Plumbers Local 612 (Mechanical, Inc.)

National Labor Relations Board - Board Decisions

Jun 18, 1990

298 N.L.R.B. 793 (N.L.R.B. 1990)

PLUMBERS LOCAL 612 (MECHANICAL, INC.)
Plumbers and Pipe Fitters Local 612, United Asso-
ciation of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry and Me-
chanical , Inc. and Laborers' Local 109, Labor-
ers' International Union of North America.
Case 33-CD-331
June 18, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFF AND DEVANEY
The charge in this Section 10(k) proceeding was
filed August 1, 1988, by Mechanical, Inc. (Mechan-
ical, Inc. or the Employer), alleging that the Re-
spondent, Plumbers and Pipe Fitters Local 612,
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry (Plumb-
ers Local 612) violated Section 8(b)(4)(D) of the
National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Em-
ployer to assign certain work to employees it rep-
resents rather than to employees represented by
Laborers' Local 109, Laborers' International Union
of North America (Laborers Local 109). The hear-
ing was held September 9, 1988, before Hearing
Officer Ronald J. Symkowiak.
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 Delaware corporation , with its
principal place of business in DeKalb , Illinois, en-
gages in the installation of storm and sanitary
sewer pipes and manholes . During the past calen-
dar year, the Employer purchased and received
goods valued in excess of $50,000 directly from
suppliers located outside the State of Illinois. The
parties stipulate , and we find , that the Employer is
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that Plumbers
Local 612 and Laborers Local 109 are labor orga-
nizations within the meaning of Section 2(5) of the
Act.
' Laborers Local 109 argues that the hearing officer erred in admitting
hearsay testimony. The hearing officer did not err because the admitted
hearsay testimony was neither uncorroborated nor relied on to support a
finding of reasonable cause Electrical Workers IBEW Local 3 (Mike G.
Electric), 279 NLRB 521 (1986).
II. THE DISPUTE
793
A. Background and Facts of Dispute
On May 30, 1988, Mechanical, Inc. entered into
a subcontract agreement with general contractor
Madsen Construction Co., providing for the former
to install storm, sewer, and water systems at the
Oak Crest Retirement Center in DeKalb, Illinois.
Mechanical, Inc. retained one to three employees
represented by Plumbers Local 612, as well as a
backhoe operator represented by the Operating En-
gineers' local union, to perform this project.2 Me-
chanical, Inc. is signatory to a collective-bargaining
agreement with Plumbers Local 612 effective June
1, 1985, through June 30, 1990.
Approximately 2 weeks after the commencement
of the project, Laborers Local 109 Business Man-
ager Larry Lambert arrived at the jobsite, ob-
served the work in progress, and asked Grant In-
boden, foreman of the project and a Plumbers
Local 612 member, when he had started laying
storm pipe. Inboden did not respond to Lambert's
query. Lambert again arrived at the jobsite some
weeks later and questioned Inboden regarding the
installation of manholes. Inboden suggested that
Lambert direct any questions concerning 'the
project to Plumbers Local 612 Business Manager
Gary Wiggins, to which Lambert responded that
Inboden was doing work of Laborers Local 109.
These two incidents were reported by Inboden to
Mechanical, Inc. Vice President Dale Cox.
By letter dated July 12, 1988, Lambert notified
Madsen Construction Co. that Laborers Local 109
wished to file a grievance for violation of the sub-
contracting clause contained in an agreement be-
tween Laborers Local 109 and Madsen. Thereafter,
in a conference call involving Vice President Cox,
the Employer's counsel, and Wiggins regarding the
grievance filed by Laborers Local 109, Wiggins as-
serted that if Mechanical, Inc. reassigned the work
of laying pipe and manholes at the Oak Crest site
to employees represented by Laborers Local 109,
Wiggins would picket the project. A subsequent
meeting of the area building trades business manag-
ers, including Lambert and Wiggins, failed to re-
solve the dispute.
B. Work in Dispute
The disputed work involves the installation of
storm and sanitary sewer pipe and manholes at the
Oak Crest Retirement Center in DeKalb, Illinois.
2 The pipefitter and backhoe operator work in tandem„ installing the
pipe and manholes in trenches dug by the latter The pipefitter loins the
pipe and manholes with and without the assistance of the backhoe opera-
tor.
298 NLRB No. 112
794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. Contentions of the Parties
Mechanical, Inc. contends that there is reasona-
ble cause to believe that Plumbers Local 612 vio-
lated Section 8(b)(4)(D) of the Act and that the
Board must therefore determine the merits of the
dispute. Mechanical, Inc. further contends that the
work in dispute should be awarded to employees
represented by Plumbers Local 612 based on the
fact that it has a collective-bargaining agreement
with Plumbers Local 612, employer preference,
past practice, relative skills, and economy and effi-
ciency of operation.
Laborers Local 109 contends that this dispute is
not properly before the Board because there is no
proof that it made a demand for work on the Oak
Crest project, arguing that the conversations be-
tween Inboden and Lambert are insufficient to es-
tablish that a competing claim for work was regis-
tered. Laborers Local 109 further argues that there
is no jurisdictional dispute because the work in dis-
pute was completed at the time of the hearing.3 In
addition, at the hearing, Laborers Local 109 moved
for the dismissal of the instant proceeding, alleging
that the notice of hearing was violative of the
Board's Rules and Regulations Section 102.90 due
to the failure of the notice to specifically describe
the alleged 8(b)(4)(D) violation.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion 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 and that the parties have not agreed on a
method for the voluntary adjustment of the dis-
pute.
As indicated above, Laborers Local 109 Business
Manager Lambert approached Grant Inboden, the
Oak Crest project foreman, and asserted that the
latter was performing work of Laborers Local 109.
Subsequently, Lambert notified Madsen Construc-
tion Co. that the former wished to file a grievance
for violation of the subcontracting clause contained
in an agreement between Laborers Local 109 and
Madsen. By filing the grievance against Madsen for
subcontracting the work to a contractor who does
not use Laborers-represented employees, Laborers
Local 109 was, in effect, making a demand for
work.4 We find that Lambert's statement to Inbo-
3 Laborers Local 109 concedes that if this case involved a true jurisdic-
tional dispute subject to Sec. 10(k), the Board would award the work to
employees represented by Plumbers Local 612
4 Laborers Local 731 (Slattery Associates), 298 NLRB No. 111, issued
this day, Laborers (O'Connell's Sons), 288 NLRB 53 (1988), Sheet Metal
Workers Local 107 (Lathrop Co.), 276 NLRB 1200, 1202 (1985)
den, as well as his filing of the grievance, consti-
tute a demand for the work.
Furthermore, Plumbers Local 612 Business Man-
ager Wiggins, in a conference call with Mechani-
cal, Inc. Vice President Cox and counsel for Me-
chanical, Inc., asserted that if work on the Oak
Crest project was reassigned to employees repre-
sented by Laborers Local 109, Wiggins would
picket the project. It is well settled that there is
reasonable cause to believe that a violation of Sec-
tion 8(b)(4)(D) has occurred if a labor organization
that represents employees who are assigned the dis-
puted work threatens to picket or otherwise co-
erces an employer to continue such an assignment.5
We find reasonable cause to believe that a viola-
tion of Section 8(b)(4)(D) has occurred and that
there exists no agreed method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we find that the dis-
pute is properly before the Board for determina-
tion. 6
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.
1. Collective-bargaining agreements
Mechanical, Inc. and Plumbers Local 612 have
been parties to successive collective-bargaining
agreements and are currently bound by a collec-
tive-bargaining agreement effective June 1, 1985,
through June 30, 1990. Article IV of the current
agreement generally covers the disputed work. Me-
chanical, Inc., the Employer that controls the as-
Ibid
We deny Laborers Local 109's motion to dismiss the instant proceed-
ing in the absence of evidence , or even an allegation , that Local 109 was
prejudiced by the claimed insufficiency of the notice of hearing We also
reject Local 109's argument that no jurisdictional dispute exists because
the storm , sewer, and manhole work at the Oak Crest project had been
completed at the time of the hearing It is well established that the mere
fact that disputed work has been completed does not render a jurisdic-
tional dispute moot when nothing indicates that similar disputes are un-
likely to recur See, e g , Operating Engineers Local 150 (Martin Cement),
284 NLRB 858 ( 1987) We conclude, contrary to the argument of Labor-
ers Local 109 , that testimony implying that Local 109 has not made a
demand for work on another current project of Mechanical , Inc. is insuf-
ficient to indicate that similar jurisdictional disputes are unlikely to recur
PLUMBERS LOCAL 612 (MECHANICAL, INC.) 795
signment of the disputed work, is not signatory to
any collective-bargaining agreement with Laborers
Local 109. We find that the factor of the collec-
tive-bargaining agreement favors an award of the
disputed work to employees represented by Plumb-
ers Local 612.
2. Employer preference and past practice
The Employer prefers to use employees repre-
sented by Plumbers Local 612 to perform the work
in dispute. Mechanical, Inc. Vice President Cox
testified that for the past 7 years it has employed
exclusively employees represented by the United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry to perform the
installation of storm and sanitary sewer systems.
Accordingly, we find the factor of employer pref-
erence and past practice favors an award to em-
ployees represented by Plumbers Local 612.
3. Area and industry practice
Mechanical, Inc. presented evidence that it was
the area practice for sewer installation to be per-
formed by licensed plumbers. Laborers Local 109
Business Manager Lambert testified, however, that
Laborers Local 109 has performed such installation
on several area projects. Under these circum-
stances, we find that the factor of area practice is
inconclusive and does not favor an award of the
disputed work to employees represented by either
Union.
4. Relative skills
The record indicates that employees represented
by both Plumbers Local 612 and Laborers Local
109 possess the necessary skills to perform the in-
stallation of storm and sanitary sewer pipe and
manholes. We, therefore, find that this factor does
not favor an award of the disputed work to em-
ployees represented by either Plumbers Local 612
or Laborers Local 109.
5. Economy and efficiency of operation
The Employer contends that it is more economi-
cal and efficient to assign the disputed work to em-
ployees represented by Plumbers Local 612, as it is
required by law that the installation of water and
sanitary systems within 5 feet of a structure on pri-
vate property be performed by a state-licensed
plumber. Therefore, employees represented by La-
borers Local 109 who are not state-licensed plumb-
ers are unable to perform this particular facet of
the Oak Crest project. In contrast, employees rep-
resented by Plumbers Local 612, all of whom, save
for apprentices, are state-.licensed plumbers, are
able to install all segments of the storm, sewer, and
water systems at the Oak Crest project. According-
ly, we find that the factor of economy and efficien-
cy of operation favors an award of the disputed
work to employees represented by Plumbers Local
612.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Plumbers
Local 612 are entitled to perform the work in dis-
pute. We reach this conclusion relying on the fac-
tors of the collective-bargaining agreement, the
Employer's preference and past practice, and the
economy and efficiency of operation. In making
this determination, we are awarding the work to
employees represented by Plumbers Local 612, not
to that Union or its members. The determination is
limited to the controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of Mechanical, Inc., represented by
Plumbers and Pipe Fitters Local 612, United Asso-
ciation of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry, are entitled to
perform the installation of storm and sanitary
sewer pipe and manholes at the Oak Crest Retire-
ment Center in DeKalb, Illinois.
CHAIRMAN STEPHENS, concurring.
In my dissenting opinion in Laborers Local 731
(Slattery Associates), 298 NLRB 787, I stated that I
would not find that the pursuit of an arguably mer-
itorious grievance for the breach of a union signa-
tory subcontracting clause constituted a competing
claim for work assigned by a subcontractor who
was a beneficiary of the arguable breach. So long
as a union did nothing more than announce its
intent to pursue such a grievance and actually
pursue it through the proper channels, I would
quash the 10(k) notice on the ground that there
was no jurisdictional dispute because of the ab-
sence of competing claims.
It is essential under my view, however, that such
a union establish that it had an arguably meritori-
ous claim that the subcontracting of the work in
question violated the signatory subcontracting
clause between that union and the employer who
subcontracted the work. In the present case, al-
though there is evidence that Laborers sought to
file a subcontracting grievance against Madsen, La-
borers did not argue the merits of this grievance or
even rely on the grievance filing in contending that
there was no jurisdictional dispute. Rather, it
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
argued only that the conversation between its rep-
resentative and the Employer 's project foreman
was too vague to constitute a demand for the work
and that the notice of hearing should be quashed
because the project had been completed by the
time the hearing began . I find no merit in either of
these arguments, and so I agree that we may prop-
erly resolve the dispute. I further agree, for the
reasons stated in the majority opinion, that the
work should be awarded to employees represented
by Plumbers Local 612.