Plumbers Local 201 (Shaker, Travis)

National Labor Relations Board - Board Decisions

Jul 31, 1985

271 N.L.R.B. 650 (N.L.R.B. 1985)

PLUMBERS LOCAL 201 (SHAKER, TRAVIS)
Local 201, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting In-
dustry of Dutchess and Ulster Counties, New
York, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL-
CIO1 and Sheet Metal Workers International
Association, Local 38, AFL-CIO and Shaker,
Travis & Quinn, Inc. and Robert M. Saltzstein
and Sheet Metal Workers International Asso-
ciation, Local 38, AFL-CIO, Party in Interest
Sheet Metal Workers International Association,
Local 38, AFL-CIO and Robert M. Saltzstein
and Local 201, United Association of Journey-
men and Apprentices of the Plumbing and Pipe-
fitting Industry of Dutchess and Ulster Coun-
ties, New York, United Association of Journey-
men and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and
Canada, AFL-CIO, Party in Interest. Cases 3-
CD-548, 3-CD-549, 3-CD-550, and 3-CD-
552
31 July 1985
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
The charge in Case 3-CD-548, a Section 10(k)
proceeding, was filed 27 December 1982 by Sheet
Metal Workers Local 38 alleging that the Respond-
ent, Plumbers Local 201, violated Section
8(b)(4)(ii)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object
of forcing the Employer to assign certain work to
employees the Respondent represents rather than
to employees represented by the Sheet Metal
Workers. The charges were filed in Cases 3-CD-
549 and 3-CD-550, respectively, by the Employer
29 December 1982 and by Robert M. Saltzstein, as
counsel for the Employer, 12 January 1983 alleging
essentially the same violations as set forth in Case
3-CD-548. The charge in Case 3-CD-552 was
filed by Saltzstein as counsel for the Employer 28
January 1983 alleging that the Sheet Metal Work-
ers threatened the Employer within the meaning of
Section 8(b)(4)(ii)(D) in order to secure assign-
ments of the disputed work for employees repre-
sented by it and to avoid reassignment of the work
to employees represented by the Plumbers. An
order consolidating all four cases and a notice of
hearing was issued 3 February 1983. The hearing
was held on 8 separate days between 25 January
through 14 April 1983 before Hearing Officer
Christopher G. Roach.
I Respondent Plumbers name appears as amended at the hearing.
271 NLRB No. 102
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
1. JURISDICTION
The Employer, a New York corporation, is en-
gaged in mechanical contracting at its facility in
Poughkeepsie, where it annually derives gross rev-
enues from its operation in excess of $50,000 and
purchases goods, materials, and supplies valued in
excess of $50,000 which are shipped to its Pough-
keepsie, New York location directly from points
outside the State of New York. The parties stipu-
late, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that Plumbers Local 201 and
Sheet Metal Workers Local 38 are labor organiza-
tions within the meaning of Section 2(5) of the
Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Prior to the relevant events herein the Employer
was awarded two subcontracts from different gen-
eral contractors of International Business Machines
(IBM) at its East Fishkill, New York location. The
work involved the fabrication and installation of
boxes and enclosures made of plastic "PVC" or
sheetmetal (also referred to as distribution boxes)
used to enclose pipes to contain possible spills of
corrosive or caustic liquids at two jobsites known
as the raised floor job and the Knapp job. These
boxes are commonly used to prevent the spilling of
chemicals onto people or expensive equipment. In
December 1982 the Employer assigned the fabrica-
tion of 250 boxes and 2 "p-trap" enclosures to the
employees in its sheetmetal shop who were cov-
ered by a collective-bargaining agreement with the
Sheet Metal Workers. The contract covered the
period of I July 1982 through 30 June 1983.
The Employer assigned the installation and erec-
tion of these boxes and p-trap enclosures to the em-
ployees who were covered by a collective-bargain-
ing agreement with the Plumbers. The contract
covers the period of I July 1982 through 30 June
1984.
On 16 December 1982 Thomas Shaker, president
of the Employer, had a conversation with Lou
Quarisimo, business manager of the Plumbers, who
requested that the fabrication of the boxes be as-
signed to the Plumbers. When Shaker replied that
650
PLUMBERS LOCAL 201 (SHAKER, TRAVIS)
the assignment of the work would not be changed,
Quarisimo replied, "Well, maybe we won't put in
the boxes." When Shaker noted that the installation
of the boxes could be performed by members of
the Sheet Metal Workers Quarisimo stated that the
members of the Plumbers might refuse to connect
the necessary piping.
On 3 January 1983 Charles Fitzpatrick, a plumb-
ing foreman for the Employer and a member of the
Plumbers, had a conversation with Melvin Tiger,
the Employer's engineer, regarding the design of
the two p-trap enclosures required for the Knapp
job. Tiger prepared a diagram of the enclosures
and informed Fitzpatrick that a member of the
Sheet Metal Workers would fabricate them in the
Employer's tinshop. Rather than wait to install the
enclosures fabricated in the tinshop, Fitzpatrick in-
formed his general foreman, George Galucci (also
a member of the Plumbers), that he was going to
make the enclosures on the jobsite and assigned the
task to two plumbers. When the boxes fabricated in
the tinshop were delivered to the jobsite, they
were not installed by members of the Plumbers.
The enclosures could not be located at the site for
about a week and were finally discovered in a pipe
fittings storage area. Meanwhile, the plumbers
erected two enclosures which they had fabricated
at the jobsite. Fitzpatrick admitted that he did not
inform Tiger that he was not going to install the
enclosures which had been fabricated in the tin-
shop.
On 22 December 1982 the U.S. District Court
for the Southern District of New York issued a
temporary restraining order preventing the Em-
ployer from assigning the fabrication of the boxes
on the raised floor job to the Sheet Metal Workers.
The court also ordered tripartite arbitration be-
tween the Employer and the two Unions over the
raised floor job dispute. The temporary restraining
order expired 2 January 1983 following a promise
by the Employer to give Robert Cantore, attorney
for the Plumbers, 48 hours' advance notice before
fabricating the boxes. On 10 January 1983, after the
Employer assigned the fabrication of the two en-
closures on the Knapp job to the Sheet Metal
Workers, Cantore informed Robert Saltzstein, at-
torney for the Employer, that the Plumbers re-
served the right not to install prefabricated materi-
al. Cantore further related that the Employer
"hasn't even seen a problem like he's going to see
. . . that from today on, there is no more past
practice," and that the Employer "is going to see
problems now."
On 30 December 1983 the Sheet Metal Workers
threatened via mailgram to "take all legal means of
protecting its jurisdiction, including picketing"
unless the Employer honored its work assignment
of the fabrication of boxes on the raised floor job
to it.
In February 1983 IBM canceled its contract for
the raised floor job. On 7 April 1983 a revised con-
tract was awarded to Mechanical Construction
Corp. Mechanical requested subcontractor bids to
fabricate and install distribution boxes and the Em-
ployer submitted a bid for the raised floor subcon-
tract.
On 20 June 1983 the Court of Appeals for the
Second Circuit vacated the district court's order
compelling tripartite arbitration.
B. Work in Dispute
The work in dispute herein is the fabrication of
sheetmetal and PVC plastic distribution boxes
made for the raised floor construction project at
the International Business Machines, Inc., East
Fishkill, New York facility.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that the Plumbers has violated
Section 8(b)(4)(ii)(D) of the Act, and that the
record supports its assignment of the work in dis-
pute to its employees represented by the Sheet
Metal Workers.
Plumbers Local 201 contends that there is no ju-
risdictional dispute since IBM canceled the con-
tract with the Employer. It asserts further that it
had adequately disclaimed the work in question.
The Employer also contends that there is reason-
able cause to believe that the Sheet Metal Workers
has violated Section 8(b)(4Xii)(D) of the Act by
threatening to strike to prevent the Employer from
assigning the work in dispute to employees repre-
sented by the Plumbers.
Sheet Metal Workers Local 38 contends that the
Employer's decision to assign the fabrication of the
boxes to its members was correct.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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)(ii)(D) has been
violated.
As set forth above the record shows that the
Plumbers threatened to use whatever lawful means
available to force the Employer to assign the work
to it, refused to install the prefabricated contain-
ment boxes, and interfered with the completion of
the disputed work because the Employer refused to
assign the work in dispute to employees represent-
ed by the Plumbers. The Plumbers position as
651
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated at the time of the work stoppage was that
the Employer was taking work away from mem-
bers of the Plumbers who work for mechanical
contractors and that members of the Plumbers
should be doing containment box fabrication work.
Counsel for the Plumbers declined to disclaim the
disputed work because he asserted that the collec-
tive-bargaining agreement mandated that the "erec-
tion" of containment or distribution boxes be as-
signed to its members. Counsel contended (appar-
ently based on a dictionary interpretation of a por-
tion of the agreement) that the word "erection"
was synonymous with the word "fabrication," and
thus the fabrication of such boxes must be pe-
formed by members of the Plumbers. Based on the
foregoing undisputed facts and the record as a
whole, we find that an object of the Plumbers
work stoppage and threats was to force or require
the Employer to assign the disputed work to indi-
viduals represented by the Plumbers. Accordingly,
we find that reasonable cause exists to believe that
the Plumbers violated Section 8(b)(4)(ii)(D) of the
Act.
The record also shows that the Sheet Metal
Workers asserted a claim to the work in dispute
and threatened to take all legal recourse necessary,
including picketing, to secure the assignments of
the work to employees represented by the Sheet
Metal Workers. A mailgram to this effect was dis-
patched by the Sheet Metal Workers to the Em-
ployer 30 December 1982. Based on the foregoing
undisputed facts and the record as a whole, we find
that an object of the Sheet Metal Workers threats
was to force or require the Employer to assign the
disputed work to individuals represented by the
Sheet Metal Workers. Accordingly, we find that
reasonable cause exists to believe that the Sheet
Metal Workers violated Section 8(b)(4)(ii)(D) of
the Act. At no time during the hearing or subse-
quent thereto did the Sheet Metal Workers dis-
claim the work in dispute.
The Board has held that an effective renunci-
ation of the disputed work resolves the jurisdiction-
al dispute. On finding an effective disclaimer of the
work at the sites where the dispute arose and on
finding no evidence from which it could reason-
ably be inferred that the respondent union intended
to secure the disputed work as future jobsites, the
Board has ordered that the notice of hearing be
quashed.2 However, here counsel for the Plumbers
refused to disclaim the disputed work at the hear-
ing3 and insisted that Plumbers would use what-
2 Laborers Local 66 (Georgia-Pocific), 209 NLRB 611 (1974), and Sheet
Metal Workers Local 55 (Gilbert L. Phillips, Inc.), 213 NLRB 749 (1974).
3 The Board has repeatedly refused to give effect to a hollow disclaim-
er, that is, a disclaimer presented for the purpose of avoiding an authori-
ever legal means available to secure the work for
its members. (This included seeking a district court
temporary restraining order and an order to
compel arbitration.)4
The Plumbers further argues that there is no ju-
risdictional dispute inasmuch as the work in dispute
has been completed in part and the remainder will
no longer be performed by the Employer since
IBM terminated its contract and accepted another
company's bid to perform the work. The Board
frequently has held that the completion of the
work involved does not render a jurisdictional dis-
pute moot where there is evidence of similar dis-
putes between the parties in the past or nothing to
indicate that such disputes will not occur in the
future." Here the record indicates that the Employ-
er bid on a subcontract to perform the work in dis-
pute for the new prime contractor. In light of the
above and the Plumbers ineffective disclaimer we
find that the instant case is not moot.
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4) (ii)(D) has occurred in the
consolidated cases and that there exists no agreed
method of 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.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative 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 bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
tative decision on the merits. See, e.g., Plumbers Local 703 (Airco
Carbon), 261 NLRB 1122 (1982), where the Board gave no effect to a
disclaimer tendered on the final day of the hearing noting that most of
the work had been completed and there was little left to disclaim. Here,
counsel for the Plumbers, after concluding that the work had been com-
pleted as far as it concerned the Employer, offered to disclaim the work
if it were "technically necessary" in an attachment to its posthearing brief
dated 2 months after the final day of the hearing. We conclude that such
an attempted disclaimer is indeed hollow and no disclaimer at all.
The Second Circuit Court of Appeals vacated the order compelling
tripartite arbitration 20 June 1983.
5 See, e.g., Sheet Metal Workers Local 541 (Kingery Construction), 172
NLRB 1046, 1049 (1968), and Sheet Metal Workers Local 9 (Elward. Inc.),
250 NLRB 724, 729 (1980).
652
PLUMBERS LOCAL 201 (SHAKER, TRAVIS)
1. Certification and collective-bargaining
agreements
Neither of the labor organizations herein in-
volved has been certified as the collective-bargain-
ing representative for a unit of the Employer's em-
ployees nor is there evidence indicating that a
Board certification covers the work in dispute.
The collective-bargaining agreement between the
Employer and the Sheet Metal Workers provides
that the Union is the exclusive representative of
those employees of the Employer who are engaged
in the "manufacture, fabrication, assembling, han-
dling, [and] erection . . . of all ferrous or nonfer-
rous metal work and all other materials used in lieu
thereof [and] . . . the preparation of all shop and
field sketches used in fabrication and erection."
The Sheet Metal Workers trade jurisdiction as set
forth in its International constitution was incorpo-
rated by reference into the collective-bargaining
agreement and states that the Union claims full ju-
risdiction over the "fabarication of all sheetmetal
work . . . formed in brake or press and . . . the
makings of all connections whether screwed . . .
welded or otherwise fastened [and] all sheetmetal
work used in connection with or incidental to the
equipment and operation of . . . manufacturing
plants, including ... pipes and fittings ... in con-
nection with or incidental to the operating thereof
[and] all types of sheetmetal work in connection
with industrial work including . . . chemical and
similar type plants . . . including . . . all sheetme-
tal drip pans." Plastics are also included in the
claimed jurisdiction when used as a replacement
for sheetmetal.
The collective-bargaining agreement between the
Employer and the Plumbers provides that the
Plumbers Local is the exclusive representative of
those employees of the Employer who are engaged
in: "The laying out and cutting of all holes, chases
and channels, the setting and erection of booths, in-
serts, stands, brackets, supports, sleeves, thimbels,
hangers, conduit and boxes, used in connection
with pipe fitting industry." Section 19 of the agree-
ment provides: "The Local Union reserves the
right to refuse to handle, erect or install fabricated
material sent to the job that has not been fabricated
by Journeymen members of the United Associa-
tion."
The Plumbers Local contends that the words
"erection" and "fabricate" are synonymous and
that the contract clearly gives them the right to
make and install sheetmetal boxes and containment
devices when it refers to the "setting and erection
of . . . boxes." However, this contract is far from
clear. The Board has made a distinction between
the terms "prefabrication" and "erection." 6 We
note in the instant case that the estimators guide
for mechanical contractors used by the Employer
breaks down estimates by erection time and by
shop fabrication time. Even if the two terms were
used interchangeably as asserted by the Plumbers,
the local agreement would make little sense in its
reservation clause. In that case the Plumbers Local
would "reserve the right to refuse to . . . fabricate
[erect] . . . fabricated material sent to the job that
has not been fabricated by Journeymen." The logi-
cal conclusion is that the terms are not synony-
mous and we conclude therefore that consideration
of the collective-bargaining agreements favors as-
signment of the work to employees represented by
the Sheet Metal Workers.
2. Company preference and past practice
After a consideration of all the relevant facts the
Employer assigned the work of fabricating the dis-
tribution boxes to employees represented by the
Sheet Metal Workers. The record indicates that
Shaker, Travis & Quinn, Inc. is satisfied with the
results of its assignment and maintains a preference
for an assignment of the work to members of the
Sheet Metal Workers.
It is the Employer's consistent practice to assign
the fabrication of metal and plastic spillage contain-
ers, troughs, and enclosures to its employees who
are represented by the Sheet Metal Workers. Al-
though the record indicates that the distribution
boxes here in question are a relatively new technol-
ogy with respect to the "pipe within a pipe" sys-
tems, the basic function of these boxes is to prevent
spillage of caustic or corrosive chemicals. That is
also the basic function of the other containers,
troughs, etc., which have traditionally been fabri-
cated by employees represented by the Sheet Metal
Workers. On the basis of the above findings we
conclude that the Employer's preference and past
practice favor assignment of the work in dispute to
employees represented by the Sheet Metal Work-
ers.
3. Area and industry practice
The record clearly establishes that different em-
ployers in the area, including employers at the
same jobsite, have consistently assigned the fabrica-
tion of metal enclosures and containment devices,
such as protective piping enclosures, to sheetmetal
workers. The Plumbers produced no examples of
assignment of such work or similar work to em-
ployees represented by the Plumbers. We conclude
that the area and industry practice favors assign-
" Bricklayers Local 18 (Tobasco Concrete), 169 NLRB 1085 (1968)
653
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of the work in dispute to employees repre-
sented by the Sheet Metal Workes.
4. Relative skills
The record establishes that: (1) the Employer's
sheetmetal workers possess the necessary skills to
perform the work in dispute and (2) journeymen
plumbers represented by the Plumbers are not suffi-
ciently skilled to perform the disputed work. The
record also indicates that the Employer is satisfied
with the performance of the work in dispute by its
employees represented by the Sheet Metal Work-
ers.
Specifically, the record shows that the work of
the Employer's sheetmetal workers is significantly
different from the work performed by journeymen
plumbers in terms of training and techniques re-
quired. The journeymen sheetmetal worker has
completed 4 years of training and practice as an ap-
prentice and receives 160 hours per year training at
the apprenticeship school. They are specifically
trained in the use of power tools including the
power shear, the power brake, and the MIG (inert
gas) welder, all of which are used in the fabrication
of the distribution boxes in question. No plumber
who testified had any ability to properly operate
the equipment. While the Plumbers argued that it
should have had access to the power equipment in
the Employer's sheetmetal shop, the Employer's
engineer, Tiger, testified without contradiction that
it takes at least 21 hours to teach an apprentice
how to use the power brake. Although the record
supports the contention of the Plumbers that the
distribution boxes can be manufactured by hand-
tools, it is undisputed that this method takes about
five times as long to complete. We find that consid-
eration of the factors of skill and special training
favors assignment of the disputed work to the em-
ployees of the Employer who are represented by
the Sheet Metal Workers.
5. Economy and efficiency of operation
The record indicates that an assignment of the
work in dispute to employees represented by the
Plumbers would result in a substantial loss of econ-
omy and efficiency to the Employer. Testimony in-
dicates that it would take about 1 hour and 13 min-
utes to fabricate a "p-trap enclosure" in the Em-
ployer's sheetmetal shop. The same enclosure
which was actually fabricated by the Plumbers at
the jobsite took over 7 hours. Through the use of
the power shears, power brake, and MIG welder,
all of which the journeyman sheetmetal worker is
familiar with, many of the components for the en-
closures can be fabricated at one time saving un-
necessary repetition. It is uncontroverted that using
members of the Plumbers to fabricate the boxes
would increase the Employer's labor cost consider-
ably above what it would cost to have sheetmetal
workers perform the work. We find that the fac-
tors of both economy and efficiency support an
award of the work in the dispute to employees rep-
resented by the Sheet Metal Workers.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by the Sheet
Metal Workers are entitled to perform the work in
dispute. We reach this conclusion relying on the
collective-bargaining agreement between the Sheet
Metal Workers and the Employer; employer pref-
erence; industry and area practice; the requisite
skills and training possessed by sheetmetal workers;
and the efficiency and economy of operations. In
making this determination, we are awarding the
work to employees represented by Sheet Metal
Workers Local 38, not to that Union or its mem-
bers.
Scope of Determination
The Employer requests that the Board determine
the dispute by awarding the disputed work to its
employees represented by the Sheet Metal Workers
and further requests that the Board's determination
apply to the geographic jurisdiction of Plumbers
Local 201.
It has been the Board's policy to make an award
broad enough to encompass the geographic area in
which an employer does business wherever juris-
diction of competing unions coincide, in circum-
stances where there is an indication that the dispute
is likely to recur.7 However, here there is no evi-
dence of any disputes between the Plumbers and
the Employer in the past or any evidence that such
a dispute is likely to recur in the future. Therefore,
our determination in this case is limited to the in-
stant dispute.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Shaker, Travis & Quinn, Inc.,
represented by Sheet Metal Workers International
Association, Local 38, AFL-CIO are entitled to
perform the fabrication of distribution boxes, p-trap
enclosures, and other similar devices constructed of
sheetmetal or its substitutes for the containment of
possible liquid spillage at the Employer's jobsites at
the IBM East Fishkill, New York facility.
7 Iron Workers Local 290 (Israel Builders), 223 NLRB 790, 793 (1976).
654
PLUMBERS LOCAL 201 (SHAKER, TRAVIS)
2. Local 201, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting
Industry of Dutchess and Ulster Counties, New
York, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL-CIO is not
entitled by means proscribed by Section
8(b)(4)(ii)(D) of the Act to force Shaker, Travis &
Quinn, Inc. to assign the disputed work to employ-
ees represented by it.
3. Within 10 days from this date, Local 201,
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of Dut-
chess and Ulster Counties, New York, United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO shall notify the Re-
gional Director for Region 3 in writing whether it
will refrain from forcing the Employer, by means
proscribed by Section 8(b)(4)(ii)(D), to assign the
disputed work in a manner inconsistent with this
determination.
655