L & K Contracting Co., Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1980

248 N.L.R.B. 250 (N.L.R.B. 1980)

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 157, Plumbers and Steamfitters Union, affili-
ated with the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada,
AFL-CIO and L & K Contracting Company,
Incorporated' and Local 204, Laborers' Interna-
tional Union of North America. Case 25-CD-
194
March 10, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by L & K Contracting Company,
Incorporated, herein called the Employer, alleging
that Local 157, Plumbers and Steamfitters Union,
affiliated with the United Association of Journey-
men and Apprentices of the Plumbing and Pipefit-
ting Industry of the United States and Canada,
AFL-CIO, herein called the Plumbers, violated
Section 8(b)(4)(D) of the Act by engaging in cer-
tain proscribed activity with an object of forcing
or requiring the Employer to assign certain work
to its members rather than to employees represent-
ed by Local 204, Laborers' International Union of
North America, herein called Laborers.
Pursuant to notice, a hearing was held before
Hearing Officer Frederick G. Winkler on Decem-
ber 11, 1979. All parties appeared and were afford-
ed 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 Employer and the Plumbers. The Plumbers
also filed a motion to quash the notice of hearing.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding,2 the
Board makes the following findings:
' The names of the Employer and the Plumbers Union appear as
amended at the hearing.
2 Employer's motion to strike from the Plumbers brief all references to
the state court proceeding, Case SC-79-1822, in the Vigo County Superi-
or Court is hereby denied. In our judgment, that these references concern
a state court proceeding involving different legal issues goes to their
weight and not their admissibility.
At the hearing, the Plumbers motion to strike certain testimony of wit-
ness Thomas Dashiell was referred by the Hearing Officer to the Board.
That motion is hereby denied.
248 NLRB No. 32
1. THE BUSINESS OF THE EMPLOYER
L & K Contracting Company, Incorporated, is a
utility construction contractor engaged in the in-
stallation of underground water and sewer lines
throughout southern and western Indiana, as well
as portions of Illinois. During the past year, the
Employer has rendered services and supplied mate-
rials in excess of $50,000. The parties stipulated,
and we find, that the Employer is engaged in com-
merce 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
It is uncontested, and we find, that the labor or-
ganizations involved are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer, a construction contractor
member of the Indiana Constructors, Inc. (ICI), is
signatory to a collective-bargaining agreement with
various locals of the Laborers' International Union
of North America, including Local 204. Effective
from April 1, 1979, through January 31, 1982, the
agreement covers the disputed work, the installa-
tion of waterlines.
Since 1965 the Employer has consistently as-
signed work, similar to that in dispute here, to
members of Laborers' Local 204. As far back as
1969, the Plumbers claimed the work in dispute. In
addition to Board decisions involving Plumbers
Local 157 and Laborers' Local 204,3 there have
also been about 15 disputes between these Unions
during the past 10 to 12 years, involving the assign-
ment of work similar to that in issue here. Al-
though efforts have been made by both the Plumb-
ers and Laborers to reach an agreement to avoid
these disputes, a binding agreement has not been at-
tained.
During early October 1979, the Employer was
installling a water main for the Terre Haute Water
Works. On October 2, 1979, the Plumbers had a
meeting with representatives of the Water Works
and the Hoosier Energy Division.4 The Plumbers
requested that the Employer be removed from its
contract to relocate a water main on Hoosier
Energy Division property unless the Employer
used members of the Plumbers.
3 186 NLRB 1103 (1970); 190 NLRB 346 (1977).
The Division owns land on which one of the Employer's projects is
taking place and also owns an unrelated electric plant construction pro-
ject taking place on land adjacent to the property on which the Employ.
er is working.
LOCAL 157, PLUMBERS 251
On October 16, 1979, the plumbers began to
picket the water works job along Old Highway 41.
The lone picketer reappeared at the jobsite on sev-
eral subsequent days in October. The picketer's
sign read:
NOTICE TO THE PUBLIC
L&K CONTRACTING CO.
Threatens the Wage Standards
Established in the Area by
PLUMBERS AND FITTERS
LOCAL NO. 157
This picketing does not have representation,
organization, bargaining, or work jurisdiction
as an object. Employees of this and other em-
ployers are not solicited to cease service in
any manner.
When Employer's vice president, Dashiell, attempt-
ed to cross the picket line, he was asked if he had a
lifetime job and that, if he did not and crossed the
picket line, the picket would see that he was black-
balled in all constructionunions. Upon crossing the
picket line, Dashiell was given a handbill by the
picket. According to the testimony of the Plumbers
business manager, Osborne, the distribution of the
handbill was discontinued after several days be-
cause he was advised that it might be misconstrued
as an appeal to employees of any secondary em-
ployer.
The Employer's secretary-treasurer and general
superintendent, Lindeman, spoke to a picketer on
the Highway 41 project on either October 30 or
31, 1979. The picketer told Lindeman that he was
"out there because it was their type of work." 5
On November 6, 1979, at a Hoosier Energy Di-
vision jobsite where the Employer was laying
water mains which were not part of the construc-
tion project, an individual identifying himself as a
"pipefitter" denied use of a road to employees of
the Employer. When asked if he was a picketer, he
said "no" but that a picketer was supposed to be
coming. A picket was established at the jobsite on
November 8, 1979.
B. The Work in Dispute
The work in dispute is the installation of water-
lines.
C. The Contentions of the Parties
The Plumbers contends that there is no jurisdic-
tional dispute and that the notice of hearing should
be quashed. The Plumbers filed a disclaimer stating
6 The Plumbers contends that any statements by any picketers were
unauthorized and directly violative of their instructions from the Union
that it does not seek an assignment of the work.
The Plumbers further asserts that its picketing was
solely intended to inform the public that the Em-
ployer was paying substandard wages.
The Employer contends that the Plumbers has
engaged in unlawful conduct designed to force the
Employer to assign the disputed work to plumbers
rather than to laborers. The Employer and the La-
borers claim that the Employer had traditionally
assigned the disputed work to laborers. In addition,
the Employer asserts that the instant dispute is part
of a broader jurisdictional controversy between the
Plumbers and the Laborers and that the Board's
award here should extend to similar work by the
Employer throughout the Plumbers jurisdiction.
D. Applicability of the Statute
The charge alleges that the Plumbers violated
Section 8(b)(4)(D) of the Act. As outlined above,
on October 2, 1979, the Plumbers met with repre-
sentatives of the Tenre Haute Water Works and
the Hoosier Energy Division. At that meeting, the
Plumbers sought to have the Employer removed
from its contracts with the Water Works unless it
used plumbers to perform the work. This is evi-
denced by a letter, dated October 8, 1979, from the
Water Works manager, J. E. Sauer, to the Plumb-
ers secretary-treasuer, Jimmie L. Strange. At the
hearing, the Plumbers sole witness, Business Man-
ager Grover Osborn, stated that he believed he had
read the letter. Osborn did not deny that this meet-
ing took place, nor did he state that the letter is in-
accurate in any way.
After this meeting, the Plumbers picketed the
Employer's water works project along Old High-
way 41 on several days in October. On November
6, 1979, a plumber attempted to deny employees of
the Employer access to the Hoosier Energy Divi-
sion project. The Plumbers placed a picket at that
jobsite on November 8, 1979. Based on the forego-
ing and the entire record, we conclude that there is
reasonable cause to believe that Section 8(b)(4)(D)
of the Act has been violated and that the dispute is
properly before us for determination.
E. Merits of the Dispute
1. Board certification and collective-bargaining
agreements
Neither of the labor organizations has been certi-
fied as collective-bargaining representative of the
employees involved in the dispute.
As stated above, the Laborers has a contractual
agreement with the Employer which covers the
work in dispute here and which contemplates that
the employees represented by Laborers are to per-
LOCAL 157, PLUMERS 251
_ _ _
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form that work.6 Accordingly, we find that this
factor favors an award of the work in dispute to
employees represented by the Laborers.
2. Company and area practice
Since 1965 the Employer has consistently as-
signed work similar to that in dispute here to mem-
bers of Laborers' Local 204. It also appears that all
ICI member-contractors signatory to the ICI-nego-
tiated Laborers collective-bargaining agreement use
laborers to perform the disputed work. We con-
clude that this factor favors an award of the disput-
ed work to employees represented by the Laborers.
3. Skills and efficiency and economy
The laborers possess the necessary skills to per-
form the disputed work. While plumbers also have
those skills, the Employer's former president, Wil-
liam Lindeman, testified, without contradiction,
that use of plumbers along with laborers would re-
quire adding two or more plumbers to the payroll
on a particular work crew without decreasing the
number of laborers used for the job.7 In addition
when the laborers perform the work alone, there is
a more efficient operation because they have virtu-
ally no idle time.
We conclude, therefore, that these factors favor
an award of the work in dispute to the Employer's
employees represented by the Laborers.
Conclusions
Based on the entire record and after full consid-
eration of all relevant factors, we shall assign the
work in dispute to employees represented by La-
borers. This assignment is consistent with the col-
lective-bargaining agreement between the Laborers
° Art. I ("Coverage") of that agreement provides in pertinent part:
(c) UTILITY CONSTRUCTION shall include all labor work (in-
cluding skilled and semi-skilled) for the construction of an installa-
tion of utility lines, metallic and non-metallic (clay, terra-cotta, iron-
stone, vitrified, concrete, cast iron, fibre-glass, orangeburge, transite,
plastic, etc.), pipe for storm and sanitary sewers and drainage; water
lines; water treatment plants; sewage treatment plants; pump stations;
lift stations; cables; ducts; air-lines; gas lines; steam lines; conduit
lines; making of joints; sheeting; trenching; manhole erectors; digging
and backfilling of all ditches; cutting of streets and surfaces and re-
finishing of same; in free air or tunnel projects.
The unloading and distribution of all pipe and material used in the
performance of work as set forth above
The connections of utilities to the point of first connection outside
the building foundation not to exceed 3 feet from the foundation.
The laying of pipe and making of all connections and/or joints on
any and all types of utilities . ... [Emphasis supplied.]
7 This was the Employer's practice between 1955 and 1962, the last
time plumbers performed the work.
and the Employer, employer industry and area
practice, requisite skills, and the efficiency and
economy of operations. In addition, the Employer
has been satisfied with the performance of its em-
ployees who are represented by the Laborers. In
making this determination, we are assigning the
work to employees who are represented by Local
204, Laborers' International Union of North Amer-
ica, but not to that Union or its members.8
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of L & K Contracting Company,
Incorporated, Terre Haute, Indiana, who are repre-
sented by Local 204, Laborers' International Union
of North America, are entitled to perform the in-
stallation of waterlines at the project at the Hoosier
Energy Division property in Merom, Indiana, and
the project on old U.S. Highway No. 41, north of
Terre Haute, Indiana, in the vicinity of C. F. In-
dustries.
2. Local 157, Plumbers and Steamfitters Union,
affiliated with the United Association of Journey-
men and Apprentices of the Plumbing and Pipefit-
ting 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 L
& K Contracting Company, Incorporated, to assign
the disputed work to employees represented by
that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 157, Plumbers
and Steamfitters Union, affiliated with the United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, shall notify the Re-
gional Director for Region 25, in writing, whether
or not it will refrain from forcing or requiring the
Employer, by means proscribed by Section
8(b)(4)(D) of the Act, to assign the disputed work
in a manner inconsistent with the above determina-
tion.
8 The Employer urges an award that extends throughout the territorial
jurisdiction of Plumbers Local 157, and covers both current and future
Employer projects. We are not persuaded, however, that the record sup-
ports an award of this scope, and we shall limit our award to the jobsites
where the instant dispute arose.