Southern California Pipe Trades Council No. 16

National Labor Relations Board - Board Decisions

Sep 8, 1972

198 N.L.R.B. 1240 (N.L.R.B. 1972)

1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern California Pipe Trades District Council No.
16; Plumbers & Steamfitters Local No. 582 and
Kimstock Division, Tridair Industries , Inc.' and
Orange County District Council of Carpenters'
Southern California Pipe Trades District Council No.
16; and Plumbers and Pipefitters Local No. 230
and Kimstock Division , Tridair Industries , Inc. and
Orange County District Council of Carpenters.
Cases 21-CD-305, 21-CD-305-2, 21-CD-305-3,
21-CD-305-4,21-CD-305-5, and 21-CD-306
September 8, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
These are consolidated proceedings under Section
10(k) of the National Labor Relations Act, as
amended, following charges filed by Kimstock
Division, Tridair Industries, Inc., herein called the
Employer or Kimstock. The charges allege that
Southern California Pipe Trades District Council
No. 16, Plumbers & Steamfitters Local No. 582, and
Plumbers and Pipefitters Local No. 230, herein
called, collectively, Respondents, and, respectively,
District Council No. 16, Plumbers Local 582, and
Plumbers Local 230, violated Section 8(b)(4)(D) of
the Act.
A hearing was held before Hearing Officer Ken-
neth B. Cooper on April 19, 1972, and May 10, 11,
15, 16, and 17, 1972. The Employer, the Respon-
dents, and OCDCC 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. Other organizations
having a general interest in the proceedings, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (herein "United Brotherhood"), San
Diego County District Council of Carpenters, and
Los Angeles County District Council of Carpenters,
appeared at the hearing and were permitted to
participate to whatever extent they desired to do so.2
No briefs were filed.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
I Orange County District Council of Carpenters, herein called OCDCC,
participated in the hearing on the basis of its representation of employees
who have been assigned the work in dispute The case caption has been
amended to reflect the status of the parties as such appeared from the
record
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. THE BUSINESS OF THE EMPLOYER
The parties stipulated that Kimstock, a wholly
owned subsidiary of Tridair Industries, Inc., with its
main office and place of business at Santa Ana,
California, is engaged in the manufacture and
installation of synthetic (fiberglass and plastic)
bathtubs and showers and other synthetic products.
Kimstock annually purchased goods and products
valued in excess of $50,000 directly from suppliers
located outside the State of California and sells
goods and products valued in excess of $50,000
directly to customers located outside the State of
California. The parties stipulated, and we find, that
Kimstock is an employer within the meaning of
Section 2(2) of the Act. We further find that
Kimstock 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 ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that District
Council No. 16, Plumbers Local 582, Plumbers Local
230, OCDCC, United Brotherhood, and San Diego
County District Counsel of Carpenters are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Since about 1962, Kimstock has been manufactur-
ing, selling, and installing fiberglass bathtubs and
showers in the southern California area. It installs
approximately 90 percent of the fixtures it sells, using
its own employees, carpenters and deliverymen
represented by OCDCC. Respondent District Coun-
cil No. 16 has territorial jurisdiction, within its parent
organization, the United Association, over the nine
southern-most counties of California.
In or about June 1971, on ajobsite in Los Angeles
County, within the jurisdiction of District Council
No. 16, an individual named Rudy, whose last name
is unknown, introduced himself to a Kimstock
installer and showed him a button which indicated
2 Also served with notice of the hearing, but not appearing, were
Plumbing-Heating and Piping Employers Council of Southern California,
Inc (herein "Employers Council"), and United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada (herein "United Association")
198 NLRB No. 182
SOUTHERN CALIFORNIA PIPE TRADES COUNCIL NO. 16 1241
that he was a steward for an unidentified plumbers'
union. He told the installer that the Kimstock
employees could not place the tub and shower units
in the bathrooms, that this would be done by
plumbers, and that the installation could be complet-
ed only with the help of the plumbers. The
Employer's witness testified that several individuals
accompanying the steward physically blocked or at
least gathered threateningly around the Kimstock
employees and prevented them from placing the
units in the bathrooms. These individuals started
placing the units themselves and the Kimstock
employees left.
In October 1971, at a jobsite in Orange County,
also within the jurisdiction of District Council No.
16, representatives of Kimstock, a local Carpenters
union affiliated with OCDCC, the general contrac-
tor, and the plumbing subcontractor met with a
plumbers' business agent who was once again
unidentified as to his representing a specific affiliate
of the United Association.3 The question of who
should perform the work of installing the bath and
shower units was discussed. The Plumbers business
agent said that it should be performed by composite
crews of plumbers and carpenters. Kimstock argued
for continuing its practice of installing with carpen-
ters and no plumbers. There was testimony that the
plumbers' business agent was asked what he would
do if Kimstock continued its practice at thisjob and
answered that he would probably stop supplying
plumbers to the plumbing subcontractor. According
to other testimony, the business agent told Kim-
stock's representatives, in the presence of the others,
that, if Kimstock continued to perform the entire
installation procedure, Kimstock might as well be
prepared to hook up the drains, overflows, and
faucets.
At another jobsite about 2 days later, George
Battany, the assistant to the business manager of
District Council No. 16, told representatives of
Kimstock, OCDCC, the general contractor, and the
plumbing subcontractor that Kimstock's method of
operation had set a precedent which had run its
course, and "we are going to put a stop to it as of
now."4 At a meeting of Kimstock, OCDCC, United
Brotherhood, and United Association representatives
in March 1972, the United Association's representa-
3 Testimony advertising to a contract between the business, agent's
organization and the plumbing subcontractor , Bolee Mechanical Contrac-
tors, which we have deduced is a member of Plumbing-Heating and Piping
Employers Council of Southern California, Inc, which in turn has a
collective-bargaining agreement with District Council No 16, leads us to
conclude that this business agent had at least some significant connection
with District Council No 16
4 Testimony that Battany does not represent District Council No 16
when serving in his capacity as member of a contractual Joint Arbitration
Board Subcommittee, which investigates and reports on alleged contract
violations , is not probative , since there is no evidence that a contract
tive told the others that if Kimstock did not adhere to
a joint agreement between the United Association
and the United Brotherhood calling for composite
crews Kimstock would have ten times as much
trouble as it had before. The United Association
representative also stated that he was not threatening
Kimstock.
B. The Work in Dispute
The work in dispute is the installation by the
Employer of synthetic bathtubs and showers at
construction jobsites in the southern California area,
including but not limited to the unloading, uncrating,
and handling of synthetic bathtubs and showers from
initial unloading to the point of installation, setting
the fixture to and over the plumbing rough-in, and
drilling necessary holes including the installation of
drain spuds in the shower stall units (which is
performed at the Employer's plant), but excluding
the hooking up of waste and water connections at the
jobsite.5
C. Contentions of the Parties
The Employer contends that a viable jurisdictional
dispute exists here, that there is no agreed-upon
method for its voluntary adjustment, and that
reasonable cause exists to believe that Respondents
have violated Section 8(b)(4)(D) of the Act. As to the
merits of the dispute, the Employer contends that its
uniform assignment of this work to employees
represented by OCDCC is supported by a Board
certification, a collective-bargaining agreement, area
practice, the superior skills of the carpenter employ-
ees, and economy and efficiency.
Respondents and United Brotherhood contend
that the work should be awarded to a composite crew
in accordance with an agreement between the United
Association and the United Brotherhood. Respon-
dents contend that industry practice supports the
claim of plumbers to the disputed work. Moreover,
Respondents contend that the National Joint Board6
provides a method for voluntary adjustment of the
dispute, that no reasonable cause exists to believe
that a violation of Section 8(b)(4)(D) has occurred,
violation had been alleged , and the witnesses to the conversation reported in
the text identified Battany as a representative of the District Council
5 The parties neither agreed on a description of the work in dispute nor
submitted their own descriptions The Board has therefore adopted those
portions of the description set forth in the Regional Director 's Notice of
Hearing which the parties have not objected to and modified the other
portions according to its review of the record The Employer 's contention
that the work in dispute includes products installed by other companies is
discussed below under the heading, "Scope of Award "
6 National Joint Board for Settlement of Jurisdictional Disputes,
Building and Construction Industry
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that such a negative finding made by the U. S.
District Court in the related injunction proceeding7
should be binding upon the National Labor Relat-
ions Board. Respondents further contend that in any
event they have not engaged in any violation of the
Act.
OCDCC and its two neighboring Carpenters'
District Councils from San Diego and Los Angeles
Counties took no position on the record as to any of
the issues of the case, and none of them presented
any evidence. Mistakenly assuming, however, that
the positions of the United Brotherhood, OCDCC,
and the Los Angeles County District Council were
identical, the San Diego County District Council also
stated that it was aligning itself with the position of
those three, a statement of position which we
perforce disregard.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of 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 there is no agreed-upon method for voluntary
adjustment of the dispute.
Preliminary , we find no merit in Respondents'
contention that this Board is bound by the finding of
the U.S. District Court that there is no reasonable
cause to believe that Respondents have engaged in
any unfair labor practices.8
There is evidence that on one occasion a steward of
an unidentified plumbers' union participated in
physically preventing Kimstock employees from
performing their assigned functions unless they
would share the work in accordance with Respon-
dents' position as to the assignment of this work. On
another occasion an unidentified plumbers ' business
agent asserted the position taken here by Respon-
dents and backed it up by threatening to stop
supplying plumbers to the plumbing subcontractor
on the job in question and that if Kimstock adhered
to its practices it should be prepared to do the
plumbing work. Both of these incidents took place
within District Council No. 16's territorial jurisdic-
tion. A responsible official of District Council No. 16
told representatives of all interested parties at
another jobsite that "we" were going to put a stop to
Kimstock 's practices immediately, and a representa-
r Johansen v Southern California Pipe Trades District Council No 16, et
al, C D Calif, April 24, 1972, Civil No. 72-660-HP
s See A cker Industries, Inc, 184 NLRB No 51, Essex County and Vicinity
District Council of Carpenters, etc (Associated Contractors of Essex County,
Inc), 141 NLRB 858, 861, reversed on other grounds 332 F 2d 636 (C A 3,
1964)
9 Neither this finding nor the evidentiary findings on which it is based
will be res judicata in any subsequent unfair labor practice proceeding
Local 157 United Association of Journeymen and Apprentices of the Plumbing
tive of the United Association told Kimstock that it
would have ten times as much trouble as before if it
did not comply with the request for composite crews.
In light of the actions taken by unidentified
plumbers ' agents which arguably cannot be attribut-
ed directly to any of the Respondents , the statements
made by the officials of District Council No. 16 and
the United Association can reasonably be interpreted
as threats to Kimstock and others to force a change
in the assignment of work . We thus find that the
threshhold standard of "reasonable cause to believe"
has been satisfied.9
There exists here unquestionably a real and abiding
dispute over the assignment of the work in question
between the employees represented by OCDCC, on
the one hand , and the Respondents , on the other.10
Respondents ' contention that the National Joint
Board is an available forum for the voluntary
adjustment of the dispute is without merit or legal
significance . It is not seriously claimed , nor could it
be, that the National Joint Board has been agreed
upon by the parties as a forum for voluntary
settlement . In fact , neither the Employer nor
OCDCC, the latter under instructions of its parent
United Brotherhood , is currently participating in
proceedings of the National Joint Board.
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 and balancing all
relevant factors. The following factors are relevant in
making the determination of the dispute before us:
1. Certification and collective-bargaining agree-
ments
OCDCC and Local Union 2665, Carpenters, were
certified in 1963 as the collective-bargaining repre-
sentatives of the employees of Kimstock, Inc., a
predecessor of the Employer, at its plant in Costa
Mesa, California, including its installation employ-
ees. The significance of this certification is attenuat-
ed by the absence of evidence that the work
performed at the Costa Mesa plant is or was the
same as the work here in dispute. But, in addition to
the certification there is a current collective-bargain-
ing agreement between the Employer and OCDCC,
dated September 11, 1970, covering the work in
and Pipefitting Industry of the United States and Canada, AFL-CIO
(Midwest Homes, Inc), 160 NLRB 261, 265.
is While no party has urged the absence of a viable dispute, it should be
noted that the agreement between Respondents ' parent organization, the
United Association , and the United Brotherhood , OCDCC's parent
organization, over the assignment of the work does not override the fact that
Respondents and the employees represented by OCDCC actively assert
competing claims to the work Cf Pipeliners Local No 798, Plumbers (Moon
Pipeline Contractors, Inc), 177 NLRB 872
SOUTHERN CALIFORNIA PIPE TRADES COUNCIL NO. 16
dispute and recognizing OCDCC as the exclusive
representative of the employees who perform it.
District Council No. 16 had at the time this dispute
arose, a collective-bargaining agreement with Em-
ployers Council, effective July 1, 1969, calling for
installation of synthetic bathtubs and showers by
composite crews, in accordance with an agreement
between the United Brotherhood and the United
Association, discussed infra. Kimstock is not a party
to that collective-bargaining agreement.
2. Company and area practice in the industry
In accordance with its collective-bargaining agree-
ment, Kimstock assigns the work in dispute exclu-
sively to employees represented by OCDCC. Those
assigned are carpenters who perform the actual
installation and truckdrivers and helpers who deliver
the units to or near the bathrooms of the individual
housing units in the building projects. Kimstock has
never used joint crews. About 10 percent of the
Kimstock bath and shower units supplied to south-
ern California building projects are not installed by
Kimstock at all, but are sold to other persons, such as
plumbing contractors, who do the installation with
their own employees.
Kimstock and four of its competitors control from
85 to 90 percent of the fiberglass tub and shower
industry in southern California. Evidence presented
by Kimstock indicates that the largest of its competi-
tors, which may account for somewhat more than 20
percent of the industry, has worked with plumbers on
occasion, but that the others followed Kimstock's
practice. Respondents presented no evidence as to
area practice."
3. The United Association-United
Brotherhood agreement
Apparently attempting to settle similar disputes
between themselves, the two national unions repre-
senting, respectively, plumbers and carpenters,
agreed in 1969 that the installation of the kinds of
bathroom units involved here, from the point of
initial unloading, should be done by a composite
crew, each craft performing specified parts of the job.
This agreement was, and in the eyes of the United
Association and the United Brotherhood still is,
applicable to the industry in southern California.
OCDCC, on the other hand, whose carpenter, driver,
and helper members do the delivery and installation
for Kimstock, is, in the phrase of its counsel, "in the
middle of a situation" where its parent organization,
the United Brotherhood, has agreed to another
method as set forth. While OCDCC diplomatically
took no official position on the record as to the
ii The collective-bargaining agreement between District Council No 16
and the Plumbing-Heating Employers Council was introduced into evidence
1243
agreement between the national unions, it is clear
that in practice it has not deemed itself bound by the
agreement any more than Kimstock has.
4. Relative skills, efficiency, and economy of
operations
The Employer's evidence indicates that the skills
and tools involved in the actual installation, as
opposed to the delivery, are those traditionally of
carpenters. The actual hookup of the plumbing
connections is done by plumbers who are not
employed by Kimstock, and there is no dispute over
that part of the work. Aside from the traditional
carpentry aspect of the work, according to the
Employer's evidence, the handling and installing of
these synthetic products is a specialized skill which is
most competently discharged by experienced work-
men such as those who have been engaging in it.
It appears that no more than one person can work
on one of these units at a time and that a composite
crew, or any method necessitating more than one
installer (excepting the plumber who under existing
practice does the hookups at a different time), would
involve inefficiencies caused by the members of a
crew waiting for each other to finish.
Respondent offered no evidence on these points.
Conclusions
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that employees of Kimstock who are
represented by OCDCC and its affiliated locals are
entitled to the work in question. The current
collective-bargaining agreement between Kimstock
and OCDCC, seemingly supported by the 1963
certification, Kimstock's assignment of the work, and
the factors of relative skills, economy, and efficiency
all support this conclusion on the instant record. The
factors of industry and area practice are not firmly
enough established on this record to support either
side in this dispute, and the various agreements to
which Kimstock is not a party do not sufficiently
offset those factors supporting our conclusion.
In making this determination, we are assigning the
disputed work to the employees of Kimstock who are
currently represented by OCDCC and its affiliated
locals, but not to those unions or their members.
Scope of Award
Kimstock is here requesting that the Board issue a
broad work award covering the installation work
done by it and by its competitors in the southern
by Kimstock
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
California area. We are not convinced that the
instant record shows a proclivity on the part of
Respondents to resort to unlawful conduct in
support of their claim to the work of Kimstock's
competitors. Moreover, the record does not ade-
quately show what employees should be awarded the
competitors' work assuming that an award be made.
Accordingly, we hold that the issuance of an award
broader than Kimstock's operation in southern
California is not appropriate in this case.
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 employed by Kimstock Division,
Tridair Industries, Inc., currently represented by
Orange County District.Council of Carpenters and
by an affiliated local are entitled to perform the work
of installing synthetic bathtubs and showers at
construction jobsites in the southern California area.
2. Southern California Pipe Trades District
Council No. 16, Plumbers & Steamfitters Locals No.
582, and Plumbers and Pipefitters Local No. 230 are
not, and have not been , entitled by means proscribed
by Section 8(b)(4)(D ) of the Act to force or require
the Employer to assign the above work to their
members or employees they represent.
3. Within 10 days from the date of this Decision
and Determination of Dispute , the labor organiza-
tions named in paragraph 2 above shall notify the
Regional Director for Region 21, in writing , whether
they will or will not refrain from forcing or requiring
the Employer , by means proscribed by Section
8(b)(4)(D), to assign the work in dispute to individu-
als represented by it rather than to employees
represented by OCDCC.