NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
United Association, Local 447, AFL–CIO and Rudolph & Sletten, Inc. Carpenters
July 23, 2007
DECISION AND DETERMINATION OF DISPUTE
By Chairman Battista and Members Liebman and Walsh
The charge in this Section 10(k) proceeding was filed on January 12, 2007, by Rudolph & Sletten, Inc. (the Employer). It alleges that the Respondent, United Association, Local 447, AFL–CIO (the Plumbers) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees represented by the Plumbers rather than to employees represented by Carpenters Union, Local No. 46 (the Carpenters).[1] A hearing was held on February 13 and 14, 2007, before Hearing Officer Daniel J. Owens. Thereafter, the Employer, the Carpenters, the Plumbers, and the Electricians filed briefs in support of their positions.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, finding them free from prejudicial error.[2] On the entire record, the Board makes the following findings.
i.
jurisdiction
The parties stipulated that the Employer, a
ii. the dispute
A. Background and Facts of the Dispute
This dispute involves the receiving, inventory, distribution,
layout, and installation of headwall/headboard units in patient rooms at the
Kaiser Women’s and Children’s Center in
The Employer
employs carpenters represented by the Carpenters. The Employer is signatory to the 2003–2008 multiemployer
collective-bargaining agreement with the Carpenters through the Construction
Employers Association. Airco Mechanical,
Inc. is a subcontractor to the Employer on the project. Airco is responsible for connecting the
building’s piping that carries medical gas to the headwall units and for
certifying the medical gas system. Airco
has a collective-bargaining agreement with the Plumbers. Collins Electric is also a subcontractor to
the Employer on the project. It is
responsible for connecting the headwall units to the building’s electrical
system, and for certifying the function of the electrical system within the
headwall units. Collins has a collective-bargaining
relationship with the Electricians. The
Employer does not have a collective-bargaining relationship with either the
Electricians or the Plumbers. The
Employer assigned the disputed work, described below, to its own employees
represented by the Carpenters.
The typical
wall-mounted headwall unit is received from the supplier’s truck by the
Employer’s Carpenters-represented employees.
Those employees inventory the units, check them for damage, and then
distribute them to the patient rooms.
The Carpenters-represented employees provide layout for the backing
plate, and after the walls have been framed, those employees attach the backing
plate to the wall. Electricians-represented
employees employed by Collins and Plumbers-represented employees employed by
Airco then rough in the electrical and piping components to the backing
plate. Then “everyone will go away” and
drywall is hung on the walls.
Carpenters-represented employees are the first to return and mount the
headwall case onto the backing plate.
Plumbers-represented employees and Electricians-represented employees
return next and make their connections to the headwall unit. Carpenters-represented employees then install
various pieces of owner-furnished equipment onto the headwall rails. The procedure varies slightly for the
different types of units installed on the project. The work in dispute does not include the roughing
in of the electrical and piping components or the final connection of the headwall
units to the electrical and medical gas systems of the hospital. That work is performed by employees represented
by the Electricians and the Plumbers.
Once Electricians-represented employees hook up the headwall unit to the
interior electrical system, they are responsible for testing the system and
certifying that the electrical systems are functioning properly. Plumbers-represented employees are
responsible for certifying the gas system once the headwall units are attached.
The Employer
assigned the disputed work, consisting of the handling of the headwall units
and the mounting of them onto the wall prior to the final step of connecting
the units to the electrical and gas systems, to its employees represented by
the Carpenters. On December 21, 2006,
two business representatives from the Plumbers and the Electricians visited the
Employer’s job trailer. They claimed
that a composite crew consisting of employees represented by the Plumbers and
the Electricians should be performing the headwall unit work assigned to
employees represented by the Carpenters.
The Employer’s senior project manager, Craig Jamison, explained that the
Carpenters claimed the work, that the Employer was obligated under its
collective-bargaining agreement to assign the work to Carpenters-represented
employees, and that the Employer was not authorized to reassign the work to
other crafts.
The next day, Jamison
met with Carpenters local union representative Michael Leung, who affirmed that
the headwall unit work was covered under the Carpenters’ collective-bargaining
agreement. Jamison asked Leung to
contact the Plumbers and the Electricians to resolve the dispute. On January 3, 2007, Larry Cook, Airco’s vice-president
of construction, was contacted by Plumbers business manager Harry Rotz. Rotz said that because he had not been able
to resolve the headwall unit work issue, he was going to remove Airco’s plumbers
from the project. Airco’s plumbers were
removed from the project that afternoon and they did not return to the project
until January 22, 2007. As a result of
the work stoppage, the Employer filed the unfair labor practice charge against
the Plumbers on January 12, 2007.
B. Work in Dispute
The notice of hearing describes the work in dispute as follows:
All work involved in receiving, inventory, distribution,
layout and installation of H-3, H-5, H-7, H-10, and H-11 headwall/headboard
units in patient rooms at the Kaiser Women’s and Children’s Center, including installation
of all components, backing plates, templates, covers and equipment such as
shelves, medical equipment brackets, etc.
C. Contentions of the Parties
The Employer
argues that there are competing claims to the work, and that there is
reasonable cause to believe that the Plumbers has violated Section 8(b)(4)(D)
of the Act. It further argues that the
disputed work should be awarded to employees represented by the Carpenters
based on collective-bargaining agreements, the Employer’s current assignment of
the work, preference, and past practice, industry and area practice, and economy
and efficiency of operations. The
Employer also contends that the employees represented by the Carpenters have
the relevant skill and ability to perform the disputed work.
The Carpenters
contends that the work was properly and appropriately assigned by the Employer
to its employees represented by the Carpenters.
The Carpenters urges the Board to uphold the assignment based on the
Employer’s preference, past practice, and current assignment, economy and
efficiency of operations, area practice, relative skills and training, and 9(a)
recognition.
The Electricians
contends that the majority of factors weigh in favor of assigning a composite
crew of employees represented by the Electricians and the Plumbers to perform
the disputed work on headwall units that contain outlets for the hospital’s
electrical and gas systems. The
Electricians relies on training, skills, work involved, efficiency of
operations, and area practice. It
further argues that installation of the units by untrained individuals would
increase safety risks. The Electricians
also maintains that the Employer has used a composite crew in the past and that
no agreement between the Employer and the Carpenters covers this work.
The Plumbers
maintains that the work in dispute should be performed by a “competent crew of
plumbers and electricians” because qualified individuals are required to
install medical gas and electrical systems.
The Plumbers argues that state law requires the assignment of the work
to certified installers and that only employees represented by the Plumbers and
the Electricians have the necessary training and certifications. The Plumbers suggests that the Employer is
exposing itself to breach of contract claims from Kaiser and personal injury
claims from patients if a patient is injured by contaminated piping systems,
escaped gases, and/or electrocution, and that reassignment of the work would be
to the Employer’s benefit. The Plumbers
also contends that the work in dispute is not covered by the Employer’s
collective-bargaining agreement with the Carpenters, and that efficiency and
public safety outweigh the Employer’s preference. It argues that the Employer’s preference in
the work assignment was “slight” and “subject to change” in light of the
Employer’s willingness to let the three unions resolve the work assignment
issue.
D. Applicability of the Statute
Before
the Board may proceed with a determination of a dispute pursuant to Section
10(k) of the Act, it must be established that reasonable cause exists to
believe that Section 8(b)(4)(D) has been violated. This requires a finding that there is reasonable
cause to believe that there are competing claims to disputed work between rival
groups of employees and that a party has used proscribed means to enforce its
claim. In addition, the Board must find that no
method for voluntary adjustment of the dispute has been agreed upon. Bricklayers
(Cretex Construction Services), 343 NLRB 1030 (2004).
1. Competing claims for the work
The parties do not dispute that there are competing claims for the work. Two business representatives of the Plumbers and the Electricians claimed the work for a composite crew of employees represented by those Unions, and Carpenters representative Leung claimed the work for employees represented by the Carpenters. Moreover, the assignment of the work to employees represented by the Carpenters establishes their claim to the work. Laborers Local 662 (McCarthy Brothers), 268 NLRB 926, 927 (1984). We find that there is reasonable cause to believe that there are competing claims to the disputed work between rival groups of employees.
2. Use of proscribed means
The parties do not dispute that there is reasonable cause to believe that a party used proscribed means to enforce its claim to the work. The Plumbers engaged in a work stoppage from January 3 through 22, 2007, because the Employer refused to reassign the work from Carpenters-represented employees to a composite crew of employees represented by the Plumbers and the Electricians. This establishes reasonable cause to believe that the Plumbers has used proscribed means to enforce its claim to the work in violation of Section 8(b)(4)(D).
3. No agreed-upon method for voluntary resolution of dispute
The parties stipulated that there was no agreed-upon method for the voluntary resolution of this dispute that would bind all the parties. In light of the stipulation, we find that there is no agreed-upon method for the voluntary resolution of this dispute.
For these reasons, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred, and that the dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirmative
award of disputed work after considering various factors. NLRB v. Electrical Workers Local 1212 (
The following factors are relevant in making the determination of this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence that any union has been certified to represent employees who are performing the disputed work.[3]
The Employer does not have a collective-bargaining
relationship with either the Plumbers or the Electricians. However, the Employer is signatory to a
collective-bargaining agreement with the Carpenters that the Employer contends
mandates awarding the disputed work to its Carpenters-represented
employees. The Employer argues that the
disputed work is covered work under Section 4 of the 2003–2008 46 Northern
California Counties Carpenters Master Agreement for
[1] All carpentry work on all construction, including, but not limited to, construction, erection, alteration, repair, modification, demolition, addition or improvement of or to a building or any other structure or construction.
. . . .
[3] Work in connection with new methods of construction or use of materials established or developed during the term of this Agreement, and the use and application of tools, devices, metal or plastic studs or any substitute thereof, metal or plastic forms or slip form procedures, mechanical power driven or otherwise, customarily and regularly used by carpenters, any mechanical or technological substitutes thereof, whether continuously or intermittently and which are regarded tools of the carpentry trade. This shall include though not be limited to the use and operation of forklifts, platform lifts and operation of concrete chutes.
While the Carpenters’ brief does not discuss the collective-bargaining agreement, Carpenters Business Agent Corey Streck testified that the disputed work is covered by Section 4, paragraph 3 set forth above.
The Plumbers and the Electricians contend that the work in dispute is not covered by section 4, paragraph 3. That paragraph does not mention headwall units or any other hospital equipment, and was designed to encompass technological or material changes. The installation of a headwall unit is not a new method of construction or the use of materials developed during the term of the agreement. The Electricians further argues that the handling and installation of a headwall unit is not a “use and application of tools [etc.].” The Plumbers argues that nothing in that paragraph pertains to the installation of medical gas systems, and that medical gas systems are not a new method or material.
The Carpenters’ collective-bargaining agreement does not specifically or expressly cover the work in dispute. The agreement, however, arguably covers the work. Paragraph 1 broadly covers all construction and modification of or additions to a building. Paragraph 3 broadly covers the use and application of tools customarily and regularly used by carpenters. Streck testified that the use of a “plumbing level, screw to the wall” would be encompassed by the language covering “use and application of tools . . . customarily and regularly used by carpenters, . . . whether continuously or intermittently and which are regarded tools of the carpentry trade.” He further testified that the tools used by Carpenters-represented employees in performing the disputed work, i.e., “levels, drills, possibly lasers, hammers, punches,” are common tools of the carpenter trade. Further, both the Employer and the Carpenters are of the view that the work in dispute is covered by the Carpenters’ contract, the Employer’s employees covered by that contract are performing the disputed work, and the Employer has no collective-bargaining agreement with either the Plumbers or the Electricians.
In Iron Workers
Local 1 (Goebel Forming, Inc.), 340 NLRB 1158, 1161 (2003), a panel
majority found that the collective-bargaining agreement factor favored awarding
the work to Carpenters-represented employees where the employer’s contract with
the Carpenters did not expressly refer to the work in dispute, but the parties
to the contract, by their conduct, had shown their mutual intention to apply
the contract to the work, and where the employer had no contract at all with
the Iron Workers. The majority in Goebel stated that “[i]f one union has a
contract which arguably supports that union’s claim, and the other union has no
contract at all with the assigning employer, the Board will consider those
facts in its decision.”
Similarly here, the Employer’s collective-bargaining agreement with the Carpenters contains general language arguably covering the work in dispute, employees employed under that agreement have been performing similar work, the parties to the agreement consider the work in dispute to be covered by the agreement, and the Employer has no collective-bargaining agreement with either the Plumbers or the Electricians. Under these circumstances, as in Goebel and Pepper, we find that this factor favors awarding the disputed work to employees represented by the Carpenters.[4]
2. Employer Preference and Assignment
The Employer prefers to assign the disputed work to Carpenters-represented employees and has assigned the work to its own employees represented by the Carpenters.[5] We find that this factor favors an award of the disputed work to Carpenters-represented employees.
3. Employer past practice
The Employer’s Senior Project Manager Craig Jamison
testified that for at least 14 years, the Employer has assigned hospital headwall
unit installation work to Carpenters-represented employees. The Employer is using Carpenters-represented
employees to install headwall units on several other projects, including Kaiser
Santa Clara, Sutter Auburn Faith, and
4. Area practice[7]
The Employer and the Carpenters submitted testimony and
assignment letters showing that in the
5. Relative skills and training
Jamison testified that employees represented by the Carpenters “are trained for the proper layout and installation of predominantly case work type units.” Streck testified that Carpenters-represented employees are trained in cabinet installation in general, although they are not trained specifically in the installation of headwall units. They are trained to construct the metal stud framing and backing plates and have the skills to install the headwall unit itself. According to Streck, installing the headwall unit is similar to installing cabinetry and the skills involved are the same. The tools used in performing the work, such as levels, drills, lasers, hammers, and punches, are tools commonly used by carpenters, and Carpenters-represented employees are trained in the use of these tools in their apprenticeship program. There was no evidence of any problems caused by employees represented by the Carpenters, and Jamison testified that the Carpenters had not made any mistakes installing the headwall units and that no safety issues have arisen as a result of the carpenters’ involvement in the installation of the headwall units.
The Electricians and the Plumbers argue that Carpenters-represented employees are not qualified to perform the work. They maintain that the knowledge, experience, and skills of certified electricians and plumbers allow those employees to identify and prevent damage to the electrical and plumbing components, and that the handling and installation of the headwall units by untrained workers creates unnecessary safety risks.
The Electricians receive training in the handling and installation of electrical equipment, including the type of electrical outlets in the headwall units. Courses in the electrician training program teach electricians to identify damage to electrical equipment. Such training enables electricians to assess whether the headwall units may have been damaged in transit or handling, and whether the level of damage is acceptable. Electrician Gene Nixon testified that if wire is not handled properly it can leave a raw edge that can abrade the insulation on the wire. The Electricians are trained to look at the units as they come from the manufacturer and assess whether there are risks in the way the conduit is cut. Nixon testified that after the unit has been installed on the wall it is difficult to assess whether any wires inside the unit have been damaged, or whether there is loose conduit that could cause problems after installation. Electrician Wayne Frank testified: “If you have loose conduits in here, you have a bad current path for f[u]ll current and you may never trip a breaker but yet you could kill somebody very easily.” Frank testified that electricians are trained to understand the importance of problems “electrically down the road.” The Electricians presented testimony that the premanufactured unit should be inspected by an individual trained to identify potential miswiring prior to the installation. Frank testified that “unless you have some ability to observe this assembly, you’d be taking a huge risk taking it out and putting it on the wall.” Nixon testified that although tests are run on the electrical system after the unit is installed, the tests do not always catch damage to the wires or other problems.
In 2002, the Employer was a general contractor on a project at the Kaiser Roseville hospital during which headwall units were installed. Nixon testified that there was a high rate of problems with the headwall units, and the problems were discovered only after the units were installed. The Electricians were required to spend considerable time troubleshooting and fixing the equipment. The headwall units on that project were installed by Carpenters-represented employees, but Nixon testified that he had no evidence that Carpenters-represented employees caused the problems.
The Plumbers argue that
The Plumbers are trained to recognize and prevent potential hazards. Plumbers Business Manager Harry Rotz testified that it is important for a certified plumber to be involved in the decision about where the unit is to be mounted in order to limit the number of joints and prevent contamination, and ensure that there is adequate clearance for the pipes to be soldered. Problems in the location of the template would not be noticed because the template would be covered by sheetrock and would not be visible. Plumber Gary Peck testified that problems can arise during installation when the headwall unit is placed over the stubs of pipes previously installed by plumbers. Sometimes the pipe stubs are too long and must be trimmed. Moving the pipes must be done carefully in order to avoid kinks. The pipes may be bent during mounting by untrained workers. Factory installed caps on pipes are sometimes dislodged and this can cause contamination in the system. Workers must be trained in what to do when the caps are dislodged or missing.[9] Because the Plumbers are required to certify the system as a whole, they want to have control over the unit and maintain a chain of custody.
The Plumbers contends that there are critical assessments that must be made when the headwall unit is removed from the box. The units require special handling and plumbers should inspect the units to determine whether the seals are missing or if one of the station outlets has been smashed. The units must be inspected, inventoried, and distributed by, or under the supervision of, competent and qualified installers. Defects may not be discovered if an untrained worker unpacks, distributes, and installs the units.
Carpenters-represented employees receive no training related to the installation of electrical or plumbing outlets or fixtures.
The work in dispute does not entail the actual connection of electrical or plumbing components. Although Carpenters-represented employees are qualified to perform the disputed work and the Employer is satisfied with their performance, employees represented by the Plumbers and the Electricians are also qualified to perform the disputed work. In light of their specialized training, however, employees represented by the Plumbers and the Electricians may be better able to detect problems and prevent damage. We find that this factor slightly favors awarding the disputed work to a composite crew represented by the Plumbers and the Electricians.
6. Economy and efficiency of operations
The Employer presented evidence that assignment of the disputed work to employees represented by the Carpenters is more efficient because they are already working on the site performing other tasks in addition to their headwall unit work. The Employer claims that using its own employees to perform the disputed work gives the Employer more control over the project, ensuring that its schedules are met.
Employees represented by both the Plumbers and the Electricians are also already on the site performing other work. The Electricians contends that it is inefficient for electricians and plumbers to troubleshoot and fix problems that could have been avoided had a trained individual inspected, handled, and installed the equipment. Wayne Frank, an electrician and instructor with the Sacramento Joint Apprenticeship and Training Committee (JATC), testified that “it’s a lot cheaper to deal with it when it’s laying on the ground than after it’s in the wall.” The Plumbers also claim that “it would not be efficient to require a carpenter when a plumber and an electrician are already required.”
Both groups of employees are already on the site performing other work. However, because the composite crew is better able to recognize defects prior to the installation of the headwall and can fix any problems at that point rather than after installation, it may be marginally more efficient and economical for the composite crew to perform the disputed work. Accordingly, we find that this factor slightly supports awarding the disputed work to the composite crew represented by the Plumbers and the Electricians.[10]
7. Interunion agreements
The Electricians and the Plumbers have had an agreement since 1985 that provides for the use of a composite crew of employees represented by those unions for the installation of headwall units. However, neither the Employer nor the Carpenters is a party to that agreement, and they are not bound by it.
The Plumbers and the Electricians argue that this factor favors awarding the disputed work to a Plumbers/Electricians composite crew rather than to Carpenters-represented employees. However, because the Carpenters was not a party to this agreement, this factor does not favor awarding the work to either group of employees.
Conclusion
After considering all of the relevant factors, we conclude
that employees represented by the Carpenters are entitled to perform the work
in dispute. Although the factors of relative
skills and training and economy and efficiency of operations slightly favor
awarding the disputed work to a composite crew of employees represented by the
Plumbers and the Electricians, we find that those factors are outweighed by the
factors of Employer’s preference, past practice, current assignment, and
collective-bargaining agreement that favor awarding the disputed work to
employees represented by the Carpenters.[11] In making this determination, we are awarding
the work to employees represented by the Carpenters, not to that
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the following Determination of Dispute.
1. Employees of Rudolph & Sletten, Inc., represented by Carpenters Union, Local No. 46, are entitled to perform all work involved in receiving, inventory, distribution, layout, and installation of H-3, H-5, H-7, H-10, and H-11 headwall/headboard units in patient rooms at the Kaiser Women’s and Children’s Center, including installation of all components, backing plates, templates, covers, and equipment such as shelves, medical equipment brackets, etc.
2. United Association, Local 447, AFL–CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Rudolph & Sletten, Inc. to assign the disputed work to employees represented by it.
3. Within 14 days from this date, United Association, Local 447, AFL–CIO shall notify the Regional Director for Region 20 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.
Dated,
Robert J. Battista, Chairman
Wilma
B. Liebman, Member
Dennis
P. Walsh,
Member
(seal) National
Labor Relations Board