L.246, SEIU, et. Al v. City, 18 OCB 23 (BOC 1976) [Decision No. 23-76 (Cert.)] OFFICE OF COLLECTIVE BARGAINING BOARD OF CERTIFICATION --------------------------------X In the Matter of U.A. PLUMBERS Locals 1, 2, 371 and Steamfitters, Local 638, DECISION NO. 23-76 AFL-CIO, jointly DOCKET NO. RU-429-74 -and-CITY EMPLOYEES UNION, LOCAL 237, I.B.T. -and-LOCAL 246, SEIU, AFL-CIO -and-CITY OF NEW YORK and RELATED PUBLIC EMPLOYERS --------------------------------X D E C I S I 0 N and DIRECTION OF ELECTION The petition of U.A. Plumbers Locals 1, 2, 371, and Steamfitters Local 638, as amended, seeks joint certification as exclusive collective bargaining representative of employees in the titles of Plumber’s Helper, Plumber, Foreman Plumber, Pipe Caulker, 1 Tapper, Thermostat Repairer, Foreman Thermostat Repairer, Steamfitter’s Helper, Steamfitter, and Foreman Steamfitter. The employer, City of New York, does not oppose the petition. 2 1 Petitioner Local 2 is certified (6 NYCDL No. 49) for the single title of Pipe Caulker. 2 The City appeared on two of the hearing dates and took the position that it had no objection to the unit sought by petitioners (Tr. 5).
Decision No. 23-76 2 Docket No. RU-429-74
Decision No. 23-76 3 Docket No. RU-429-74 Local 237, I.B.T. was permitted to interne by the Board’s Decision No. 37-74. Local 237 claims the petitioned titles should more appropriately be grouped in the following units: 3 (1) Pipe Caulker and Tapper: (2) Plumber’s Helper, Plumber, and Foreman Plumber; (3) Thermostat Repairer and Foreman Thermostat Repairer; (4) Steamfitter’s Helper, Steamfitter, and Foreman Steamfitter. In Decision No. 44-74, the Board allowed Local 246, SEIU to intervene in the hearing that had been ordered on the unit question. Local 246 seeks a unit of Steamfitter’s Helper, and Foreman Steamfitter. Or, in the alternative, it seeks to “accrete” steamfitters into an existing unit of various mechanics certified to Local 246. 4 Hearings were conducted before Joan Weitzman, Trial Examiner, on January 22, February 25, March 17, April 23, and May 6, 1975, for the purpose of taking evidence regarding the unit placement of the petitioned titles. 3 The approximate number of employees in these units as follows: Unit 1 (Pipe Caulker and Tapper) - 75 Unit 2 (Plumber’s Helper, Plumber and Foreman Unit 3 (Thermostat Repairer and Foreman Thermostat Repairer) - 19 Unit 4 (Steamfitter’s Helper, Steamfitter, Foreman Steamfitter) - 120 4 Decision No. 54-70, as amended by Decisions 64-71, 36-73, and 44-75.
Decision No. 23-76 4 Docket No. RU-429-74 Positions of the Parties The joint petitioners take the position that the similarity of skills and training and the interrelation of duties in the subject titles justify their placement in one unit. The petitioners also point to the frequent and historic interchange among employees in these titles and to the fact that in most areas of the United States all of these subject titles are represented by one U.A. local union. In addition to the strong community of interest which allegedly exists among employees in the job titles, petitioners argue that placement in one unit is consistent with the Board’s decisions and will contribute to efficient operations and sound labor relations policies. Local 237 contends that an overall unit “would cause the diminution of the representation for certain of the titles included in this conglomerate unit.” (Tr.5.) It argues that there are individual crafts involved here which historically have been represented separately. Local 237 also argues that the combination in one unit of the subject titles would serve no purpose because wage negotiations for these titles are conducted at the Comptroller’s office under Section 220 of the Labor Law:
Decision No. 23-76 5 Docket No. RU-429-74 “The unions that represent these titles could continue to represent them in bargaining at the Comptroller’s office. The City, whether it be the Office of Labor Relations or the Comptroller’s Office, would be forced to go through the same kind of negotiations that presently take place. The only difference that could possibly be seen is that one or another of the Unions would have exclusive check-off, but even in this case, the history for 220 titles indicate [sic] that where the exclusive check-off is granted to a union, any other Union can still collect dues by hand and maintain its representative status in the Comptroller’s office.” Finally, Local 237 challenges the status of the joint petitioners as public employee organizations., The basis of this challenge is its allegation that the petitioners have membership eligibility requirements which have resulted in the exclusion of certain City employees even though they have satisfied civil service requirements for appointments to their jobs. Local 246, SEIU, argues that the petitioned for unit is inappropriate because it will deny public employees the fullest freedom in exercising rights granted by the NYCCBL (in contravention of Rule 2.10 of the Revised Consolidated Rules of the OCB). Local 246 seeks a separate unit of Steamfitters or, alternatively the “accretion” of
Decision No. 23-76 6 Docket No. RU-429-74 Steamfitters to an existing Local 246 unit of mechanics and skilled craftsmen. Local 246 points out that historically it has represented Civil Service Steamfitters. In its view, the joint petition is merely “a blatant attempt to disrupt collective bargaining; it’s an attempt to disrupt the traditional liaisons that these individuals, who are mechanics. . . have had with Local 246, which is basically a mechanics union” (Tr.401). Local 246 also argues that in making its unit determination, the Board should consider the adequacy of representation which Locals 638 and 246 have given public sector steamfitters. Local 246 claims that Local 638’s record in representing Civil Service Steamfitters has been poor, especially “when business was good in the private sector,” whereas Local 246 “negotiated collective bargaining agreements for its skilled craftsmen members in the ‘prevailing rate’ category before Local 638 or for that matter Locals 1,2, and 371 even knew that non-economic agreement could be negotiated for prevailing rate employees.” Local 246 emphasizes that it represents the greatest number of publicly employed Steamfitters and argues that the logical placement of Steamfitters, Foreman Steamfitters, and Steamfitte’s Helpers would be in a Local 246 bargaining unit comprised of some 1500 craftsmen, including approximately 340 Plumbers, Foremen Plumbers, Plumber Helpers, Thermostat Repairers, Foremen Pipe Caulkers and Tappers.
Decision No. 23-76 7 Docket No. RU-429-74 Local 246, like Local 237, points out that, regardless of the Board’s unit determination in the instant case, the contesting unions would still be able to represent Steamfitters and the other titles involved herein at wage negotiations before the Comptroller. A decision favorable to the Petitioners, therefore, would not result in a major change in bargaining structure. Although Local 246 concedes that there is a strong community of interest among the subject titles in the private sector, it emphasizes that plumbing and steamfitting are separate trades. It also argues that the publicly employed Steamfitters in New York City work in the same departments with 1500 skilled craftsmen represented by Local 246 (i.e. auto mechanics, auto machinists, sheetmetal workers, etc.) and have a strong community of interest with them. In response to the petitioners’ emphasis on the fact that the City does not oppose their position, Local 246 maintains that the City’s only interest is in reducing the number of units with which it must deal. The same result would be achieved, claims Local 246, if Steamfitters were accreted to any other group. Moreover, the inclusion of Steamfitters in an existing unit of various mechanics certified to Local 246 would not contravene the long-standing -policy of the Board of Certification to combine similar titles into larger units.
Decision No. 23-76 8 Docket No. RU-429-74 Finally, Local 246 alleges that at least some of the petitioning union maintain membership eligibility requirements that differ from those required by the City for permanent appointment to the titles involved herein. It is the position of Local 246 that “a union should no be certified to represent a unit whose members have been refused membership in said union.” In conjunction with its arguments on membership eligibility standards, Local 246 contends that Steamfitters Local 638 never sought certification until the Plumbers Union permitted Local 638 to join in the petition: “Local 638 saw a way to obtain certification for the publicly employed Steamfitters that it could never get as a petitioner on its own or even as an inter-venor. The Plumbers being the largest single group in the unit, the thought was that even if nearly every Steamfitter voted against the petitioners, especially petitioner Local 638, the overwhelming number of loyal Plumbers for whom there is no contest, would still see to it that Local 638 got the certificate for Steamfitters. To allow such a unit, therefore, would be to disenfranchise the substantial majority of Civil Service Steamfitters and force them to be represented by a union which has a past history of not even allowing them to apply for membership.”
Decision No. 23-76 9 Docket No. RU-429-74 1. Bona Fides of the Joint Petitioners The first question to be considered is whether or not the joint petitioners are public employee organizations within the meaning of the New York City Collective Bargaining Law. Section 1173-3.0j of the NYCCBL defines a “Public organization” as: “any municipal employee organization or association of public employees, a primary purpose of which is to represent public employees concerning wages, hours, and working conditions.” Local 237 and 246 challenge the status of the joint petitioners as public employee organizations on the basis of their traditional roles as private sector unions and because of their policies concerning admission into membership. With respect to the petitioners’ dual roles in both private and public employment, the Board has held that “[T]he fact that an organization seeks to represent employees in both the public and private sectors in no way makes it strictly a private sector employee organization. And, we further find that nothing in the NYCCBL prohibits a public sector employee organization from having a dual function and also being a private sector employee organization.” No. 18-74.
Decision No. 23-76 10 Docket No. RU-429-74 Therefore, if the record establishes that the joint petitioners meet the statutory requirements of a public employee organization, the fact that they also represent private sector employees will not detract from their employee organization status. To support their contentions regarding Petitioner’s membership policies, Local 246 and 237 presented three witnesses whose testimony about events which occurred several years ago was confused and evasive. Each witness made unsupported allegations regarding discriminatory membership eligibility requirements in the Petitioner unions and, under cross-examination, indicated that their non-membership in the Petitioner unions was due to Personal preference rather than denial of membership. In sum, their recollection of events was vague, and their testimony was contradictory and lacking in probative value. The testimony of other witnesses, however, raised questions in regard to whether the membership policies of the petitioner unions fully meet the standards required by the Taylor Law and New York City Collective Bargaining Law. On the issue of union membership policies, the New York State Public Employment Relations Board, in City School District of White Plains, 2 PERB 3009 (1969), stated:
Decision No. 23-76 11 Docket No. RU-429-74 “We are concerned that persons within the unit deemed to be appropriate may be ineligible for membership in one or both of the employee organizations seeking to represent employees within the unit. No employee organization may be certified to represent a unit if it refuses to admit some of the employees within such unit to membership.” In Decision No. 16-75, Detective Investigators Benevolent Association and City Employees Union, Local 237, I.B.T. and city of New York, this Board held that in order to meet the bona fides test, a union must admit to membership all employees in the unit. The record in the instant matter indicates that at least one of the petitioning unions does not admit into membership employees holding certain provisional titles. As the Board stated in the Detective Investigators case, however: “This defect is not fatal to the bona fides of the Petitioner; however, if certified as the collective bargaining agent, the DIBA as a condition of that certification must fairly represent the employees in the unit as certified and admit all employees in the unit to membership on the same terms.”
Decision No. 23-76 12 Docket No. RU-429-74 Clearly,,the same requirement applies to the joint petitioners herein, who have acknowledged same in individual letters submitted to this Board. In their letters, the joint petitioners affirm that, if certified, they will protect all rights accorded to public employees under the Taylor Law and New York City Collective Bargaining Law. These rights include the granting to all employees in the bargaining unit of membership in the subject union. Thus, all members of the bargaining unit will have voting rights in the certified unions with respect to contract ratification and election of officers. The Appropriate Bargaining Unit The petitioners introduced into evidence Civil Service Notices of Examinations for the titles at issue herein in support of their position that the employees sought to be placed in a single unit have a community of interest. The notices for the titles of Plumber’s Helper, Plumber, Foreman Plumber, and Steamfitter, Steamfitter’s Helper, and Foreman Steamfitter indicate that the duties and training required of those titles are analogous. The Plumbers’ notices involve the installation, maintenance,
Decision No. 23-76 13 Docket No. RU-429-74 and repair of piping for water, waste, soil, and vent lines and the installation, extension, and repair of gas, water, plumbing, and drainage systems. Those for Steamfitter’s Helper, Steamfitter, and Foreman Steamfitter relate to piping and equipment for compressed air and heating systems. Several witnesses testified that Steamfitters and Plumbers possess similar, even interchangeable skills, and are in fact part of the same craft. Moreover, in private industry there is an interchange program under which plumbers on occasion do steamfitting work and steamfitters perform plumbing duties. The major distinction between the two titles is that Plumbers work primarily with water while Steamfitters work primarily with steam. Both Steamfitters and Plumbers have apprenticeship programs of five years’ duration. Witnesses testified that there are “no major differences” between the two programs (Tr. 117), and that they provide the same basic training during the first few years. A minor difference between the programs, according to one witness, is that the Steamfitter apprenticeship program may emphasize welding to a larger degree than does the plumbing apprenticeship program.
Decision No. 23-76 14 Docket No. RU-429-74 The testimony of several witnesses as well as the pertinent examination announcements indicate that the title of Pipe Caulker, Tapper, Thermostat Repairer and Foreman Thermostat Repairer are, in effect, subtitles within the plumbing craft. The Caulker’s task, put simply, is to join together lengths of cast iron pipe and to make pipes water tight. Tappers assemble and operate machines for the insertion of corporate taps in City water mains under pressure. Thermostat Repairers test, maintain, install, and repair various types of thermostats and related equipment used for the control of heating, ventilation, and air conditioning systems. Several witnesses testified, without challenge, that both Plumbers and Steamfitters perform tapping, caulking, and thermostat repairing and that these functions are considered “a phase of plumbing” (Tr. 168) and “the regular work of a plumber.” (Tr. 221).
Decision No. 23-76 15 Docket No. RU-429-74 All of the employees covered by the petition are entitled to have their wages and certain supplemental benefits established at the “prevailing rate” by a determination of the City Comptroller, pursuant to §220 of the Labor Law. The testimony of several witnesses indicates that the “prevailing rates” for the subject titles are based on petitioners’ contracts with private industry employers. It is customary practice, however, after hearings at the Comptroller’s office to reach compromise wage “accords and settlements” rather than “true” prevailing rate fixations. Six of the ten titles petitioned for are subject to one hearing before the Comptroller’s office and are covered by the same determination (Plumbers, Foreman of Plumbers, Plumbers’ Helpers, Thermostat Repairers, Foremen of Thermostat Repairers, Tappers). Steamfitters, Steamfitters’ Helpers, and Foremen Steamfitters currently are covered by a separate Comptroller’s determination. Pipe caulkers are covered by a third determination. As to the claim of Local 246 that City-employed steamfitters work in the same departments with skilled craftsmen represented by Local 246, the Board finds no substantiating evidence. The largest single
Decision No. 23-76 16 Docket No. RU-429-74 employer of Steamfitters is the Health and Hospitals Corporation with almost one-half of the City-wide total (120). But the Health and Hospitals Corporation employs only twenty-seven of the total of 1,181 skilled craftsmen (mechanic titles) represented by Local 246. The remaining Steamfitters are distributed fairly evenly among ten agencies. Conversely, the -majority (740 out of 1,181) of the skilled craftmen represented by Local 246 serve in the Environmental Protection Agency which, however, employs only nine of the 120 Steamfitter employees. As a matter of fact, the Board ascertained that there is a closer correlation as to employing agencies between the Steamfitters and Plumbers. Counsel for Local 246 claimed that Local 638 did not fully participate in the Section 220 hearings during the negotiations from 1970 through 1972. He argued, therefore, that the Board, in applying the history of bargaining criterion under Rule 2.10, should find Local 638 “not fit” to represent Steamfitters in an appropriate unit. (Tr. 357.) The record indicates, however, that the Steamfitters’ local was represented not only at Comptroller’s hearings in 1970 and 1972, but also at the most recent hearings, which were conducted during the period of hearings on the instant certification petition.
Decision No. 23-76 17 Docket No. RU-429-74 But regardless of whether the record supports the contentions of Local 246, the Board has held that the alleged failure of a union to fairly represent all employees in a bargaining unit does not affect the appropriateness of the unit. (Decision No. 58-68, Supreme Court Probation officers Association and Judicial. Conference). As the Board stated in Decision No. 58-68, “. . . even if true, the facts alleged would not establish the inappropriateness of the unit, but only a breach of duty on the part of the certified representative.” Whether or not Local 638 adequately represents the interest of Steamfitters is not a concern of this Board, but rather, is a matter for employees to consider in the election process. From the evidence adduced, the Board finds that the employees in the titles involved in this proceeding have a sufficient mutuality of interest in their terms and conditions of employment, and are sufficiently allied in their skills, to warrant inclusion in a single bargaining unit. All of the titles belong to the same international union, and in many localities throughout the United States, Plumbers, Steamfitters and related titles are not separated, but rather, are organized in one local union. Plumbers and Steamfitters work closely on the job site; many of their skills are interchangeable;
Decision No. 23-76 18 Docket No. RU-429-74 and in the private sector, there is, in fact, a formal interchange program under which Plumbers occasionally work on a job as Steamfitters and vice versa. The testimony and evidence presented demonstrate that the petitioned for titles have similar educational requirements, including apprenticeship programs that are almost identical in terms of length of training, hours involved, course of instruction, and graduation requirements. With respect to wages and supplements, all of the titles are classified in Rule X, the skilled Craftsman and Operative Service. As such, they are subject to Comptroller’s determinations for prevailing rate employees, and in some instances they participate together in the Comptroller’s hearings and are covered by the same determination. The Comptroller’s determinations submitted in evidence indicate that the plumbing and steamfitting titles enjoy similar pay scales and fringe benefits. Thus, there is clearly a close community of interest in combining the subject titles into one unit for collective bargaining purposes. We have repeatedly held that employees in titles in the same or related craft are properly placed in the same bargaining unit. (See Dec. No. 61-71, Local 246, SEIU and City of New York; Dec. No. 62-71, Local 3, IBEW
Decision No. 23-76 19 Docket No. RU-429-74 and D.C. 37, AFSCME and Local 246, SEIU and City of New York, Dec. No. 59-68, D.C. 37, AFSCME and City of New York and Pavers and Roadbuilders District Council, AFL-CIO.) Moreover, in Dec. NO. 61-71, Local 246, SEIU and City of New York, we specifically found that a unit comprised of employees subject to Labor Law Section 220 prevailing rate procedures “may properly be more diverse and heterogeneous than a bargaining unit of ordinary titles faced with the full range of bargaining issues.” Additionally, the Board has noted that “[b]argaining units frequently include numerous titles in one or several related occupational groups despite differences in salary ranges, and variations in duties and promotional lines” (Dec. No. 12-70, Local 300, SEIU and City of New York and Local 237, IBT). From all of the foregoing, the Board concludes that a single, jointly certified unit will insure these employees their statutory rights of representation and meet the standards for appropriate units set forth in §2.10 of our Rules. The joint petitioners and Local 237 have demonstrated a sufficient showing of interest in the unit herein found to be appropriate. They are, therefore, entitled to participate in the election to be conducted herein.
Decision No. 23-76 20 Docket No. RU-429-74 Local 246 has offered proof of interest only in the unit it has claimed to be appropriate. In Decision No. 44-74, however, the Board stated that in the event an election were ultimately held after the unit determination was made, Local 246 would be required to submit a sufficient showing of interest in the unit found appropriate in order to be included on the ballot. Therefore, in the interest of equity and fairness, the Board will afford Local 246 ten days additional time to submit 10% proof of interest in the unit found appropriate, as required by Rule 2.12. If the newly executed proof of interest is timely submitted within ten days of the date of service of this decision, Local 246 shall be included on the ballot. D E C I S I 0 N and DIRECTION OF ELECTION Pursuant to the powers vested in the Board of Certification by the New York City Collective Bargaining Law, it is hereby
Decision No. 23-76 21 Docket No. RU-429-74 DETERMINED, that the unit appropriate for collective bargaining consists of employees in the following titles: Plumber’s Helper Plumber Foreman Plumber Pipe Caulker Tapper Thermostat Repairer Foreman Thermostat Repairer Steamfitter’s Helper Steamfitter Foreman Steamfitter and it is further DIRECTED, that an election by secret ballot shall be conducted under the supervision of the Board of Certification, or its agents, at a time, place, and during . hours to be fixed by the Board among all Plumber’s Helpers, Plumbers, Foreman Plumbers, Pipe Caulkers, Tappers, Thermostat Repairers, Foreman Thermostat Repairers, Steamfitter’s Helpers, Steamfitters, and Foreman Steamfitters employed within the City of New York during the payroll period immediately preceding the date of this Direction of Elec-
Decision No. 23-76 22 Docket No. RU-429-74 tion (other than those who have voluntarily quit or have been discharge d before the date of the election), to determine whether or not they desire to be represented for the purposes of collective bargaining by U.A. Locals 1,2,371 and Steamfitters Local 638, jointly; by Local 237, I.B.T.; or by Local 246, SEIU, if it files proof of interest, consisting of 10 percent, of the unit found appropriate, within 10 days from the date of service of this Direction of Election. DATED: New York, N June 30, 1976 ARVID ANDERSON Chairman WALTER L. EISENBERG Member ERIC J. SCHMERTZ Member
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