Plumbers Local Union No. 208

National Labor Relations Board - Board Decisions

Oct 17, 1972

199 N.L.R.B. 790 (N.L.R.B. 1972)

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, Local Union No. 208 and Local
Union No. 3, AFL-CIO and Midwest Engineering
Service, Inc. and Local Union No. 9, Sheet Metal
Workers' International Association, AFL-CIO.
Case 27-CD-134
tems. It regularly performs such service for customers
outside the State of Colorado and the annual value of
such work is in excess of $50,000.
We find that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the policies of the
Act to assert jurisdiction herein.
October 17, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Midwest Engineering Service, Inc.,
herein called the Employer, alleging that United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, Local Union No. 208, AFL-CIO,
herein called Local 208, had violated Section
8(b)(4)(D) of the Act.' Pursuant to notice, a hearing
was held in Denver, Colorado, before Hearing Officer
Merrill M. McLaughlin on February 22 and 23 and
March 13 through 16, 1972. All parties appeared and
were afforded full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to present evi-
dence bearing on the issues. Thereafter, the Employer,
Local 208, and Local 9 each filed briefs which have
been duly considered by the Board.
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 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 affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. BUSINESS OF THE EMPLOYER
The Employer, a Colorado corporation whose
principal office is in Denver, Colorado, is engaged in
testing, adjusting, and balancing climate control sys-
1 At the hearing , United Association of Journeymen and Apprentices of
the Plumbing and Pipefittmg Industry of the United States and Canada,
Local Union No 3, AFL-CIO, herein called Local 3, also named as a
Respondent , moved to dismiss the complaint and quash the notice of hearing
as to It on the grounds that no testimony had linked Local 3 to any alleged8(bX4)(D
) violation or to any claim for the work in dispute Neither Local
Union No. 9, Sheet Metal Workers' International Association , AFL-CIO,
herein called Local 9, nor the Employer opposed the motion . Local 3's
motion is hereby granted.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Pipefit-
ters and Sheet Metal Workers are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer has been engaged in the business
of testing, adjusting, and balancing the air and hy-
dronic 2 portions of climate control systems since Jan-
uary 9, 1962. The Employer provides this service only;
it does no design engineering, installation, or repair
work.
When it began operation the Employer utilized
sheetmetal workers represented by Local 9 to do air
balancing and pipefitters represented by Local 208 for
hydronic balancing. Pursuant to this division of work,
the Employer entered into collective-bargaining
agreements with Local 9 and Local 208 in 1967 and
1968, respectively. In December 1970, after a 2-year
hiatus, the Employer decided to reaffiliate with the
Associated Air Balance Council, hereinafter referred
to as the Council, an association formed in 1965 by a
number of companies engaged in the independent
testing, adjusting, and balancing of climate control
systems. Upon reaffiliation with the Council the Em-
ployer was required to become a signatory to the na-
tional agreement between the Council and the Sheet
Metal Workers' International Association which pro-
vided that all the Employer's balancing technicians
must be represented by a Sheet Metal Workers local.
Subsequently, on March 24, 1971, the Employer
notified Local 208 that it would not renew its agree-
ment with that local when it expired on June 1, 1971.
On June 1, the Employer offered to retain three pipe-
fitter employees covered by Local 208's agreement if
they were willing to work under the terms and condi-
tions of the agreement between the Council and the
Sheet Metal Workers' International Association. The
three employees refused and the Employer terminated
them that day. Thereafter, the Employer -abided by
the terms of the Council's agreement with the Sheet
Metal Workers' International Association and as-
2 The hydronic portion of a climate control system utilizes water for heat-
ing or cooling.
199 NLRB No. 87
PLUMBERS LOCAL UNION NO. 208
signed the work of testing, adjusting, and balancing
both the air and hydronic portions of climate control
systems to employees represented by Local 9.
The events which gave rise to this case occurred
on July 27, 1971, at Buckley Air National Guard Base
in Denver, Colorado, at a building under construction
known as the Air Force Department of Aerospace
Data Facility. When one of the Employer's balancing
technicians , a member of Local 9, went to the jobsite
to start testing, adjusting, and balancing both the air
and the hydronic portions of the climate control sys-
tem, he was immediately informed by a Local 208
steward that only members of the Pipefitters Union
would be permitted to perform the work on the hy-
dronic system. Shortly thereafter, other balancing
technicians of the Employer started the work of bal-
ancing the air system; no craft objected to the
Employer's technicians performing this portion of the
work. After Local 208 's members , employed by Mae-
con, Inc., the mechanical contractor on the job,
threatened to walk off the entire job if balancing tech-
nicians who were not members of their craft per-
formed the work on the hydronic system, Maecon,
Inc., in order to resolve the dispute, assigned one of
its employees who was a member of Local 208 to
accompany the Employer's balancing technicians and
turn the valves fitted to the hydronic portion of the
climate control system. The next day the business
agent for Local 9 appeared at the jobsite and told the
job steward for Local 208 that the work of hydronic
balancing was claimed by the balancing technicians
of the Employer who were represented by Local 9.
The work was completed in August 1971 in accord-
ance with the arrangement established by the me-
chanical contractor.
B. The Work in Dispute
The work in dispute involves the testing, adjust-
ing, and balancing of the hydronic portions of climate
control systems performed by the Employer, includ-
ing that done at the Buckley Air National Guard Base
in Denver, Colorado. '
C. Contentions of the Parties
Local 208 claims that the Board lacks jurisdiction
to make an award as there is no dispute within the
meaning of the Act. It argues that Local 9-made no
claim to perform the hydronic balancing work in-
volved in this case, other than its claim at the hearing.
Furthermore, Local 208 contends that there is no rea-
sonable cause to believe that it violated Section
8(b)(4)(D) inasmuch as its actions were merely an
791
attempt to preserve work for its members, which
tasks, it asserts, Local 208's pipefitters have tradition-
ally performed. Local 208 argues that assignment by
the Employer of the disputed work to sheetmetal
workers does not merit consideration since its assign-
ment was not voluntarily effected; it argues that the
only reason the Employer changed the assignment
was that it had to comply with the requirements of the
Council. Local 208 states, moreover, that the func-
tions of air balancing and hydronic balancing are per-
formed separately for the most part and, in many
cases, they are done on a piecemeal basis which re-
quires the employee to leave the jobsite and return
when the system is further advanced. Also, the
Employer's jobs are awarded to it on a hydronic or air
balancing basis, Local 208 argues. Finally, Local 208
asserts that the economy factor of the work involved
favors the use of pipefitters.
Local 9 claims the disputed work by virtue of the
agreement between the Sheet Metal Workers' Inter-
national Association and the Council, of which the
Employer is a member. Further, Local 9 claims that
the balancing technicians employed by the Employer
who are members of Local 9 are competent to do the
work and have the contractual right to do so.
The Employer argues that the work should be
awarded to the sheetmetal employees to whom it has
assigned the disputed work. The Employer contends
that the work of testing, adjusting, and balancing air
and hydronic portions of climate control systems is a
quasi-engineering function which does not involve
skills already developed, used, or applied by either
pipefitters or sheetmetal workers in the traditional
aspects of their craft. The Employer states that it is
bound by the terms of the agreement between the
Council and the Sheet Metal Workers' International
Association and its agreement with Local 9. The Em-
ployer further contends that its work assignment is
favored by the practices of like independent bal-
ancing concerns, and that it would be more efficient
to employ a single technician to perform the interre-
lated and interdependent tasks of balancing air and
hydronic portions of climate control systems.
D. Applicability of the Statute
Before the Board may proceed to 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. The
record shows that the Employer assigned the disputed
work to its employees, who are represented by Local
9, and that Local 208 on July 27, 1971, demanded that
the Employer reassign this work to pipefitters whom
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it represented. As the record reveals that Local 208
threatened to walk off the entire Buckley job to en-
force its demands for the assignment of the work, we
find that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated.
We find no merit in Local 208's claim that by its
actions it was merely seeking to preserve work for its
displaced members. In Waterway Terminals Company,
185 NLRB No. 35, the Board held that where a union
by its conduct merely seeks the reemployment of spe-
cific dislocated workers and the continued application
of the collective-bargaining agreement covering them,
such a dispute is not the type of controversy Congress
intended the Board to resolve pursuant to Sections
8(b)(4)(D) and 10(k). Here, however, the record is
devoid of any demand for the reemployment of the
three pipefitters represented by Local 208 whom the
Employer discharged on June 1, 1971, and for the
continued application of the expired collective agree-
ment to them. Indeed, that the instant dispute in no
way involved the employment interest of these pipefit-
ters is clearly indicated by the Employer's offer of
employment to all three. On the other hand, Local 208
made a demand for the disputed work and, without
ever requesting that the Employer rehire the dis-
charged pipefitters, it threatened to stike if the tasks
were not assigned to its members generally. It is there-
fore clear that Local 208's actions were of the type
Congress sought to remedy by the application of Sec-
tions 8(b)(4)(D) and 10(k).
Moreover, contrary to Local 208's contention,
Local 9 has not made any disclaimer of any of the
work its members perform in testing, adjusting, and
balancing the hydronic portions of climate control
systems.
The record fails to show that the Employer is a
party to an agreed-upon method for the voluntary
adjustment of such disputes. Accordingly, since the
Employer is not bound, it is unnecessary to consider
whether the other parties are bound by similar proce-
dures?
Accordingly, from the above we find that the
matter is properly before the Board for determination
under Section 10(k) of the Act.
1. Certification and collective-bargaining
agreements
There is no Board certification determining the
bargaining representative for the employees assigned
to perform the work in dispute.
The Employer has been a party to a collective-
bargaining agreement with Local 9 since January 9,
1967. Until January 1, 1971, it only covered employ-
ees who were engaged in air balancing. On that date,
the Employer reaffiliated with the Council and thus
became bound by the agreement between the Council
and the Sheet Metal Workers' International Associa-
tion which specified that it had to utilize employees
represented by Sheet Metal Workers to perform work
on both the air and hydronic portions of climate con-
trol systems.
The Employer's only agreement with Local 208
was effective from July 18, 1968, to June 1, 1971;
pursuant thereto it assigned the work of hydronic bal-
ancing to those pipefitter employees who were repre-
sented by that local. As noted above, on March 24,
1971, the Employer gave Local 208 notice that be-
cause it had reaffiliated with the Council it would not
renew its agreement with that local when it expired on
June 1, 1971.
2. Employer's assignment and practice
Since the expiration of its agreement with Local
208, the Employer has assigned all of its work on the
hydronic portions of climate control systems to em-
ployees represented by Local 9.
The Employer performs at least 75 percent of all
testing, adjusting, and balancing of air and hydronic
portions of climate control systems among the con-
cerns engaged in such work in the Denver and other
Colorado areas. Inasmuch as the Employer is the
dominant independent balancing concern within the
State of Colorado, the Employer's practice is tanta-
mont to the area practice.
The record also shows that the Pipefitters has no
members working for any independent balancing
companies within the State of Colorado.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work after
giving due consideration to all relevant factors in-
volved. The following factors are relevant in making
a determination of the dispute before us.
3 International Association ofBridge, Structural and Ornamental Iron Work-
ers, Local Union No 3, AFL-CIO (Dickerson Structural Concrete Corp.), 195
NLRB No. 90.
3. Relative skills, efficiency, and economy of
operations
The Employer favors an award to its employees
represented by Local 9 because of their skills and
training and the resulting efficiency and economy of
operations.
It has been the Employer's experience that nei-
ther union can furnish members who are fully qual-
ified to engage in the total process of testing,
balancing, and adjusting air and hydronic systems.
PLUMBERS LOCAL UNION NO. 208
The Employer had found, however, that it has had
more success training sheetmetal workers than pipe-
fitters. Furthermore, Local 208, whose members have
some training in the balancing and adjusting of hy-
dronic systems, does not claim that its members are
competent in the balancing of air systems. Due to the
integrated nature of air and hydronic balancing, it is
more efficient for one man to be skilled in both air
and hydronic balancing. Moreover, members of Local
208 have had no experience in preparing the balance
reports which are part of the Employer's operation, a
task now performed by its employees represented by
Local 9.
Thus, if required to assign this work to pipefitters
represented by Local 208, the Employer would have
to bear the burden and expense of training additional
employees to properly perform the work. And the
Employer would be forced to lay off sheetmetal work-
ers in order to hire pipefitters. Additionally, such frag-
mentation of the integrated process of balancing air
and hydronic portions of climate control systems
would needlessly waste time, lower overall productiv-
ity, and raise production costs 4
We are, therefore, persuaded that all of the above
cited factors favor an award of the work to the
Employer's own employees, who are represented by
Local 9.
Conclusion
Upon the entire record in this proceeding, and
after full consideration of all the relevant factors, in
particular the contractual relationship between the
Employer and the Sheet Metal Workers, the
Employer's practice, the nature of the work involved,
the skills and training required, and efficiency and
economy of operations, we conclude that the employ-
ees of the Employer who are represented by Local 9
are entitled to work in question and we shall de-
termine the dispute in their favor. In making this de-
termination, we award the work to the employees of
4 See Kahoe Air Balance Co., 197 NLRB No. 17, and Precisionaire, Inc,
d/b/a Mechanical Balancing Company, 195 NLRB No. 127.
793
the Employer who are represented by Local 9 but not
to that Union or its members.'
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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees employed by Midwest Engineering
Service, Inc., who are represented-by Local Union
No. 9, Sheet Metal Workers' International Associa-
tion, AFL-CIO, are entitled to perform the work in
dispute which involves testing, adjusting and bal-
ancing the hydronic portions of climate control sys-
tems at the Aerospace Data Facility at Buckley Air
National Guard Base located in Denver, Colorado.
2. United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of
the United States and Canada, Local Union No. 208,
AFL-CIO, is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require Mid-
west Engineering Service, Inc., Denver, Colorado, to
assign the above work to pipefitters 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 of the United States and Canada,
Local Union No. 208, AFL-CIO, shall notify the Re-
gional Director for Region 27, in writing, whether it
will refrain from forcing or requiring Midwest Engi-
neering Service, Inc., by means proscribed by Section
8(b)(4)(D), to assign the work in dispute in a manner
inconsistent with the above determination.
5 The Employer urges that the Board determine that the Employer has the
right to use sheetmetal workers, rather than pipefitters, whenever the work
of testing, adjusting, and balancing the hydronic portions of climate control
systems is done in Colorado However , as the record will not support an order
of such scope, we shall limit our award to thejobsite where the instant dispute
arose. Local 395, Bridge, Structural and Ornamental Iron Workers, AFL-CIO
(Telander Bros Contractors, Inc), 196 NLRB No. 19; Laborers' International
Union of North America Local 935, AFL-CIO (Interstate Drywall, Inc.), 191
NLRB No 93