Plumbers, Local 345

National Labor Relations Board - Board Decisions

Dec 8, 1980

253 N.L.R.B. 618 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of
the United States and Canada, Local Union 345
and A-Associate Industries Corporation of
Montebello and Southern California District
Council of Laborers and its Affiliated Local
Unions. Case 21 CD-469
December 8, 1980
[)ECISION AND DETERMINATION OF
DISPUTE
HNL CIHAIRM, N FANNING ANI) MEMBEHRS
JI NKINS AND) PFNIN l.O
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by A-Associate Industries Corpo-
ration of Montebello, herein called the Employer,
alleging that United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, Local
Union 345, herein called Plumbers, had violated
Section 8(b)(4)(D) of the Act by engaging in cer-
tain proscribed activity with the object of forcing
or requiring the Employer to assign certain work
to its members rather than to employees represent-
ed by Southern California District Council of La-
borers and its affiliated Local Unions, herein called
Laborers.
Pursuant to notice, a hearing was held before
lcaring Officer Lucke on August 6, 1980. All par-
tics appeared and were afforded full opportunity to
be heard, to examine and cross-examine witnesses,
and to adduce evidence bearing on the issues.
Pursuant to the provisions of Section 3(b) of the
National l.abor 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
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. I Hl BUSINESS O() I HY MPI OYFR
The record shows, and we find, that the Em-
ployer, a California corporation with its principal
place of business in Montebello, California, is en-
gaged in business as a subcontractor in the building
and construction industry, performing landscape,
irrigation, and installation work. At jobsites known
as Oltman I and 2 in Santa Fe Springs, California,
Oltman Construction Company contracted with
Associate Industries Inc. for lawn sprinkler, land-
253 NLRB No. 81
scape, and irrigation work and the value of such
contracts exceeded $100,0(X)0. Associate Industries,
Inc., let subcontracts valued in excess of $30,000 to
the Employer for a portion of the Oltman I and 2
work.
At all times material herein, Oltman Construc-
tion Company, a corporation with its principal of-
fices located in Monterey Park, California, has
been a member of the Building Industry Associ-
ation of California, Inc., a multiemployer trade as-
sociation which engages in multiemployer collec-
tive-bargaining negotiations. During the past 12
months, employer members of the Association,
either collectively or individually, purchased and
received goods, materials, and supplies valued in
excess of 50,(XX) from suppliers located within the
State of California, which materials and supplies
were received directly from outside the Stale of
California by those suppliers.
At the Oltman I and 2 jobsites, Oltman and its
subcontractors purchased and received goods
valued in excess of $50,(X)0 directly from suppliers
located inside the State of California. These suppli-
ers received such goods directly from firms located
outside the State of California which supplies were
for installation and use at the jobsites.
We find, in accordance with the foregoing, that
Oltman Construction Company is an employer en-
gaged i commerce within the meaning of Section
2(6) and (7) of the Act and that it will effectuate
the purpose of the Act to assert jurisdiction
herein.
II. I tHi I A13(OR OR(;ANIZ/AF lION INVOI VII)
The parties stipulated, and we find, that Plumb-
ers and Laborers are labor organizations within the
meaning of Section 2(5) of the Act.
Ill. THE I)ISPUT:.
A. Background and Facts oj Dispute
The Employer is a subcontractor performing
landscape, irrigation, and sprinkler system installa-
tion in southern California. Since 1976, it has been
signatory to a collective-bargaining agreement with
Laborers and has used only laborers to perform its
landscape and irrigation work.
Laborers and UA District Council No. 16
(which includes Plumbers) have had a work juris-
diction agreement since 1974. This agreement
grants employees who are represented by Plumbers
the right to perform the work in dispute. However,
I Inerrnalrtou/ aBrwhrhood oJ Pn/nirer and 41/d I rad. Dry 4WU/ I'm !-
ishcr, L.oa l ,V, 1955 (Br I ( tro ruton (a ), 192 NLRIJ 41 (1971 );
.Sh,,l Stul lntrnatmnal A,a4o ann. .,ul 28 11,. (10 (Nu-tFhhcrgl&s
t)ut ( orporatton, 159 NL RIt 142 1425 (1966).
Pl.UM[IFRS, LOCAI 345
the evidence fails to show adherence by the Labor-
ers to the agreement, and that on at least two occa-
sions in 1977 Plumbers demanded, and the Employ-
er refused, assignment of irrigation work which la-
borers were performing.
In 1980, Oltman Construction Company subcon-
tracted landscape and irrigation work at two job-
sites in Santa Fe Springs, California, known as
Oltman I and 2, to Associate Industries. At Oltman
1, Associate Industries subcontracted the landscape
work to the Employer and the irrigation work to
Hydrodig, a subcontractor signatory to an agree-
ment with Plumbers. At a May 20 meeting held be-
tween representatives of Oltman, Associate, Labor-
ers, and Plumbers, concerning problems at the
Oltman 1 jobsite, a question arose as to who 'would
perform the irrigation work at the Oltman 2 job-
site. Plumbers Representative ()rr suggested that
either Associate Industries or the Employer sign a
labor agreement with Plumbers or that the future
"plumbers work" be subcontracted to Hydrodig.
Additionally, Orr stated that he wanted his "mem-
bers on the pipe" at the Oltman 2 site.
Associate subcontracted the landscape and irriga-
tion work at Oltman 2 to the Employer. ()n June
10, 1980, two laborers began the work for the Em-
ployer. 2 Starting on June 11 and continuing
through June 16, plumbers picketed the jobsite car-
rying signs displayinig a recognitional object.
B. le Wobrk in Dispute
The work in dispute involves the handling,
laying, and installation of lawn sprinkler and irriga-
tion pipe as well as the installation of valves and
valve boxes connected therewith at commercial
and residential jobsites located in the nine southern
California counties in which Plumbers and Labor-
ers have concurrent jurisdiction.
C. he Contentions of the Parties
The Employer contends that a jurisdictional dis-
pute exists; that Plumbers violated Section
8(b)(4)(D) by demanding, then picketing the Em-
ployer's jobsite to force assignment of work to em-
ployees who are represented by Plumbers; and that
the Laborers collective-bargaining agreement with
the Employer, and the Employer's preference, past
practice, efficiency, and economy dictate that the
work in dispute should continue to be assigned to
employees who are represented by Laborers.
Laborers makes no contentions but attempted at
the 10(k) hearing to disclaim the work at this par-
ticular jobsite.
2 Alhough a n mtmber of ahorer, I)ennris Napolin a lo A. i a
memher of Ilumbhers, and he record indlcatl, Ithat h wal hired fir thi,
particular joh basd on his IL.ablrcrs mcmhberhip
Plumbers alleges that no work dispute exists be-
cause Laborers disclaimed the work; that the pick-
eting was for a lawful recognitional objective and
not in furtherance of an unlawful object banned by
Section X(b)(4)(D); and that, even if a work dispute
exists, the work jurisdiction agreement between
Plumbers and Laborers requires the assignment of
the work to employees who are represented by
Plumbers.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
Plumbers contends that no work dispute exists
because Laborers disclaimed the work. However,
the record shows that the disclaimer was ineffec-
tive because: (I) Laborers limited its disclaimer to
the specific job in the instant proceeding, this is
contrary to the nine-county area scope of the work
in dispute. (2) The disclaimer is predicated on the
argument that the work has not been performed by
laborers since 1974 because the Unions' work juris-
dictional agreement covers the disputed work and,
uncler that agreement, the irrigation and sprinkler
system installation work involved herein has been
awarded to plunibers. Although the agreement sup-
ports Plunibers argument, the evidence establishes
that laborers has not observed the agreement, and
that since 1977 the Employer has consistently used
laborers to perform its irrigation work. In addition,
on at least two occasions in 1977 and again in the
instant proceeding Plumbers unsuccessfully de-
manded that the Employer assign the work to its
members. Further, the two employees performing
the disputed work herein were hired because of
their membership in Laborers. In none of the
above instances did Laborers object to its members'
performance of work notwithstanding the theory
of assignment to Plumbers under the work jurisdic-
tion agreement. (3) The work in dispute is covered
by article 8, section 7, of Laborers collective-bar-
gaining agreement with the Employer.'
The evidence also discloses reasonable cause to
believe "an object" of the picketing by members of
Plumbers was to force the Employer to assign the
disputed work to employees who are represented
: Art 8, sc 7. reads i pertinent part "All I a rers s' w rk iii CioIlrne
iton lO ir the iontrriL ron of irrigaitiion atler lines lincluding tihl
cribihhiing lagginig brahr ig. sheteilig checking grade for pipe laying.
Irenich lickilng aid handling o handgided lagging Ihaiirer, on all pen
Irenell-. l ; 1d ditt'he,
614
I)ECISIONS OF NATI()NAL. LABOR RELATIONS BOARD
by Plumbers. As indicated, supra, in 1977 Plumbers
twice demanded assignment of the work which la-
borers were performing and also threatened to
picket the Employer if it did not enter into a bar-
gaining agreement with Plumbers. In addition,
Plumbers Representative Orr stated at the May 20,
1980, meeting that "I want my members on the
pipe." Members of Plumbers began picketing the
jobsite 2 weeks later.
Plumbers contends that the picketing's object
was not for work assignment, but rather that it
wanted a prehire agreement with the Employer.
However, the record contains Orr's admission that,
if the picketing resulted in a Plumbers bargaining
agreement with any of the employers involved
herein, it would require that employer to use
plumbers to perform the disputed work. We find,
therefore, that an object of Plumbers' picketing
was to require the Employer to assign the work to
employees who are represented by Plumbers rather
than to employees who are represented by Labor-
ers. Laborers' Local 676 (Clyde Stewart Excavating
Co.), 229 NLRB 664, 665 (1977); cf. Sheet Metal
Workers International Association., Local 99, AFL et
al (Albers Milling Company), 90 NLRB 1015, 1019
(1950).
On the basis of the entire record, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred and, as
the parties stipulated, that no agreed-upon method
for the voluntary adjustment of the dispute exists
within the meaning of Section 10(k) of the Act.
Accordingly, we find that this 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 disputed work after
giving due consideration to various factors.4 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case.-
The following factors are relevant in making the
determination of the dispute before us:
I. Collective-bargaining agreement
As noted above, the Employer is currently signa-
tory to a collective-bargaining agreement with La-
borers which specifically covers the work in dis-
pute. Plumbers, though frequently seeking recogni-
tion from the Employer, has no such agreement.
4 N. t Bi N Radio & lhvimion roadca t Erigint, rs Union,. L.x-a/
1212. I, / rnairoral irotherhood J' I:lorictal Worker. .4117.-(()/0 [( lum-
hia raadcatlng Sytrnl]. 364 I S 573 (1961h)
' Interlaitleal .1s4iwatnw o Muctiis, 1.odge No. 1743, .-l-. ( (0 U
A. on,s (Contrutto!n (Compan., 135 N[.RB 1402 (1962)
This factor favors awarding the work to employees
who are represented by Laborers.
2. Employer and area practice
Since 1977, the Employer has continuously and
exclusively used employees who are represented by
Laborers to perform the work in dispute, and this
factor weighs in favor of awarding the work to
employees who are represented by Laborers. See
Laborers' International Union of North America,
Local 300, AFL-CIO (Howard Olson Landscaping,
Inc.), 195 NLRB 247, 248 (1972).
The evidence regarding area practice is inconclu-
sive and does not favor awarding the work in dis-
pute to one group of employees rather than to the
other.
3. Skills, economy, and efficiency of operation
The record indicates that both laborers and
plumbers can perform the irrigation work with
equal skill. Therefore, this factor does not weigh in
favor of either group of employees. Performance of
both the irrigation and landscape work by laborers,
however, enables the Employer to have a continu-
ous and more efficient operation, in that the lands-
caping involves rototilling and planting shrubs and
trees around the irrigation system, and when the
employee who installed the irrigation system also
landscapes that area, his knowledge of the system's
depth and placement ensures its protection.
4. Union work jurisdiction agreement
Laborers and Plumbers are parties to a work ju-
risdiction agreement which covers and awards to
employees who are represented by Plumbers the
work in dispute. The Employer is not a party to
this agreement and, thus, is not bound by it. While
normally that agreement would favor awarding the
work to employees who are represented by Plumb-
ers, the record shows that Laborers has not ob-
served the agreement, which makes its viability
questionable. Therefore, this factor is not a control-
ling one.
5. Employer preference
The Employer's president testified that because
of efficiency and economy it preferred its employ-
ees who are represented by Laborers to perform
the disputed work. This factor weighs in favor of
awarding the work to employees who are repre-
sented by Laborers.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
620
PI.lUM ERS, O()CAL 345
clude that employees who are represented by La-
borers are entitled to perform the work in dispute.
We reach this conclusion relying on the collective-
bargaining agreement, efficiency, economy, and the
Employer's past practice and preference. In making
this determination, we are awarding the work in
question to employees who are represented by La-
borers, but not to that Union or its members. The
present determination covers the disputed work in
the nine southern California counties in which
Plumbers and Laborers have concurrent jurisdic-
tion.
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
makes the following Determination of Dispute:
1. Employees of A-Associate Industries Corpora-
tion of Montebello, who are represented by South-
ern California District Council of Laborers are en-
titled to perform irrigation and lawn sprinkler in-
stallation at commercial and residential jobsites lo-
cated in the nine southern California counties in
which Plumbers and Laborers have concurrent ju-
risdiction, including the jobsite known as Oltman 2
in Santa Fe Springs, California.
2. United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada, Local Union
345, is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require A-Asso-
ciate Industries Corporation of Montebello to
assign the disputed work to employees represented
by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, United Association
of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and
Canada, Local Union 345, shall notify the Regional
Director for Region 21, in writing, whether or not
it will refrain from forcing or requiring the Em-
ployer, by means proscribed by Section 8(b)(4)(D)
of the Act, to assign the disputed work in a manner
inconsistent with the above determination.
621