Plumbers Local 55

National Labor Relations Board - Board Decisions

Aug 17, 1970

184 N.L.R.B. 901 (N.L.R.B. 1970)

PLUMBERS LOCAL 55 901
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada , Plumbers Local 55,
AFL-CIO and Midwest Prestressed Corporation
and Local Union 894, Laborers ' International
Union of North America , AFL-CIO. Cases
8-CD-179 and 8-CD-185.
August 17, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS MCCULLOCH, BROWN , AND JENKINS
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing charges filed by Midwest Prestressed Cor-
poration ' and Local Union 894, Laborers Interna-
tional Union of North America, AFL-CIO,2 alleg-
ing that United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry
of the United States and Canada, Local 55,
AFL-CIO,3 had violated Section 8(b)(4)(ii)(D) of
the Act. Pursuant to notice , a hearing was held be-
fore Hearing Officer Charles Z. Adamson on vari-
ous dates between December 15, 1969, and April
14, 1970. All parties appeared at the hearing and
were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses , and to adduce
evidence bearing on the issues . Thereafter, the
Laborers , the Plumbers , and Midwest filed briefs.
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
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing , and finds that they
are free from prejudicial error . The rulings are
hereby affirmed . The Board has considered the
parties' briefs and the entire record in these cases,
and hereby makes the following findings:
1. THE BUSINESS OF THE COMPANY
Midwest Prestressed Corporation is engaged in
the manufacture, supply, and installation of precast
concrete slabs used for' ceilings and floors, with its
plant in Kent, Ohio. The situs of the dispute herein
is a $2 million apartment complex being built by
Bishop Park South Corporation' in Wickliffe, Ohio.
Midwest contracted to supply and install 150,000
square feet of prestressed concrete slabs for Bishop
Park at a cost of $235,000. In Case 8-RC-7576,
the Board asserted jurisdiction over Midwest and,
following an election, certified the Laborers on
August 22, 1969, as the exclusive bargaining
representative of Midwest's production and main-
tenance employees, including erection crew mem-
bers.
As none of the parties herein has contested the
Board's jurisdiction over Midwest, we find from the
above that Midwest in engaged in commerce within
the meaning of the Act and that it will effectuate
the purposes of the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, Plumbers Local 55, AFL-CIO,
and Local Union 894, Laborers' International
Union of North America, AFL-CIO, are labor or-
ganizations within the meaning of the Act.
111. THE DISPUTE
A. Background and Facts of the Dispute
The dispute involves the assignment of the task
of drilling holes in prestressed, precast concrete
slabs for pipes, etc., after the installation of the
slabs as floors and ceilings at the apartment com-
plex being built by Bishop Park known as Bishop
Towers. The charges filed by Midwest on Sep-
tember 245 and the Laborers on November 12 in
Cases 8-CD-179 and 8-CD-185, respectively, al-
lege, inter alia, that on or about September 8, and
continuously thereafter, the Plumbers threatened,
coerced, and restrained Midwest with an object of
compelling Midwest to assign the drilling work then
being performed by Midwest's erection crew em-
ployees represented by the Laborers to employees
represented by the Plumbers. The plumbers
represented by Plumbers were employed by City
Plumbing & Heating Company,6 Bishop Park's
plumbing subcontractor.
The record reveals that general contractor
Bishop Park is engaged in erecting an apartment
complex costing millions of dollars in Wickliffe,
Ohio, a suburb of Cleveland. Only the third build-
ing of the three-building project (building C) is in-
volved in the instant jurisdictional dispute. On May
19, Bishop Park entered into a contract with Mid-
west under the terms of which the latter was to
' Herein called Midwest.
' Herein called Laborers
' Herein called Plumbers.
Herein called Bishop Park
s All dates are 1969 unless otherwise indicated.
' Herein called City.
184 NLRB No. 105
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deliver and install approximately 150,000 square
feet of prestressed, precast concrete slabs for use as
floors and ceilings. The contract also required Mid-
west to cast at its plant, or field cut at the building
site, all openings for water closets, roof drains, and
vent stacks; i.e., plumbing. The record indicates
that Midwest was expected to cast the openings and
deliver the slabs with holes for the plumbing al-
ready made; the concrete slab contractor on
buildings A and B of the project had precast the
holes at its plant. However, Midwest chose to drill
the 1,000 or more openings at the building site
after the slabs were erected, using its erection crew
employees represented by the Laborers.
Midwest subcontracted the actual installation
work, but assigned the hole-drilling task to its
erection crew employees, who began work in late
July 1969. Laborers, as noted above, was certified
on August 22 as the exclusive representative of
Midwest's production and maintenance employees,
including, inter alia, erection employees. The cer-
tification stated that the appropriate unit consisted
of the named employee classifications at Midwest's
Kent, Ohio, plant, but the erection employees
herein worked at the Wickliffe building site. The
site was within the territorial jurisdiction of Cleve-
land Laborers Local 310, and not that of Local
894, but the former Union had not objected to
Midwest's use of Local 894 members, apparently
because Midwest was paying the going wages for
the area.
Midwest's erection crew employees worked
without incident until Friday, September 19, when
Mike Fischietto, the Plumbers steward, complained
to City's foreman, Mike Cannavino, that the
Laborers members employed by Midwest were
doing work traditionally done by plumbers in the
Cleveland area, since the holes were to be used for
plumbing. All City employees doing plumbing work
at Bishop Towers were represented by the Plum-
bers.
The next working day, September 22, City's field
superintendent, Richard Lanese, after discussing
the situation with Midwest's field superintendent,
Frank Kruczek, and a representative of the Plumb-
ers, transferred all the plumbers working on build-
ing C to other jobs then being done by City, includ-
ing buildings A and B. Kruczek was informed by
Lanese that the plumbers would return the next
day, when Plumbers Business Representative
Richard Cleary would be present to settle the
dispute.
At the September 23 meeting, Cleary told Wil-
liam Yeager, Bishop Park's representative, that the
hole-drilling work belonged to plumbers since
plumbing would pass through the holes. At some
point in the meeting, Cleary informed Yeager that
he could supply plenty of plumbers to do the
drilling work, but could not guarantee any plumb-
ers to complete the project if Midwest's laborers
continued the drilling work. Cleary also showed
Kruczek and Yeager a copy of a 1964 award by the
National Joint Board for the Settlement of Jurisdic-
tional Disputes which gave similar work to plumb-
ers. Both Midwest and Laborers stated then, and
contend here, that they are not stipulated to the
Joint Board or bound by its decisions; Plumbers as-
serts that it is bound by the decisions, which, it
claims, are dispositive of the dispute herein.
After the meeting, Midwest took its erection
crew employees off the drilling work; City and
Bishop Park negotiated a contract for the drilling
work, which the plumbers began in early October.
On September 24 Midwest filed the charges herein.
Thereafter, on or about November 23, the parties
agreed to permit Midwest's employees to resume
drilling the holes pending final disposition of the
matter. On January 16, 1970, after the hearing
herein had begun, the Joint Board issued a one-
page decision awarding the disputed work to the
plumbers.
B. The Contentions of the Parties
Midwest and the Laborers contend that the
Plumbers violated Section 8(b)(4)(ii)(D) of the
Act by exerting coercive pressure directly upon
Bishop Park and indirectly on Midwest to compel
the latter to assign the drilling work previously
given to laborers, to plumbers; viz, by threatening
Bishop Park's representative, Yeager, that no
plumbers would be available to complete the project
if the laborers continued to drill the holes. They also
contend that the work should be awarded to the
laborers because the Laborers is the certified
representative of the erection crew employees, the
hole-drilling task at the building site is part of Mid-
west's contract with Bishop Park, and considera-
tions of economy and efficiency warrant awarding
the work to laborers.
he Plumbers asserts that the charges should be
dismissed because neither Cleary nor any of its
agents threatened, coerced, or restrained Midwest
or Bishop Park in violation of the Act. Alternative-
ly, the Plumbers urges the Board to give effect to
the Joint Board's January 16, 1970, ruling and
award the disputed work to plumbers.
C. Applicability of the Statute
Before the Board may proceed with the deter-
mination of a dispute pursuant to Section 10(k) of
PLUMBERS LOCAL 55
the Act, it must be satisfied that there is reasonable
cause to believe that Section 8(b)(4)(D) of the Act
has been violated.
Contrary to the contentions of the Plumbers, we
find that the circumstances under which Plumbers
Business Representative Cleary indicated to Bishop
Park's representative, Yeager, that he could not
guarantee any plumbers to complete the project if
the laborers kept the drilling work, clearly establish
a prima facie case supporting the alleged violation
of Section 8(b)(4)(ii)(D) of the Act.
The Plumbers argues that Cleary did not make
such a threat, but the record contains the following
testimony by Cleary:
Mr. Yeager and I believe that the journeymen
plumbers had already left [the September 23
meeting at the building site]. I think that Mr.
Lanese was there and also that Mr. Kruczek
was there, I think mainly because they were
going to discuss the payment [for he drilling
work]. But Mr. Yeager, who was chit-chatting
with me, as I said-was all like off the cuff-
and he said something about, "Well, now that
you got the work, where are you going to get a
plumber from?" and I said , " I can get all the
plumbers you need." And I said, "As long as
the work is mine, I can't guarantee any plum-
bers if somebody else is doing our work."
Since Midwest, a necessary party to the adjust-
ment of the dispute, did not agree to submit the
dispute to the Joint Board and was not otherwise
bound by the Joint Board proceeding, we conclude
that there was no voluntary adjustment of the
dispute within the meaning of Section 10(k) of the
Act.7
From the above, and the entire record herein, we
find, contrary to the Plumbers, that there is
reasonable cause to believe that Section
8(b)(4)(ii)(D) of the Act has been violated and
that the dispute is properly before the Board for
determination.
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 all relevant fac-
tors. In International Association of Machinists,
Lodge No. 1743, AFL-CIO (J. A. Jones Construc-
tion Co. ),8 the Board set forth the following criteria
to be considered in the making of an affirmative
award in a 10(k) proceeding:
' See International Union of Operating Engineers, Local Union No 158,
AFL-CIO (E. C. Ernst, Inc ), 172 NLRB No 192.
° 135 NLRB 1402.
° Id at 1410-11.
903
The Board will consider all relevant factors in
determining who is entitled to the work in
dispute, e .g., the skills and work involved, cer-
tifications by the Board , company and industry
practice , agreements between unions and
between employers and unions , awards of ar-
bitrators , joint boards , and the AFL-CIO in the
same or related cases, the assignment made by
the employer , and the efficient operation of
the employer 's business.9
1. Company and area practice
The record reveals that Midwest is a relative
newcomer to the precast, prestressed concrete slab
field, having begun operations within the last few
years. At Bishop Towers, and at another apartment
complex then being supplied with Midwest slabs,
Churchill Towers in Parma Heights, Ohio, the con-
tract allowed Midwest to field cut all necessary
holes, which it started to do in both cases , using its
own erection crew employees represented by the
Laborers. At Churchill Towers, which is not in-
volved herein, and Bishop Towers, Midwest reas-
signed the hole-drilling task to plumbers, despite its
preference for laborers, after demands made by the
Plumbers.
The record is replete with evidence that skilled
craftsmen in the Cleveland area cut the floor and
ceiling holes through which their pipes, ducts,
wires, etc., pass. However, the situation herein dif-
fers from that where each craftsman drills his own
holes as needed, since here all the openings were
required to be made, under Midwest's contract with
Bishop Park, at either the building site or Midwest's
plant. In fact, City's contract with Bishop Park
stated that all floor penetrations were to be made
by "others. "
In essence , the drilling of holes at the site is
equivalent to the mass production of holes which
Midwest could have performed at its plant had it
not chosen to exercise its option under the contract
and field cut the openings . Midwest, in either situa-
tion, would have used the laborers represented by
the Laborers and this company practice supports an
award to laborers.'°
2. Employer's preference
The fact that Midwest clearly prefers an award to
the laborers is a factor which supports the assign-
ment to laborers.
10 See United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada , Plumbers Local
No. 219 , AFL-CIO ( Price Brothers Company), 174 NLRB 547
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Efficiency and economy of operation
The record reveals that more than 1,000
openings were to be drilled at Bishop Towers. Mid-
west introduced evidence that one laborer could
drill between 25 and 40 holes per day; the Plum-
bers evidence indicated that a plumber could drill
between 10 and 20 holes in the same period. The
Plumbers major argument is that plumbers could
lay out the markings for holes quickly and with
greater accuracy than laborers because of the
plumbers ' familiarity with the work . But the record
indicates that the plumbers ' foreman had to mark
the holes for both laborers and plumbers. No
evidence was introduced to show that the laborers'
work caused problems ; in fact , Bishop Park's su-
perintendent testified that he found no fault in their
work . This is a factor supporting assignment of the
disputed work to laborers.
4. Certification by the Board
On August 22 the Laborers was certified as the
collective -bargaining representative of all of Mid-
west 's production and maintenance employees, in-
cluding , inter alia , the erection crew members who
were assigned the hole -drilling task . While the cer-
tification described the unit as being "at" Mid-
west 's plant , it seems clear that the employees per-
forming the disputed work are within the unit
covered by this certification even though they
worked at the building site . This is still another fac-
tor favoring an award to the laborers.
5. Agreement between the Unions and the award
of the Joint Board
The National Joint Board , on January 16, 1970,
awarded the work in dispute to plumbers. This
award is one" factor supporting the Plumbers claim
to the work . However , since Midwest is not stipu-
lated to the Joint Board and, in fact, is still
negotiating an agreement with Laborers Local 894,
the Joint Board award cannot be regarded as deter-
minative of this dispute." Moreover , the award in
pertinent part merely stated that:
The work in dispute is governed by the deci-
sion of record of May 5, 1926 and shall be as-
signed to plumbers and steamfitters.
In the absence of an explanation of the factors re-
lied on by the Joint Board or supporting data that
might enable us to determine the degree of
deference that should be accorded the award, we
cannot assign it as much significance as we have to
Joint Board awards in other situations.12
6. Skills and work involved
The record indicates that little more than 2 hours
is required to learn how to safely and efficiently
operate the diamond core drill used to make the
openings involved herein . This is a neutral factor
not supporting assignment of the disputed work to
either laborers or plumbers.
CONCLUSIONS
On all the evidence , we determine the instant ju-
risdictional dispute in favor of the laborers, and
find that the employees of Midwest represented by
the Laborers , rather than plumbers represented by
the Plumbers , are entitled to perform the work of
field cutting holes at the Bishop Towers construc-
tion site . Company practice, employer preference,
certification by the Board , and efficiency and
economy of operation favor this result . Our present
determination to award the work to the employees
who are represented by the Laborers , but not to
that Union or its members, is limited to the particu-
lar controversy which gave rise to this proceeding.
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 these
cases , the National Labor Relations Board hereby
makes the following determination of dispute.
1. Employees who are employed by Midwest
Prestressed Corporation as laborers for the erection
of precast concrete products and who are currently
represented by Local 894, Laborers ' International
Union of North America, AFL-CIO, are entitled to
perform the work of cutting holes on the job at the
Bishop Towers construction site in Wickliffe, Ohio.
2. Plumbers Local 55, United Association of
Journeymen and Apprentices 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 or require the Employer to assign the above
work to plumbers who are represented by that
labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Plumbers Local 55,
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada , AFL-CIO, shall notify
the Regional Director for Region 8, in writing,
" Supra, fn 7
'= Supra, fn 10.
PLUMBERS LOCAL 55 905
whether it will refrain from forcing or requiring the ployees represented by Plumbers Local 55, rather
Employer , by means proscribed in Section than to employees represented by Local 894,
8(b)(4)(ii )( D), to assign the work in dispute to em- Laborers' International Union.