Plumbers, Local Union No. 741

National Labor Relations Board - Board Decisions

Jul 1, 1981

256 N.L.R.B. 1022 (N.L.R.B. 1981)

1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry, Local
Union No. 741 and The Ashton Company, Inc.
and Laborers' International Union of North
America, Local No. 479. Case 28-CD-195
July 1, 1981
DECISION AND DETERMINATION OF
DISPUTE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by The Ashton Company, Inc.,
herein called the Employer, alleging that United
Association of Journeymen and Apprentices of the
plumbing and Pipefitting Industry, Local Union
No. 741, herein called the Plumbers, had violated
Section 8(b)(4)(D) of the Act by engaging in cer-
tain proscribed activity with an object of forcing
or requiring the Employer to assign certain work
to its members rather than to employees represent-
ed by Laborers' International Union of North
America, Local No. 479, herein called the Labor-
ers.
Pursuant to notice, a hearing was held before
Hearing Officer Gregory Z. Meyerson on October
15, 16, and 17, November 6, 7, and 12, and Decem-
ber 3, 1980. All parties appeared and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues. Thereafter, the Employer and the
Plumbers filed briefs.
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:
1. THE BUSINESS OF THE MPI.OYER
The parties stipulated, and we find, that the Em-
ployer, an Arizona corporation with its principal
place of business in Tucson, Arizona, is engaged in
business as a construction contractor. During the
past year, the Employer purchased goods from di-
rectly outside the State of Arizona having a value
in excess of $50,000. The parties also stipulated,
and we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that the
Plumbers and the Laborers are labor organizations
within the meaning of Section 2(5) of the Act.
256 NLRB No. 149
III. THE DISPUTE
A. Background and Facts of the Dispute
The American Smelting and Refining Company,
herein called ASARCO, operates a copper mine
and copper smelting facility, known as the Mission
Mine, at Sahuarita, Arizona. ASARCO utilizes a
flotation circuit system composed of piping to
process mined ore into copper ore concentrate and
other byproducts. The process pipe is made of
steel, cast iron, copper, or plastic, depending upon
what substance it is to carry and whether that sub-
stance is under pressure.
The Employer was awarded a contract by
ASARCO to construct a replacement flotation cir-
cuit at the Mission Mine. At a March 18, 1980,'
prejob conference with representatives of a number
of building trades unions, the Employer announced
that it was assigning the process piping work on
the project to employees represented by the Labor-
ers rather than to employees represented by the
Plumbers. The Plumbers representatives at the
prejob conference protested this assignment and
claimed the process piping work for employees
represented by the Plumbers. The Employer reject-
ed this claim and adhered to its assignment to em-
ployees represented by the Laborers.
Subsequently, the Plumbers, through its Interna-
tional Union, filed a claim to the process piping
work with the Impartial Jurisdictional Disputes
Board, herein called IJDB. Consistent with past
practice, the Employer and its collective-bargain-
ing representative, the Arizona Chapter of the As-
sociated General Contractors, herein called AGC,
informed the IJDB that neither the AGC, its mem-
bers, nor the Employer were stipulated to or bound
by the IJDB and would not abide by its decision.
At its meeting of April 24, the IJDB awarded
the process of piping work in question to employ-
ees represented by the Plumbers, and the Employer
was so notified on the next day. On May , the
Plumbers sent a telegram to the Employer demand-
ing that it honor the IJDB decision and reassign
the work to employees represented by the Plumb-
ers. The Employer ignored this demand. On May
5, the Plumbers commenced picketing at the Em-
ployer's jobsite at the Mission Mine. The picket
signs read as follows:
The Ashton Company Unfair to Plumbers and
Pipefitters U.A. Local 741. Ashton Company
refuses to comply with work assignment
awarded by Impartial Jurisdictional Disputes
Board, 4/25/80
i All dates are il 1980 unless otherwise indicated.
PLUMBERS, LOCAL UNION NO. 741 1023
The Plumbers picketing continued until approxi-
mately August 7, when it ceased as a result of the
filing with the U.S. District Court of a petition for
injunction under Section 10(1) of the Act.
B. The Work in Dispute
The work in dispute involves the installation by
the Employer of all process piping, including
water, air, slurry, mill water, reagent, and line
slurry piping, at the ASARCO Mission Unit Con-
centration in Sahuarita, Arizona.
C. The Contentions of the Parties
The Plumbers contends that the Board should
quash the notice of hearing in the instant case be-
cause all three parties to the proceeding are con-
tractually bound to the procedures and awards of
the IJDB for the resolution of the jurisdictional
dispute in question. If, however, the Board deter-
mines that there is no agreed-upon method for the
voluntary resolution of the dispute herein, the
Plumbers contends that the employees represented
by it are entitled to be awarded the disputed work
on the basis of the factors of trade and area prac-
tice, skills, and efficiency of operations.
Conversely, the Employer contends that it never
has been bound to the awards of the IJDB either in
practice or through any of the collective-bargain-
ing agreements entered into on its behalf by the
AGC. Thus, the Employer submits that the Board
should proceed to the merits of the disputes, and
award the work to employees represented by the
Laborers on the basis of the Board's traditional cri-
teria, specifically the Employer's collective-bar-
gaining contract with the Laborers, and the factors
of skills, employer preference, and efficiency.
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.
It is undisputed that from May 5 until approxi-
mately August 7 the Plumbers picketed at the
ASARCO Mission Mine jobsite with signs stating
that the Employer was refusing to comply with the
IJDB's work assignment award of April 24. On
May , the Plumbers had sent a telegram to the
Employer demanding that it implement the IJDB
award and assign the disputed work to employees
represented by the Plumbers. At various times as a
result of the picketing, craft employees of the Em-
ployer stopped working, and there were interrup-
tions in deliveries to the Employer by third-party
suppliers not involved in the dispute.
Lee Ziegler, the Employer's vice president, testi-
fied at the hearing in this proceeding that after the
picketing commenced he asked the Plumbers busi-
ness agent, Kenneth Phillips, what it would take to
get the pickets removed and that Phillips replied
they would be removed if employees represented
by the Plumbers were assigned the process piping
work. According to Ziegler, when he then asked
how such could be accomplished inasmuch as the
Employer did not have a collective-bargaining
agreement with the Plumbers, Phillips answered
that the Employer either could sign a contract
with the Plumbers or subcontract the work to a
contractor that employed members of the Plumb-
ers.
The evidence shows that an object of the Plumb-
ers picketing was to force or require the Employer
to assign the process piping work to employees
represented by the Plumbers. In view of the fore-
going, we find that reasonable cause exists to be-
lieve that Section 8(b)(4)(D) of the Act has been
violated. As noted above, however, the Employer
and the Laborers disagree with the Plumbers as to
whether there is an agreed-upon method for the
voluntary adjustment of the dispute to which all
parties are bound.
This disagreement centers on the interpretation
of a clause in the AGC's Master Labor Agreement,
herein called the MLA, with five unions knowns as
the basic crafts. These five unions are the Carpen-
ters, Cement Masons, Laborers, Operating Engi-
neers, and Teamsters. As a member of the AGC,
the Employer is a party to the MLA. The clause in
question provides, in part, as follows:
1101.--All jurisdictional disputes with AFL-
CIO Building Trades Sub Crafts shall be deter-
mined in the manner and by the procedure es-
tablished by the Building and Construction
Trades Department of the AFL-CIO through
the National Joint Board for the Settlement of
Jurisdiction Disputes in the Building and Con-
struction Industry. Such decisions shall be final
and binding upon and put into effect by the
Contractor and the Union without delay.
1101.3.9-If, and, when the Parties signatory
hereto become a part of a National Joint
Board for the Settlement of Jurisdictional Dis-
putes or other similar National Plan, said Plan
shall supersede the provisions contained in this
Article 11, 1101.1 and 1101.2, and the Parties
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mutually agree to be bound by and implement
said new Plan.
All parties agree that the term "Sub Crafts" in
the above language refers to those unions that are
not a party to the MLA, such as the Plumbers. The
Plumbers contends that the quoted section 1101.1
clearly means that signatory contractors-including
the Employer-are bound to the awards of the
IJDB when the dispute involves a signatory union,
such as the Laborers, and a nonsignatory subcraft,
such as the Plumbers. In addition, the Plumbers
argues that it and the Laborers are bound to the
IJDB by virtue of their respective International
Unions' affiliation with the Building and Construc-
tion Trades Department of the AFL-CIO.
It is the Employer's position (as well as the
AGC's) that the only contractors bound to IJDB
procedures and awards under section 1101.1 of the
MLA are nonsignatory subcontractors employing
members of subcrafts. Thus, two AGC officials tes-
tified that section 1101.1 was intended to aid the
five signatory basic craft unions in the event of ju-
risdictional disputes with nonsignatory unions as-
signed work by subcontractors, and was not meant
to bind signatory contractors to the IJDB.
The Laborers takes the same position as the Em-
ployer and AGC on the meaning of section 1101.1.
In fact, all of the parties to the MLA who testified
at the hearing, including a witness called by the
Plumbers, stated that the AGC and its members are
not stipulated or bound to the IJDB. For example,
a former Operating Engineers official, Charles
Featherston, who headed the basic craft unions' ne-
gotiating teams during the 1979 bargaining on the
MLA, explained that the purpose of Section 1101.1
was to protect the five signatory unions from
losing work to employees of nonsignatory subcon-
tractors engaged by employers that are parties to
the MLA. This view is supported by the language
of section 1101.3.9 of the MLA, quoted above,
which indicates that the signatories to the agree-
ment are not yet part of the IJDB process.
Sections 1101.2 and 1101.3 of the MLA provide
that jurisdictional disputes arising between signato-
ry unions are to be resolved by recourse to local
procedures set forth in those sections, with no role
played by the IJDB. The MLA thus distinguishes
between the methods to be used in deciding juris-
dictional disputes involving subcrafts and those in-
volving signatory unions. The mechanism estab-
lished in the MLA for a binding award by the
IJDB only comes into operation when a signatory
employer subcontracts to a nonsignatory union
work that is claimed by a signatory union.
Subsequent to the IJDB decision awarding the
disputed work to employees represented by the
Plumbers, representatives of the AGC and the five
unions signatory to the MLA signed a memoran-
dum of understanding regarding the intent of sec-
tion 1101.1. The memorandum, dated May 27,
states that the parties to the MLA do not intend to
bind the signatory employers to the IJDB, but
rather that section 1101.1 was designed to allow
the signatory unions to participate in IJDB pro-
ceedings "with respect to subtrades other than the
basic crafts only."
Although the Plumbers contends that the memo-
randum is a self-serving attempt to circumvent
IJDB awards, we perceive no legal reason why the
signatory parties to the MLA may not voluntarily
reform or clarify their collective-bargaining agree-
ment in such a manner.
Even without reference to the memorandum of
understanding, however, we would not interpret
section 1101.1 as permitting a union that is not an
MLA signatory to bind a signatory employer to an
IJDB award setting aside a work assignment to em-
ployees represented by a union that is party to the
agreement. We conclude that only a signatory
union may invoke the IJDB procedures set forth in
section 1101.1, and then only when a nonsignatory
subcontractor has been assigned the work. Neither
of those conditions is present in the instant case, in-
asmuch as the Employer assigned the disputed
work to its own employees represented by a signa-
tory union.
We also note the Plumbers argument that the
Laborers are bound to the IJDB award as a result
of the Laborers International's affiliation with the
Building and Construction Trades Department of
the AFL-CIO. It is not clear that the Laborers
Local involved herein is automatically bound to
the IJDB simply because its International apparent-
ly is so bound. In any event, any obligation to the
IJDB on the part of the Laborers and the Plumbers
does not bind the AGC or the Employer to that
tribunal's procedures. As discussed above, consist-
ent with both longstanding practice and the current
MLA, the AGC gave written notice to the IJDB
that the AGC and its members would not partici-
pate in the IJDB proceedings, nor be bound by its
award.
Accordingly, we find that there is no voluntary
method for the adjustment of this dispute, since all
parties are not bound to the IJDB procedure.
Therefore, we conclude that this dispute is proper-
ly before the Board for determination under Sec-
tion 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
PLUMBERS. LOCAL UNION NO. 741 1025
giving due consideration to various factors. 2 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. 3
1. Certification and collective-bargaining
agreements
Neither the Laborers nor the Plumbers has been
certified by the Board as bargaining agent for the
Employer's employees with respect to performance
of the work in dispute. Thus, certification is not a
factor favoring either group of employees.
The Employer does not have and has never had
a contract with the Plumbers. On the other hand,
the Employer is party to a current collective-bar-
gaining agreement with the Laborers-namely, the
MLA. The MLA contains a specific classification
for Laborers performing process piping work, and
therefore the disputed work is covered by that col-
lective-bargaining agreement. In addition, the Em-
ployer states that the principal basis for its assign-
ment of the work to the Laborers was the existence
of the MLA. Accordingly, the factor of collective-
bargaining agreements favors an award of the work
to employees represented by the Laborers.
2. Employer practice and preference
Lee Ziegler, the Employer's vice president, testi-
fied that the Employer always has used employees
represented by the Laborers to do its process
piping work, with the only exceptions being those
instances when the work was subcontracted out to
another employer. In this regard, the Employer
submitted and described a list of its past construc-
tion projects on which employees represented by
the Laborers have done process piping work simi-
lar to, or identical with, the disputed work. Fred
Brown, business agent for the Laborers, confirmed
the Employer's data with regard to the Laborers
past performance of process piping work for the
Employer.
The Plumbers presented evidence showing that
employees represented by it also have in the past
performed process piping work on projects of the
Employer. However, in every instance where such
was the case, the employees were not employed by
the Employer, but rather by a subcontractor en-
gaged by the Employer, and those subcontractors
were party to a collective-bargaining agreement
with the Plumbers.
2 N.L.R.B. v. Radio & Television Broadcast Engineers Union. Local
1212. International Brotherhood of Electrical Workers. A4FL-CIO [Colum-
bia Broadcasting System]. 364 U S. 573 (1961)
3 International .4ssociation of Machinists, Lodge No. 1743. AFL-CIO (J
A. Jones Construction Company), 135 NLRB 1402 (1962)
Ziegler testified that, on those occasions when
the Employer has chosen to subcontract process
piping work to employers whose employees are
represented by the Plumbers, it has done so either
because it was engaged in too many other projects
at the same time, or in order to spread the risk on a
particular project. He explained that, where, as in
the case of the ASARCO Mission Mine job in
question, the Employer elected to perform the
process piping work with its own employees, the
assignment to workers represented by the Laborers
was mandated by the MLA.
With respect to employer preference, several of-
ficials of the Employer stated unequivocally that
they prefer employees represented by the Laborers
over employees represented by the Plumbers for
performance of the work in dispute. Accordingly,
we find that the factors of employer practice and
preference favor awarding the disputed work to
employees represented by the Laborers.
3. Area and industry practice
Fred Brown, the Laborers business agent, testi-
fied that in his experience construction contractors
in the area consistently had used employees repre-
sented by the Laborers for process piping work,
and he identified a number of projects on which
they performed such work.
On the other hand, the Plumbers introduced
much evidence of process piping work done in the
area by employees whom it represents. Ken Phil-
lips, business manager for the Plumbers, testified
that throughout the State of Arizona the installa-
tion of process piping at minesites, as well as most
industrial process piping, has been performed by
the State's two Plumbers Locals.
The record indicates that the choice of whether
to assign process piping work to employees repre-
sented by the Plumbers or the Laborers depends
upon the relevant collective-bargaining agreement.
Employers signatory to contracts with the Plumb-
ers award such work to employees represented by
the Plumbers, and those signatory with the Labor-
ers assign the work to employees represented by
the Laborers. Thus, we find that the factor of area
and industry practice does not favor awarding the
work to one group of employees rather than to the
other.
4. Relative skills
Witnesses for both the Plumbers and the Labor-
ers testified that the skills required to install proc-
ess piping include the ability to weld, to fabricate
pipe connections and fittings, to work with plastic
piping, and to install mechanical or victaulic cou-
plings. The work in dispute is part of the appren-
1026 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticeship training programs sponsored by each
union, and the record shows that both groups of
employees have satisifactorily performed the work
in dispute or similar work. Accordingly, we con-
clude that the matter of relative skills is a neutral
factor in reaching our determination.
5. Economy and efficiency of operation
The Employer asserted that in terms of its over-
all operation it is more efficient to use employees
represented by the Laborers instead of those repre-
sented by the Plumbers. While employees repre-
sented by the Laborers are paid for the time spent
doing process piping work at the applicable rate
under the MLA, the Employer pointed out that
they only spend about 60 percent of their worktime
actually doing process piping, and can be utilized
doing other work under general laborer classifica-
tions during the remaining time on the job. James
Barber, the project manager for the Employer at
the Mission Mine, stated that the ability to use La-
borers for other types of work enables the Employ-
er to maintain a nucleus of key personnel when
proceess piping is not being performed.
On the basis of the foregoing, we find that the
factor of economy and efficiency of operation
favors employees represented by the Laborers.
6. Joint Board awards
As noted above, the IJDB awarded the work in
dispute to employees represented by the Plumbers
on April 24, 1980. In addition, the Plumbers of-
fered into evidence numerous other 1JDB decisions
awarding similar work to employees represented
by the Plumbers rather than to those represented
by the Laborers. Accordingly, this factor favors
awarding the disputed work to employees repre-
sented by the Plumbers.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by the
Laborers are entitiled to perform the work in dis-
pute. We reach this conclusion relying on the fac-
tors of collective-bargaining agreements, the Em-
ployer's preference and past practice, and economy
and efficiency of operation. In making this determi-
nation, we are awarding the work in question to
employees who are represented by the Laborers,
but not to that Union or its members. The present
determination is limited to the particular controver-
sy which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees of the Ashton Company, Inc., who
are represented by Laborers' International Union
of North America, Local No. 479, are entitled to
perform the installation of all process piping, in-
cluding water, air, slurry, mill water, reagent, and
line slurry piping, at the ASARCO Mission Unit
Concentration in Sahuarita, Arizona.
2. United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry,
Local Union No. 741, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
or require The Ashton Company, Inc., to assign
the disputed work to employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, United Association
of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry, Local Union No. 741,
shall notify the Regional Director for Region 28, in
writing, whether or not it will refrain from forcing
or requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disput-
ed work in a manner inconsistent with the above
determination.