Plumbers Union Local No. 15

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 455 (N.L.R.B. 1981)

PLUMBERS UNION LOCAL NO. 15
Plumbers Union Local No. 15, United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada, AFL-CIO and Minnesota Tile
Supply Company. Case 18-CD-262
September 30, 1981
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Minnesota Tile Supply Compa-
ny alleging that Plumbers Union Local No. 15,
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, violated
Section 8(b)(4)(D) of the Act by engaging in cer-
tain proscribed activity with an object of forcing
or requiring Minnesota Tile to assign certain work
to employees represented by Local 15 rather than
to employees of DMCO, Inc.
Pursuant to notice, a hearing was held before
Hearing Officer Larry L. Witherell on March 19
and April 15, 1981,' and was closed on May 5,
1981. Minnesota Tile and Local 15 appeared at the
hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. DMCO
did not appear at the hearing. Thereafter, Minneso-
ta Tile and Local 15 filed briefs which have been
duly considered.
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 af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that Minne-
sota Tile, a Minnesota corporation with its princi-
pal place of business in Minneapolis, Minnesota, is
engaged in the business of supplying ceramic tile
and related products. During the past 12 months,
Minnesota Tile, in the course and conduct of its
'Thereafter, Minnesota Tile filed with the Board three requests for
special leave to appeal evidentiary rulings made by the Hearing Officer.
By telegraphic order of May I. 1981. the Board denied the requests as
lacking in merit.
258 NLRB No. 64
business operations, received at its Minneapolis,
Minnesota, facility goods and materials valued in
excess of $50,000 from local suppliers which, in
turn, purchased and received these products direct-
ly from points located outside the State of Minne-
sota.
Based on the foregoing, we find that Minnesota
Tile Supply Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act, and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Plumb-
ers Union Local No. 15, United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
1ll. THE DISPUTE
A. Background and Facts of the Dispute
Finance/Design/Construct, Inc. (herein FDC), is
a general contractor engaged in the construction of
a Holiday Inn in Bloomington, Minnesota. On
August 12, 1980, Minnesota Tile entered into a
contract with FDC to purchase, fabricate, and in-
stall corian vanity tops and bowls in approximately
300 guest bathrooms and public restrooms at that
jobsite. Thereafter, on February 8, 1981,2 Minneso-
ta Tile subcontracted the fabrication and installa-
tion of the corian vanity tops and bowls to
DMCO, Inc. DMCO then assigned this work to its
own employees who are currently unrepresented.
The method of installing and fabricating vanities
at the Bloomington Holiday Inn is a new process in
that the corian bowl is a separate unit from the
vanity top.3 Under this process, the DMCO em-
ployees must fabricate the vanity tops and bowls so
that they fit together. These employees initially cut
a hole in the vanity top using a template. The next
step is to fabricate the bowl which is sold in an un-
finished state by the manufacturer. On a specially
designed router table, the DMCO employees make
two cuts to the underside of the bowl's rim so that
it will have a uniform outer edge and will fit prop-
erly into the hole in the vanity top. They also cut a
finishing notch on the top of the bowl to enhance
its appearance. Then, after caulking the bottom of
the fabricated bowl, the DMCO employees insert
the bowl into the vanity top.
2 All dates are in 1981, unless otherwise indicated.
a Formerly, the manufacturer produced the vanity top and bowl as a
single item.
455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 11, Minnesota Tile's president,
Alan Dale, its operations manager, Charles A.
Gladden, and DMCO employees Dan and Dave
Muller commenced installing corian bowls in bath-
rooms on the 13th floor of the Holiday Inn. As
Dale began to lift the first bowl into the vanity top,
Mike Stewart came into the room and identified
himself as Local 15's representative and shop ste-
ward. Stewart, an employee of Horowitz, Inc.,
stated that Dale "could not put that bowl in, that
that was Plumbers' work and that they would have
to be installed by Local 15 members."
Dale, Gladden, and the Mullers continued install-
ing corian bowls the following day. After the
group had taken a coffeebreak about 10:30 a.m.,
Dan Muller returned to the jobsite and reported
that Clyde Nordstrom, building inspector for the
city of Bloomington, had threatened to arrest the
DMCO employees for installing sinks without a li-
cense or permit to do so. That same morning, Phil-
lip Bailey, FDC's senior project superintendent,
held a meeting concerning these problems in his
construction trailer. During this meeting, Stewart
asked Dale whether the DMCO employees were
going back on the job. Dale replied that "they
were, that we [have] a contract and we [are] going
to perform that contract." Stewart then remarked,
"If Dave or Dan [Muller] go back onto that job
[we're] going to walk off the job and picket." Al-
though Reuben Porter, Local 15's business repre-
sentative, was present in the trailer during this con-
versation, he did not comment on Stewart's threat
to picket the project. Bailey ultimately suggested
that the work be reassigned to Horowitz employees
represented by Local 15. However, DMCO de-
clined to relinquish its contractural right to per-
form the job.
The Building and Environmental Inspection De-
partment of the city of Bloomington subsequently
informed Minnesota Tile, by letter, that DMCO's
unlicensed employees would be violating the
Bloomington building code if they continued to in-
stall sinks at the Holiday Inn. After both Minnesota
Tile and DMCO had failed to obtain a city permit
during the next week or 10 days, Bailey told repre-
sentatives of Horowitz to finish installing the
bowls. At this time, DMCO had installed only a
few of the approximately 300 units scheduled for
completion.
B. The Work in Dispute
The work in dispute, as described in the notice
of hearing, is the installation or mounting of corian
basins in the guestrooms and public restrooms at
the Holiday Inn construction site in Bloomington,
Minnesota.
C. Contentions of the Parties
Local 15 argues that there is no reasonable cause
to believe that it has violated Section 8(b)(4)(D) of
the Act and that therefore the dispute is not prop-
erly before the Board and that the notice of hear-
ing should be quashed. In this regard, Local 15
claims that Stewart is not its shop steward, but in-
stead holds the position of shop foreman for Horo-
witz, Inc. Thus, while it does not refute the evi-
dence that Stewart threatened to picket the Holi-
day Inn jobsite, Local 15 also notes that its business
representative, Porter, did not authorize or ratify
the conduct engaged in by Stewart. Finally, it as-
serts that the primary cause of the instant dispute
was the city of Bloomington's demand that Minne-
sota Tile and DMCO comply with its building
code. It does not argue, however, that the
Bloomington building code requires the assignment
of the disputed work to the licensed employees of
Horowitz represented by it.
Minnesota Tile argues in its brief that a jurisdic-
tional dispute exists in this case. It contends that
there is reasonable cause to believe that Section
8(b)(4)(D) of the Act has been violated since Local
15 threatened to picket the Holiday Inn project on
February 12, 1981, if Minnesota Tile continued to
assign the disputed work to DMCO's employees.
Additionally, Minnesota Tile urges that its assign-
ment of the disputed work to DMCO's employees
should be upheld on the basis of its present assign-
ment and preference, area practice, and efficiency
and economy of operations.
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: (1) there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated, and (2) there is no agreed-upon method
for the voluntary resolution of the dispute.
With respect to (1) above, we note that Local 15
does not contest the status of Minnesota Tile
Supply Company as the Employer herein for the
purpose of assigning the disputed work. In view of
the foregoing and based on the entire record
herein, we are satisfied that Minnesota Tile Supply
Company is the Employer responsible for assigning
the work. Additionally, the record discloses that on
February 11, 1981, Mike Stewart identified himself
as Local 15's shop steward and then claimed the
work of installing corian bowls on behalf of em-
ployees represented by the Union. Then, on the
following day, Stewart threatened to walk off the
job and picket the construction site if the Employ-
er continued to assign the disputed work to
456
PLUMBERS UNION LOCAL NO. 15
DMCO's employees. While conceding that he did
not know who was representing Local 15 as shop
steward on the project, FDC's project superintend-
ent, Bailey, claimed that Stewart was not serving
in this capacity, but instead held the position of
shop foreman for Horowitz, Inc., at the site. As-
suming the validity of Bailey's testimony, it is con-
ceivable, as Local 15 asserts, that Stewart was not
acting as the Union's agent when he threatened to
picket the jobsite.4 Nevertheless, it is well settled
that a conflict in testimony does not prevent the
Board from proceeding under Section 10(k) for, in
this proceeding, the Board is not charged with
finding that a violation did in fact occur, but only
that reasonable cause exists for finding such a vio-
lation. Accordingly, without ruling on the credibil-
ity of the testimony at issue,5 we find that there is
reasonable cause to believe that Section 8(b)(4)(D)
has been violated. In reaching this conclusion, we
note that there is no evidence that Porter, Local
15's business representative, who was present when
Stewart made the threat to picket, disclaimed or
disavowed the picket threats uttered by Stewart.
Moreover, we note that Local 15 did not call
Porter, who was present at the hearing, as a wit-
ness to corroborate Bailey's testimony that Stewart
was not serving as its shop steward.
With respect to (2) above, there is no evidence
that all parties have agreed to any method for the
voluntary resolution of the dispute. Accordingly,
we find that this dispute is properly before the
Board for determination.
E. 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 various relevant
factors. 6 As the Board has frequently stated, the
determination in a jurisdictional dispute case is an
act of judgment based on commonsense and experi-
ence in weighing these factors. The following fac-
tors are relevant in making a determination of the
dispute before us.
1. Board certification and relevant collective-
bargaining agreements
There is no evidence that Local 15 has been cer-
tified by the Board as the collective-bargaining rep-
resentative for a unit of employees of Minnesota
' See, e.g., Tower Hotel Company, d/b/a Holiday Inn Riverfront, 250
NLRB 99 (1980).
See, e.g., Local Union Vo. 334. Laborers International Union of .Vorth
America. AFL-CIO (C. H. Heist Corporation), 175 NLRB 608, 609(1969).
N.L.R.B. v. Radio and Television Broadcasting Engineers Union. Local
1212, International Brotherhood of Electrical Workers. AFL-CIO [Colum-
bia Broadcasting System], 364 U.S. 573 (1961); International Association of
Machinists, Lodge No. 1743. AFL-CIO (J A. Jones Construction Compa-
ny), 135 NLRB 1402 (1962).
Tile or DMCO. Furthermore, Minnesota Tile has
no collective-bargaining agreements with Local 15.
DMCO's employees, as noted, are not represented
by any labor organization.
Accordingly, we conclude that the factors of
Board certification and relevant collective-bargain-
ing agreements are inconclusive and do not favor
an award of the disputed work to employees repre-
sented by Local 15 or to DMCO's employees.
2. Employer assignment and preference
Minnesota Tile has assigned the work in dispute
to DMCO's employees, and has manifested a pref-
erence to continue that assignment. We therefore
find that this factor favors an award of the disput-
ed work to DMCO's employees.
3. Relative skills
It is clear from the record that employees repre-
sented by Local 15 and DMCO's employees are
equally capable of installing corian sink bowls at
the Holiday Inn construction site. Accordingly, we
find that this factor does not favor an award of the
disputed work to either group of employees.
4. Industry and area practice
Since the method of installing corian vanity
bowls is a new process, the record contains no evi-
dence regarding the industry and area practice for
the work in dispute. Accordingly, we conclude
that both industry and area practice are inconclu-
sive and do not favor an award of the disputed
work to either group of employees.
5. Economy and efficiency of operations
The record indicates that the installation of a
corian bowl is a simple operation requiring be-
tween 2 and 5 minutes for completion. DMCO's
employees were present on the jobsite to perform
this work. Since employees represented by Local
15 also are employed at the construction site for
the purpose of connecting the building's main
water pipes to the vanity faucet and drain, we find
that it would be equally as efficient for these em-
ployees to perform the disputed work. According-
ly, we find that the factors of economy and effi-
ciency of operations are inconclusive and do not
favor an award of the disputed work to either
group of employees.
Conclusion
Upon the record as a whole, and after full con-
sideration of all the relevant factors involved, we
conclude that the unrepresented employees of
DMCO are entitled to perform the work in dis-
457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pute. We reach this conclusion based on Minnesota
Tile's preference and present assignment of the dis-
puted work to these employees. Accordingly, we
shall determine the instant dispute by awarding the
disputed work to those employees currently em-
ployed by DMCO as vanity fabricators and install-
ers. Additionally, we find that Local 15 is not enti-
tled by means proscribed under Section 8(b)(4)(D)
of the Act to force or require Minnesota Tile to
assign the disputed work to employees represented
by it.
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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of DMCO, Inc., who are currently
unrepresented, are entitled to perform the work in-
volved in the installation or mounting of corian
basins in the guestrooms and public restrooms at
the Holiday Inn construction site in Bloomington,
Minnesota.
2. Plumbers Union Local No. 15, United Associ-
ation 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)(D) of the Act
to force or require Minnesota Tile Supply Compa-
ny to assign the disputed work to employees repre-
sented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Plumbers Union
Local No. 15, 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
18, in writing, whether or not it will refrain from
forcing or requiring Minnesota Tile Supply Com-
pany, by means proscribed by Section 8(b)(4)(D) of
the Act, to assign the disputed work to employees
represented by it rather than to the employees of
DMCO, Inc.
458