United Association of Journeymen

National Labor Relations Board - Board Decisions

Feb 14, 1969

174 N.L.R.B. 547 (N.L.R.B. 1969)

UNITED ASSOCIATION OF JOURNEYMEN
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada , Plumbers Local No.
219, AFL-CIO and Local 894, Laborers'
International Union of North America , AFL-CIO
and Price Brothers Company. Case 8-CD-129
February 14, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended,
following a charge filed by Local 894, Laborers'
International Union of North America, AFL-CIO
(hereinafter called the Laborers ), alleging that the
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada , Plumbers Local No.
219, AFL-CIO (hereinafter called the Plumbers),
violated Section 8(b)(4)(D ) of the Act. Pursuant to
notice, a hearing was held before Hearing Officer
Myron Hill, on August 5, 6, and 21, 1968. All
parties appearing were afforded full opportunity to
be heard, to examine and cross-examine witnesses,
and to adduce evidence bearing on the issues.
Thereafter , briefs were filed by the Charging Party,
the Respondent , and the Employer involved.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing , and finds that they
are free from prejudicial error. They are hereby
affirmed . The Board has considered the briefs of the
parties and the entire record in this case, and hereby
makes the following findings:
1. THE BUSINESS OF THE COMPANY
Price Brothers Company, a manufacturer of pipe,
of Florindex systems, and of other products is an
Ohio corporation with its main office in Dayton,
Ohio. During the past 12 months Price Brothers has
purchased materials and supplies valued in excess of
$50,000 directly from sources outside of Ohio, and
has sold products valued in excess of $50,000
directly to out-of-State customers. Accordingly, we
find that the Employer is engaged in commerce
within the meaning of the Act and that it will
effectuate the purposes of the Act to assert
jurisdiction herein.
It. THE LABOR ORGANIZATIONS INVOLVED
547
The parties stipulated , and we find , that the
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada, Plumbers Local No.
219, AFL-CIO, and Local 894, Laborers'
International Union of North America , AFL-CIO,
are labor organizations within the meaning of the
Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The dispute centers on the work assignment of
drilling holes in flexicore slabs of precast concrete
which Price Brothers manufactures and markets
under the trade name of Florindex. The dispute
arose at the jobsite known as College Towers, in
Kent, Ohio. The charge filed by the Laborers on
June 19, 1968, and amended July 19, 1968, alleges
in substance that on or about May 28, 1968, and
thereafter, Plumbers' Local 219 unlawfully
encouraged individuals employed by Tower
Plumbing and Heating, Inc., a plumbing
subcontractor, to refuse to work or to perform any
services with an object of forcing Price Brothers to
assign the hole drilling to employees who were
represented by the Plumbers, rather than to
employees who were members of the Laborers.
The record reveals that Ivory Land Corporation
No. 2 is a general contractor engaged in the
construction of two buildings known as College
Towers in Kent, Ohio. On February 21, 1968, Ivory
Land Corporation entered into a contract with Price
Brothers under the terms of which the latter was to
deliver and install some 268,278 square feet of
flexicore slabs for use in the construction of the
buildings. Item 2 of the contract requires, in
pertinent part, that the sum to be paid to Price
Brothers under the contract is to include Price's
cutting on the job of openings in the slabs for water
closets and bathtub drains. The contract project
required about 1,000 openings of this type.
Flexicore slabs are approximately 8 inches in
depth and 24 inches in width. Their length depends
on the size of the room. Erection crews (herein
called field crews) employed by Price Brothers and
long represented by the Laborers customarily install
these slabs. Each field crew lays the slabs and
attaches them. The general contractor lays out the
locations for the openings which are to be made on
the job, and the openings then are cut by a single
member of the field crew by use of a vertical electric
drill. Until the present case, the Price Brothers
employee doing the work has always been one
represented by the Laborers.
On May 28, 1968, Price Brothers brought the
equipment necessary for the hole drilling to the
jobsite and assigned one of its employees to do the
174 NLRB No. 93
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. About 3 hours after this employee began the
work, Bernard Rach, a member of the Plumbers
employed as foreman of the plumbing work
subcontracted to Tower Plumbing and Heating Inc.
(herein called Tower), told Sidney Salit, the
principal officer of Tower, that the plumbers were
going to have a "safety" meeting "because the
flexicore people were drilling holes for the plumbing
lines to go through." Thereupon, all the plumbers
ceased working and went to their trailer. Soon
thereafter, the representative of the general
contractor (Ivory) told Robert L. Haubiel, the field
superintendent for Price Brothers, that the plumbers
were holding a "safety" meeting and that it would
last as long as the Laborers were cutting holes.
Haubeil then instructed his men to cease doing the
hole-cutting work and to do work on the erection
crew instead. When the laborers did cease the hole
cutting, the plumbers ended their "safety" meeting
and resumed their work.
The record further reveals that on a date
described only as being "at the end of May," Harry
J. Morris, the business manager of Plumbers Local
219, told Carl Milstein, the general contractor's
representative, that the cutting of holes for plumbing
and pipe fitting was the plumbers' work. Morris also
made the same statement to Edward Shanholtz, the
Plumber's job steward, after the latter reported to
the Plumbers' business office that the Laborers were
cutting the holes for the pipes.
On June 6, Price resumed the hole cutting and
again assigned one of his laborers to do the work.
The plumbers again walked off the job and held
another "safety" meeting. Haubiel arrived at the
jobsite a little later, and Salit then informed him
that the plumbers were having another "safety"
meeting. Salit asked Haubiel to take his men off the
hole cutting. Haubiel refused for the stated reason
that it was too expensive for him to bring his
equipment out to the jobsite, set it up, and then only
operate it for an hour or two. The laborers
continued to drill all day, whereas, the plumbers
remained at the "safety" meeting and performed no
work for the balance of the day.
Price Brothers did not assign any hole cutting on
the project to any member of its field crews on June
7, and has not done so since that date. The
plumbers resumed working on June 7, and have
engaged in no work stoppages since that date.
At some date between June 7 and July 9, the
Plumbers' business agent, Harry J. Morris, referred
this dispute to the National Joint Board for
Settlement of Jurisdictional Disputes. Both the
Laborers and the Plumbers are affiliated with
International Unions which are members of the
Building and Construction Trades Department of
the AFL-CIO, and as such are bound by the
settlement procedures of the Joint Board. However,
Price Brothers has not been stipulated to the Joint
Board since 1964. On July 9, 1968, the Joint Board
issued a one page directive awarding the work in
dispute to the plumbers. On July 10, Price Brothers
notified the Joint Board that it declined to put the
directive into effect.
On July 29, Price Brothers hired a member of the
Plumbers to do the hole cutting. This man was
engaged in hole cutting at the time of the hearing.
B. The Contentions of the Parties
Price Brothers and the Laborers contend that:
The Plumbers violated Section 8(b)(4)(D) by
exerting coercive pressures directly and indirectly
upon Price to compel Price ' s assignment to the
Plumbers of the hole-cutting work previously
assigned to Laborers ; and that the work should
properly be awarded to the Laborers in view of (a)
the latter ' s certification by the National Labor
Relations Board as the bargaining representative of
a unit of the employees of Price which included
employees regularly performing that work , (b) the
circumstances existing when Price contracted to
perform the contract work for the general
contractor , and (c ) considerations of economy and
efficiency . Price Brothers also contends that no
weight should be given to the award of the Joint
Board in view of the fact that Price is not stipulated
to the Joint Board.
The Plumbers requests that the charge be
dismissed on either of two alternate grounds. It
claims first that no prima facie case of the alleged
violation of Section 8(b)(4)(D ) has been made out
because, so it asserts , there is no evidence that it
made a formal demand for the work in dispute and,
besides, its calling of the "safety" meetings had
legitimate safety objectives . Next, it urges the Board
to give effect to the ruling of the Joint ,Board and to
reverse the Board ' s long established rule that the
employer is a necessary party to the voluntary
proceedings for settling jurisdictional disputes
referred to in Section 10 (k) of the National Labor
Relations Act.
C. Applicability of the Statute
Before the Board may proceed with the
determination 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.
Contrary to the contentions of the Plumbers, we
find that the circumstances under which all
employees of Tower who were members of the
Plumbers concertedly ceased performing their
assigned work on the project on May 28, and June
6, 1968, clearly establish a prima facie case
supporting the alleged violation of Section
8(b)(4)(D). On each of these two separate dates
Plumbers held a "safety" meeting shortly after the
Laborers, to whom Price Brothers had assigned the
disputed hole-drilling work, began performing this
assignment, and on each occasion the "safety
UNITED ASSOCIATION OF JOURNEYMEN 549
meeting" was adjourned and the Plumbers resumed
working only when the Laborers stopped performing
the hole-drilling work. In denying that its conduct of
these meetings violated Section 8(b)(4)(D) the
Plumbers points out, inter alia, that neither of these
meetings was preceded by any formal demand that
Price Brothers assign the hole-drilling work to
plumbers, and that, sometime after these meetings,
the Plumbers filed with the State agency certain
complaints about safety conditions on the job.
However, even assuming that the facts on which the
Plumbers rely might warrant a conclusion that "an"
object of the "safety meetings" was the correction
of allegedly unsafe working conditions, these facts
do not necessarily preclude a finding that "an"
additional object of the "safety meetings" (if not the
sole object) was to obtain for plumbers the
hole-drilling work which Price Brothers had
previously assigned to laborers. This view of the
Plumbers' objective is supported not only by the
timing of the meetings, but also by the facts that at
times closely related to the holding of the meetings,
Morris, the Plumbers' business manager and
Shanholtz, the Plumbers' job steward, claimed that
the hole-drilling work belonged to the Plumbers;
that Morris himself so advised a representative of
the general contractor; and that Rach, the
Plumbers' job foreman, expressly advised another
representative of the general contractor that the
Plumbers were going to hold a "safety" meeting
"because the flexicore people [viz the employees of
Price Brothers] were drilling the holes for the
plumbing lines to go through."
Plumbers also contend that the Board is precluded
from making a determination of the dispute because
the Joint Board awarded the disputed work to
Plumbers pursuant to a method of adjustment
agreed upon by Plumbers and the Laborers.
However, as Price Brothers, a necessary party to the
adjustment of the dispute, neither agreed to Joint
Board submission nor participated in the Joint
Board proceeding, we conclude there was no
voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act.'
On the basis of the entire record, we find that
there is reasonable cause to believe that a violation
of Section 8(b)(4)(D) of the Act has occurred and
that the dispute is properly before the Board for
determination. 2
D. 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 all relative factors.
In International Association of Machinists, Lodge
No. 1743 (J. A. Jones Construction Co. ), 3 the Board
'See International Union of Operating Engineers, Local Union No 158,
AFL-CIO (E. C. Ernst, Inc ), 172 NLRB No. 192.
'Cement Masons Local Union No 524 ( Tobasco Prestressed Concrete
Co.), 163 NLRB No. 75.
set forth the following criteria to be considered in
the making of an affirmative award in a Section
10(k) proceeding:
The Board will consider all relevant factors in
determining who is entitled to the work in dispute,
e.g., the skills and work involved , certifications by
the Board , company and industry practice,
agreements between unions and between
employers and unions , awards of arbitrators, joint
boards, and the AFL-CIO in the same or related
cases, the assignment made by the employer, and
the efficient operation of the employer ' s business.4
1. Company and area practice
The record reveals that in approximately 20
percent of the contracts for erecting flexicore slabs
Price Brothers is required to do cutting in the field
for holes and chases for pipes. Until the events
above described occurred, the Employer invariably
assigned this work to one of its employees
represented by the Laborers. The present assignment
to a plumber represents the sole exception to that
practice and, as we have found, that assignment was
made under coercion. In the other 80 percent of the
cases, the cutting of these holes is done either at the
factory by Price Brothers or else in the field by the
purchaser. The record is devoid of any evidence
showing what union, if any, represents the
employees of the purchasers who do their own field
cutting. Thus, the only record evidence relating to
employer or area practice supports an award to the
laborers.
2. Employer's preference
The fact that Price Brothers strongly favors an
award to the laborers is a factor which supports the
assignment to the laborers.
3. Efficiency and economy of operation
The record reveals that in the two buildings
involved here about 1,000 holes are to be drilled.
Price Brothers introduced evidence, which was not
disputed, that one laborer can drill some 20 holes a
day; that the plumber assigned to this work was
drilling only about 15 holes a day; and that the
difference in cost to Price Brothers was about $1 per
hole, or a total of $1,000 for the complete job. This
is another factor supporting assignment of the
disputed work to the laborers.
4. Certification by the Board
The Laborers was certified in 1959 by the
National Labor Relations Board as the
collective-bargaining representative of all employees
'135 NLRB 1402
'Id at 141041.i
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Price Brothers at its Kent, Ohio, plant, excluding
certain categories not relevant here. Employees
performing disputed hole-cutting work are clearly
within the unit covered by this certification. This is
another factor favoring an award to the laborers.
5. Agreement between the Unions and the
award of the Joint Board
The National Joint Board award of the work in
dispute to the plumbers is the one factor supporting
the Plumbers' claim to the work. In pertinent part
that award reads:
It has been agreed between the Unions involved
that the work in dispute shall be assigned to
plumbers and steamfitters.
Contractor is directed to proceed with work on
this basis.
The "agreement" referred to in this letter was not
put into evidence, and we are thus left without
means to determine its precise character or to
evaluate its significance. It is, however undisputed
that Price Brothers was not a party to this
agreement, and is not stipulated to the Joint Board.
Therefore, the Joint Board award cannot be
regarded as determinative of this dispute.' However,
the Plumbers contends that we should accord
"significant weight" to the Joint Board award in
spite of the fact that the Employer is not stipulated
to the Board and did not participate in the
proceeding.
In the recently decided Don Cartage case,6 the
Board has indicated that, in evaluating the relative
merits of competing union claims to disputed work,
an award by the Joint Board or by other impartial
arbitrators should not be ignored simply because the
Employer did not participate in the proceeding
which resulted in the award. And, indeed, in that
case, we accorded the award there before us
significant weight. But here, unlike the situation in
Don Cartage, the award consisted simply of a letter
setting forth its ultimate terms, neither explicating
the factors relied upon nor providing any other
supporting data in a manner that might enable us to
determine the degree of deference that should be
accorded it. We do not therefore assign to this
award the same significant weight as was assigned
to the award in the Don Cartage case, supra.'
'International Union of Operating Engineers , Local Union No 158,
AFL-CIO, (E.C. Ernst, Inc.), 172 NLRB No 192.
'Millwrights Local Union No 1102 (Don Cartage Company), 160
NLRB 1061.
'E. C Ernst , Inc., supra, fn. 5. Member Jenkins agrees that the Joint
Board award in this case is not sufficient to outweigh the considerations
which favor an award to the laborers . Having reached a similar view in his
dissent in Don Cartage, he now finds it unnecessary to distinguish carefully
the Joint Board award in this case from the award in the Don Cartage case
- although he recognizes that some differences may exist
CONCLUSIONS
On all the evidence, we determine the instant
jurisdictional dispute in favor of the laborers, and
find the employees of Price Brothers represented by
the Laborers, rather than plumbers and pipefitters
represented by the Plumbers, are entitled to perform
the work of field cutting of holes at the College
Towers construction site. Company practice,
Employer preference, certification by the Board,
efficiency and economy of operation favor this
result.
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
case, the National Labor Relations Board hereby
makes the following determination of dispute.
1. Employees who are employed by Price Brothers
Company, Flexicore Division, as laborers for the
erection of precast concrete products and who are
currently represented by Local 894, Laborers'
International Union of North America, AFL-CIO,
are entitled to perform the work of cutting holes on
the job at the College Towers construction site in
Kent, Ohio.
2. Plumbers Local No. 219, United Association 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 the Employer to assign the above work to
plumbers and pipefitters who are represented by that
labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Plumbers Local No.
219, 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 8, in writing, whether it will refrain from
forcing or requiring the Employer, by means
proscribed in Section 8(b)(4)(D), to assign the work
in dispute to employees represented by Plumbers
and Pipefitters Local No. 219, rather than to
employees represented by Local 894, Laborers'
International Union.