-bargaining agree-
ment with the Plumbers to perform plumbing, heating,
refrigeration, service, and piping work.' and a subcon-
tract with Precisionaire to balance the air and water
systems. Finally, Precisionaire has a collective-bargain-
ing agreement with the Sheet Metal Workers. We note
here that neither Henry C. Beck Company nor Univer-
sity is a party to this proceeding, nor was either a
participant in or represented at the hearing held in this
matter.
Precisionaire submitted its bid to University in
November 1970. On July 13, 1971, Eugene Strickland,
president of Precisionaire, received a telephone call
from John Powell, general agent of University, which
Precisionaire considers to have been an oral acceptance
of its bid.' On July 14, 1971, Precisionaire sent its
employee, Thomas Ekin, to the worksite. Soon after
Ekin started to do his work an unidentified Plumbers
shop steward interrupted him and, upon learning that
Ekin was a Sheet Metal Worker, told Ekin he was
doing Plumbers work and he would have to stop. Rep-
resentatives of the parties to this proceeding and Uni-
versity were notified of the problem. The business rep-
resentatives of the Unions involved, Dudley Brown of
the Plumbers and Leon Razee of the Sheet Metal
Workers, informally discussed the situation and agreed
that the Sheet Metal Workers should do the work. The
following day Brown went to the worksite to review the
work in question and after reassessing the situation,
based on information not previously available to him
2 University is a member of the Plumbing and Air Conditioning Contrac-
tors of Arizona, which group has a collective-bargaining agreement with
Plumbers Local No. 469 and 741.
3 Later in 1971, University provided Precisionaire with a written contract
with Precisionaire executed on October 12, 1971. This document, part of the
evidence offered and accepted at the hearing, does not bear a signature by
University
195 NLRB No. 127
PLUMBERS , LOCAL 469 701
rescinded his agreement that the work should be done
by the Sheet Metal Workers and claimed the work for
the Plumbers. Several other discussions among the par-
ties to this proceeding and University followed, con-
cerning who should turn the valves regulating the wa-
ter in the air-conditioning system which was being
started up. As a result of these discussions, during
which the alleged threats were made by the Plumbers,
University advised Precisionaire to withdraw its em-
ployees from the worksite until the dispute could be
resolved. Several months later, at which time the dis-
pute had still not been resolved, Precisionaire filed the
charges now before the Board.
B. The Work in Dispute
The notice of hearing issued by the Regional Direc-
tor for Region 28 on September 23, 1971, states that the
work in dispute involves-"The hydronic balancing, the
adjustment of liquid flow through the cooling system,
in connection with air conditioning installation. .....
The record of the hearing shows, more specifically, that
the work in dispute at the worksite on July 14 and 15
involved the turning of valves to regulate the flow of
water through the air-conditioning system. Preci-
sionaire predicated its charges on this description of the
work in dispute and presented evidence to support its
claim for such work. The Sheet Metal Workers agrees
with this description of the work in dispute. In fact, at
one point, the record shows that Dudley Brown, the
Plumbers business agent, testified that the work in dis-
pute concerned the turning of valves.
However, as intimated by the Plumbers at the hear-
ing and based upon the entire record, the work in dis-
pute is further complicated by the circumstances out of
which the work arose; namely, whether the startup of
the air-conditioning system on July 14 was for the pur-
pose of providing temporary cooling or entailed the
hydronic balancing of the system.
Precisionarie contends that the work in dispute is
adjunct to hydronic balancing. The Sheet Metal Work-
ers agrees . To the contrary, the Plumbers contends that
the work on July 14 and 15 was related to temporary
cooling; but even if not, it also claims the work of
turning the valves during hydronic balancing. Thus,
the issue of whether the work relates to temporary
cooling or hydronic balancing is critical to the resolu-
tion of this dispute.'
' This confusion was partially brought about by the Plumbers apparent
lack of preparation for the hearing. Although properly notified of the hear.
ing, the Plumbers failed to appear at the designated time and place and the
hearing was delayed a few hours until the Plumbers arrived with counsel.
We would also reiterate here that University, the contractor for the air-
conditioning system , is not a party to this proceeding and was not repre-
sented at the hearing Thus, we are without the benefit of any light Univer-
sity might shed on this proceeding
The- record shows that Precisionaire went to the
worksite to set up the water system to provide cooling
for the workmen in the building .' Precisionaire- con-
tends that this was work covered under its air and
hydronic balancing subcontract with University. How-
ever, the record suggests that the preconditions for
hydronic balancing were not then present. First, some
30 or more plumbers were working on the installation
of the air-conditioning system on July 14; the installa-
tion had not been completed. Second, Strickland, Preci-
sionaire's president, testified that " ... the system must
be 100 percent complete before we can even start our
work."6 Third, Ekin, Precisionaire's supervisory em-
ployee, testified that ". . . the majority of the time the
air balancing is done first and when the correct amount
of air is being delivered from the fans, then the water
balancing is done .... "' Fourth, there is no suggestion
that the system was ready for air balancing. Finally, the
record shows Precisionaire is a charter member of the
Associated Air and Balancing Council (AABC) and
that this association is set 4 to inspect and check out
the cooling and heating systems in newly constructed
buildings . Singly and in toto, these indications of record
clearly suggest-that the type of work Precisionaire had
subcontracted to perform is to be commenced when the
air-conditioning system has been fully installed. Conse-
quently, based on these facts of record, and for reasons
stated ` infra; we find that Precisionaire was prematurely
called to the worksite for the purpose of performing
hydronic balancing.
5 Thomas Ekin , a supervisory employee of Precisionaire and a member
of the Sheet Metal Workers, was sent to the worksite by Precisionaire to
perform the work in question On direct examination , Ekin testified:
Q. What work did you plan to do on July 14th?
A. Just setting up of the water systems . In fact, if I remember cor-
rectly, it was just to get the correct flow of water through their refrigera-
tion chillers so they could turn them on They didn't care how much
was going through the fan coils-through the coils, they just wanted the
refrigeration set up so they could turn them on because it was hotter
than hell, and the employees-everybody on the job was complaining
about the heat.
Q. And, this would have provided some cooling9
A Some sort of cooling and relief.
On direct examination , Strickland testified:
Q Since your firm does both air and water testing and balancing,
I think the record should show what your technicians or employees do
when they go to a job that has both air and hydronic elements in the
systems
A. Number 1, when we go on the job, we do a general overall mspec-
tion of all components of that job , controls, pumps, fans, filters, make
sure that everything that is specified by the specifying engineer and
architect are installed and ready to operate , because the system must be
100 percent complete before we even start our work [Emphasis sup-
plied.]
On direct examination , Ekin testified:
I would say that the majority of the time the air balancing is done first
and when he correct amount of air is being delivered from the fans,
then the water balancing is done, to take the temperature drops across
the fans and this will show whether-if they jive, if you are moving and
right amount of air and right amount of water, then all these formulas
fall into place and say , "Yes, this is how much cooling you are doing "
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Contentions
Precisionaire predicates its claim for the work in
dispute on its subcontract with University to perform
air and hydronic balancing of the air conditining sys-
tem. Precisionaire contends that the skills of the work
involved; company and industry practice; separate
agreements with University and the Sheet Metal Work-
ers, respectively; the assignment by University; and the
efficiency of its operations support its assignment of the
work to the Sheet Metal Workers.
The Sheet Metal Workers predicates its claim for the
work on its agreement with Precisionaire and on Preci-
sionaire's subcontract with University, respectively. As
such, it views the work in dispute to be the same as does
Precisionaire. In arguments similar to those put for-
ward by Precisionaire, the Sheet Metal Workers con-
tends that company and industry practice; its agree-
ment with Precisionaire; the assignment of work by
University; and the efficient operations of Precisionaire
support its claim.
Contrary to the contentions of Precisionaire and the
Sheet Metal Workers, the Plumbers predicates its claim
on its agreement with University, not on University's
subcontract with Precisionaire. The Plumbers contends
that this agreement provides that it shall install, oper-
ate, and do the preliminary testing of the water-piping
system, including work relative to temporary cooling.
Furthermore, the Plumbers contends that the work
provided for in Precisionaire's subcontract with Uni-
versity cannot be done until the air-conditioning sys-
tem is completely installed and in operation. In support
of this position, the Plumbers says that the air-condi-
tioning system was still under construction in July 1971
and, therefore, the work specified in Precisionaire's
subcontract cannot be involved in this dispute.
the entire record, we conclude that there is reasonable
cause to believe a violation of Section 8(b)(4)(D) has
occurred and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
E. Merits of the Dispute
As the Board stated in J A. Jones Construction Com-
pany,10 the Board is to determine the appropriate as-
signment of disputed work in each case presented for
resolution under Section 10(k) of the Act only after
"taking into account and balancing the relevant factors.
A number of the factors often relied on by the Board
are of little assistance in determining the dispute herein.
There is no certification by the Board applicable here,
nor is there an agreement between the respective Inter-
national Unions to assist in resolving the dispute.
Moreover, the evidence presented by Precisionaire and
the Sheet Metal Workers (skills involved, company and
industry practice , employer preference, and economy
and efficiency of operation , etc.) is related to the issue
of hydronic balancing , which , as indicated earlier,
based on the record of the hearing , does not appear to
be timely raised here.
Consequently , our primary focus here must be to
determine whether the relevant agreements and con-
tracts are consistent with the finding , based on the
record of the hearing , that Precisionaire was prema-
turely called to the worksite to perform hydronic bal-
ancing.
The Plumbers collective -bargaining agreement with
University provides for the operation and testing of
equipment that has been installed under their agree-
ment before the equipment is accepted by the owner or
his agent." This work includes starting up and check-
D. Applicability of the Statute
The charges herein allege a violation of Section
8(b)(4)(D) of the Act. In support of the charges Eugene
Strickland , president of Precisionaire , testified that
John Powell, general agent for University , told him
that the Plumbers threatened to shut him down and,
that he (Powell) could not afford to shut down the
whole project for the minor amount of work in dispute
here. ' This threat of a -strike by the Plumbers is cor-
roborated by the testimony of Thomas Ekin , a super-
visor for Precisionaire, and by Leon Razee, the Sheet-
Metal Workers business representative .' On the basis of
5 Strickland's testimony as to what Powell told him regarding the Plum-
bers threat is hearsay, and was unobjected to at the hearing We are consid-
ering it here for its probative value N.L R.B. v. International Union Operat-
ing Engineers, Local Union No 12, 413 F 2d 705 (C.A 9); State v. Smith,
155 P 2d 622.
Ekm testified that Dudley Brown the Plumbers business agent, said- "It
was their [Plumbers] work and under no circumstances were we [Sheet
Metal Workers] doing it." Further, Razee testified that Brown said to him:
there was no way that he could go along with the Sheet Metal Workers
doing the work, and that he had some 30 people down there just itching to
walk off the job."
10 International Association of Machinists, Lodge No. 1743, AFL-CIO,
135 NLRB 1402.
" This agreement reads , in part:
27. BALANCING OF AIR AND WATER SYSTEMS
27 The Contractor must procure the services of an independent Air
Balance and Testing Agency. The Testing Agency shall be one which
specializes in the balancing and testing of heating, ventilating, and air
conditioning systems, to balance, adjust and test air moving equipment
as herein specified All work by this agency shall be done under direct
supervision of a qualified Heating and Ventilating Engineer employed
by them All instruments used by this agency shall be accurately cali-
brated and maintained in good working order. The air balance agency
shall provide proof of having successfully completed at least five pro-
jects of similar size and scope and shall be a certified member of the
Associated Air Balance Council If requested, the tests shall be con-
ducted in the presence of the Mechanical Engineer responsible for the
project and / or his representative . Air Balance and Testing shall not
begin until system has been completed and is in full working order The
Contractor shall put all heating, ventilating and air conditioning sys-
PLUMBERS , LOCAL 469 703
ing the equipment as well as work related to temporary
cooling required by the owner or his agent until the
equipment is accepted by the owner or his agent. Nei-
ther the Charging Party, Precisionaire, nor the Sheet
Metal Workers presented any evidence to show that the
owner or his agent had accepted the equipment.
Precisionaire's subcontract with University, on the
other hand, provided for balancing of air and water
systems.12 This subcontract specifically provides that
air balancing and testing shall not begin until the sys-
tem has been completely installed and is in full working
order. There is no specific reference with respect to the
timing of hydronic balancing. However, there is a
provision in the subcontract signed by Precisionaire on
October 12, 1971, to the effect that Precisionaire agrees
to comply with the terms and conditions of labor agree-
ments entered into by University and Henry C. Beck
tems and equipment into full operation and shall continue the operation
of same during each working day of testing and balancing The Contrac-
tor shall submit after receipt of Contract, 7 copies of submittal data for
the testing and balancing of the air conditioning, heating and ventilating
systems.
Company with labor unions. The Plumbers agreement
with University is such an agreement.
Accordingly, we find nothing in the applicable agree-
ments and subcontract here in effect which is inconsist-
ent with our finding that Precisionaire was prematurely
called to the worksite for the purpose of performing
hydronic balancing.
Conclusions
We have found that, based on the entire record,
Precisionaire was prematurely called to the worksite
for the purpose of hydronically balancing the air-condi-
tioning system. Accordingly, we shall determine the
existing dispute by deciding that the plumbers are enti-
tled to work relative to providing temporary cooling. In
making this determination, we are assigning the dis-
puted work to employees of University Mechanical
Contractors of Arizona, Inc., who are represented by
the Plumbers, but not that Union or its members. In
view of the determination here, and since we have
found that issues related to hydronic balancing have
not been timely raised, we shall limit our award herein
to the particular controversy that gave rise to the dis-
pute.
27 4 Chilled and Heating Water Systems. The Air Conditioning Con-
tractor shall procure the services of an independent balancing agency
to test, balance, and adjust all chilled water and hot water systems
serving the air conditioning system within the confines of the buildings.
The balance agency shall provide approved instrumentation to conduct
the tests and balance all water flows . Water flows to all cooling coils
shall be adjusted to the specified amounts as indicated
12 In pertinent part:
I WORK COVERED
F. When equipment is being started up or whenever temporary heat
or cooling is required by the owner or his agent, any work or checking
of equipment or operating of equipment shall be performed by Journey-
men working under this Agreement until equipment is accepted by the
owner or his agent.
The filling of all lines and the operation and testing of all equipment
that has been installed under this Agreement before the equipment is
accepted by the owner or his agent, shall come under the jurisdiction
of the parties to this Agreement.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board makes the
following Determination of Dispute:
Employees who are represented by Plumbers,
Steamfitters, and Refrigeration Local 469, are entitled
to perform work related to the startup and operation of
the air-conditioning system to provide temporary cool-
ing in accordance with the collective-bargaining agree-
ment between University and the Plumbers.