Plumbers, Local Union 447

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1152 (N.L.R.B. 1976)

1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the Unit-
ed States and Canada, Local Union No 447, AFL-
CIO and Bos Sheet Metal , Inc and Sheet Metal
Workers International Association , Local 162,
AFL-CIO Case 20-CD-479
from suppliers located outside the State of Califor-
nia Accordingly, we find that the Employer is en-
gaged in commerce or in an industry affecting com-
merce within the meaning of Section 2(6) and (7) of
the Act and it will effectuate the policies of the Act
to assert jurisdiction herein
June 18, 1976
DECISION AND ORDER QUASHING NOTICE
OF HEARING
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed on October 20, 1975, by Bos Sheet
Metal, Inc, herein called Bos or Employer, alleging
that United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, Local Union No 447,
AFL-CIO, herein called Plumbers, had violated Sec-
tion 8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing Bos to as-
sign certain work to employees represented by
Plumbers rather than to employees represented by
Sheet Metal Workers International Association, Lo-
cal 162, AFL-CIO, herein called Sheet Metal Work-
ers or Local 162 Pursuant to notice, a hearing was
held before Hearing Officer Donald R Rendall on
December 23, 24, and 31, 1975, at Sacramento, Cali-
fornia The Employer and the Plumbers appeared at
the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues I Thereaf-
ter, the Employer and the Plumbers filed briefs 2
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error The rulings are hereby
affirmed The Board has considered the entire record
in this case and hereby makes the following findings
I THE BUSINESS OF THE EMPLOYER
Bos is a sheet metal contractor engaged in the in-
stallation of air-conditioning equipment During the
past calendar year, in the course and conduct of its
business operations, Bos performed services in excess
of $50,000, and purchased goods valued in excess of
$50,000 from suppliers located within the State of
California who in turn purchased such goods directly
1 The Sheet Metal Workers was represented at the hearing but chose not
to file a formal appearance participate in the hearing or file a brief with the
Board
2 The Board received a motion from Apollo Aire Conditioning Inc the
Charging Party in Case 20-CD-482 requesting that that case be consolidat
ed with the instant proceeding The Board hereby denies the motion as
without merit
II THE LABOR ORGANIZATIONS
It is stipulated, and we find, that Sheet Metal
Workers and Plumbers are labor organizations with-
in the meaning of Section 2(5) of the Act
III THE DISPUTE
A The Work in Dispute
The work in dispute, as described in the notice of
hearing, consists of the installation of packaged resi-
dential air-conditioning systems, installation of pre-
charged freon pipes, uncrating and setting of con-
densing units, and starting and servicing residential
air-conditioning systems by contractor members of
the Sheet Metal Air Conditioning Contractors' Na-
tional Association (SMACNA) Sacramento Valley
Chapter, Inc, including Bos Sheet Metal, Inc, in the
following counties of the State of California Sacra-
mento, Yolo, Placer, Nevada, El Dorado, and Ama-
dor Notwithstanding the description, the particular
dispute in this proceeding relates only to the running
of air-conditioning lines at the Natomas Meadow
Residential Housing Project
B Background and Facts of the Dispute
The Employer is a subcontractor for the installa-
tion of air-conditioning units in the Natomas Mead-
ows Residential Housing Project The dispute herein
involves the same Unions, same Contractors' Associ-
ation (SMACNA), and some of the same type of
work as are involved in United Association of Journey
men and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, Local Union
No 447, AFL-CIO (Capitol Air Conditioning, Inc),
224 NLRB 985 (1976)
In a 1956 International level agreement between
the Plumbers and the Sheet Metal Workers, and a
1973 International level agreement which allegedly
interpreted the 1956 agreement as it applied to resi-
dential housing, discussed infra, the Unions had
agreed that certain of the work here in dispute should
be performed by plumbers, but that other work, also
in dispute, should be performed in accordance with
the contractor's assignment On July 15, 1975,' local
3 Unless otherwise specified all dates are 1975
224 NLRB No 61
PLUMBERS , LOCAL UNION 447 1153
and International representatives of the Plumbers
and Sheet Metal Workers met and further clarified
the 1973 agreement relative to the jurisdiction of the
Sacramento Building Trades Council
In July, Plumbers Business Agent James Berry ap-
proached the General Contractors' representative,
Lee Wilbert Traxel, and demanded the work of in-
stalling and hooking up the lines that run between
the air-conditioning units inside the houses and the
compressors outside the houses for employees repre-
sented by the Plumbers, whenever said work oc-
curred on the Natomas Meadows Project In Septem-
ber, Traxel was told by subcontractors Jack Mundy,
the owner of Crestmund Plumbing, and Bos that the
Plumbers, through Berry, was threatening to shut the
job down because the lines were being run or about
to be run by sheet metal workers instead of by
plumbers Plumbers Business Manager Jim Rotz tes-
tified that he had told Berry to pull the plumbers off
the job if the plumbers did not get this work Some-
time that month, over the telephone, agreement was
reached between Bos, Mundy, Berry, and Traxel,
that the work of installing the freon lines would be
subcontracted by Bos to Crestmund (There is no evi-
dence that a representative of the Sheet Metal Work-
ers was a party to the agreement) In October, Berry
learned that sheet metal workers employed by Bos
were being used to lay these lines in violation of the
September oral agreement On October 14, no
plumbers appeared on the job Although the plumb-
ers went to work the next day against Berry's instruc-
tions, he agreed with Traxel not to cause any further
trouble if he personally saw a purchase order written
by Bos Sheet Metal to Crestmund Plumbing for the
work of running the air-conditioning lines
C Contentions of the Parties
Plumbers contends that there is no jurisdictional
dispute in this case, because the only real work in
dispute is the installing of air-conditioning tubing
which the Sheet Metal Workers has agreed is work
belonging to employees represented by the Plumbers,
and therefore there is no disagreement between the
two Unions herein The Plumbers has filed a motion
to quash, seeking dismissal on that basis Plumbers
also contends that employees represented by it are
entitled to the work of installing air-conditioning
tubing under the 1956 and 1973 International agree-
ments as well as under the July 1975 Building Trades
Council agreement and the September 1975 agree-
ment relating to this jobsite Additionally, Plumbers
contends that the 1956 agreement provides a method
for the voluntary adjustment of the dispute and that
that procedure was used in 1973 and July 1975 Al-
ternatively, Plumbers contends that, even if the
Board finds that there is a jurisdictional dispute in
this case, employees represented by the Plumbers are
entitled to the work because of area practice and
their training and skills
The Employer contends that Plumbers has en-
gaged in conduct violative of Section 8(b)(4)(D) of
the Act and that a jurisdictional dispute exists The
Employer further contends that on the basis of past
practice, economy, and convenience the work should
be assigned to sheet metal workers represented by
Local 162, and that neither Local 162 nor any of its
members has disclaimed or declined to perform the
work
D Applicability of the Statute
Before the Board may proceed with the determina-
tion of dispute pursuant to Section 10(k) of the Act,
it must be satisfied that (1) there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated,
and (2) that the parties do not have an agreed-upon
method for the voluntary settlement of the dispute
With respect to (1) above, on October 14 the
plumbers did not report to work, and Berry told
Traxel that he would not stop causing difficulty until
he personally saw a purchase order from Bos to
Crestmund Plumbing for the work in dispute Ac-
cordingly, we find that reasonable cause exists to be-
lieve that Plumbers violated Section 8(b)(4)(D) of the
Act
With respect to (2) above, we find, for the reasons
stated below, and more completely stated in Capitol
Air Conditioning, Inc, supra, that agreed-upon meth-
ods exist for resolving this dispute inasmuch as all
parties to the dispute are required to submit their
jurisdictional disputes to the Impartial Jurisdictional
disputes Board (IJDB) for determination, and since
it appears that all parties are bound to a 1956 agree-
ment entered into between the Plumbers and the
Sheet Metal Workers International Unions Both the
Plumbers and the Sheet Metal Workers are members
of the Building and Construction Trades Depart-
ment, AFL-CIO (BCTD),4 and, as such, they are
bound to abide by its rules and procedures for the
settlement of jurisdictional disputes 5 The Employer
is likewise bound to this method of resolving jurisdic-
4 United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada Local Union No 447
AFL-CIO (Capitol Air Conditioning Inc) supra
5 Pipefitters Local No 195 United Association of Journeymen & Appren
aces of the Plumbing & Pipefitting Industry of the United States and Canada
(Cleveland Wrecking Company) 218 NLRB 172 (1975) Wood Wire and
Metal Lathers International Union and Its Local Union No 2 AFL-CIO
(Acoustical Contractors Association of Cleveland) 119 NLRB 1345 1345-47
(1958)
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional disputes by its membership in SMACNA As
we did in Capitol Air Conditioning, we take official
notice of the fact that SMACNA is a signatory to the
agreement establishing the IJDB and, as such, has
agreed to be bound by its procedures 6 In view of the
foregoing, we find, as we did in Capitol Air Condition-
ing, that all parties have agreed to be bound by a
determination of the IJDB
Additionally, the Plumbers and Sheet Metal
Workers International Unions executed an agree-
ment in 1956 which settles, as between the two
Unions, issues of a jurisdictional nature of certain
designated work, and also contains a procedure for
resolving disputes which were not specifically cov-
ered by that agreement The Employer is also bound
to these procedures on the basis of its collective-bar-
gaining agreement with the Sheet Metal Workers I
As we noted in Capitol Air Conditioning, it is not
clear whether the 1956 agreement was superseded by
the IJDB However, that agreement exists in any
event as an alternative agreed-upon means by which
this dispute can be resolved
Having found that all parties to this dispute are
bound to a voluntary method for the resolution of
this dispute through both the 1956 agreement and the
procedures established by IJDB, we shall quash the
notice of hearing issued herein 8
6 Sheet Metal Workers Local Union No 359 affiliated with Sheet Metal
Workers International Association AFL-CIO (ELT Piping) 217 NLRB 987
(1975)
7 For a full discussion of all relevant contractual provisions as to both
methods see Capitol Air Conditioning supra
8 In view of this we find it unnecessary to pass on the Plumbers motion to
quash based on its assertion that there is no longer a dispute between the
parties
ORDER
It is hereby ordered that the notice of hearing is-
sued in this proceeding be, and it hereby is, quashed
MEMBER JENKINS, dissenting
This case is similar to Capitol Air Conditioning,
Inc, 224 NLRB 985 (1976), in all the material
respects and I dissent here for the reasons I expressed
there
MEMBER WALTHER, dissenting
For the reasons fully set forth in my dissenting
opinion in Capitol Air Conditioning, Inc, 224 NLRB
985 (1976), I disagree with my colleagues' deci-
sion to quash the notice of hearing at this time As I
stated in Capitol Air Conditioning, Inc, I would pro-
vide the parties 10 days within which to present evi-
dence that the procedures of the IJDB or the proce-
dures set forth in the 1956 interim agreement are
available to resolve the dispute and have been or are
to be activated Then the Board should postpone ac-
tion through its 10(k) hearing procedure awaiting ac-
tual determination by the voluntary method agreed
upon 9 When it is clear that the voluntary method
will adjust the dispute, then, and only then, would I
quash the instant notice of hearing
For the reasons set forth in Capitol Air Conditioning Inc supra we do not
agree with Member Walther that before we quash the notice of hearing we
should have proof not only that an agreed upon method exists but also that
the method will be actuated by the parties and that the method will in fact
resolve the dispute For similar reasons we also reject Member Jenkins
position
9 Of course should the parties decide at any point during the 10(k) hear
mg to utilize a voluntary method for resolving the dispute I would stay
further Board proceedings pending completion of that procedure