Local 157, Pipefitters

National Labor Relations Board - Board Decisions

Dec 4, 1970

186 N.L.R.B. 1103 (N.L.R.B. 1970)

LOCAL 157, PIPEFITTERS
Local 157, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada,
AFL-CIO and L & K Contracting Company, Inc.
and Local 204, Laborers' International Union of
North America , AFL-CIO, Intervenor. Case
25-CD-86
December 4, 1970
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
the filing of charges by L & K Contracting Company,
Inc., herein called the Employer, alleging that Local
157, United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, herein called
Plumbers, violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign certain
work to Plumbers rather than to employees represen-
ted by Local 204, Laborers' International Union of
North America, AFL-CIO, herein called Laborers.
Pursuant to notice, a hearing was held before
Hearing Officer John W. Gray on June 9, 1970. All
parties 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. Thereafter, briefs were filed by the
Employer, Plumbers, and Laborers. 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
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing, and finds that they are
free from prejudicial error. The rulings 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 EMPLOYER
L & K Contracting Company, Inc., is an Indiana
corporation engaged in the construction of heavy
utility facilities including water mains, gas mains,
sewers, and underground power ducts, and is also
engaged in railroad construction and maintenance. Its
gross volume of business in 1969 was approximately
1103
$400,000. During that year it purchased goods and
materials in excess of $50,000 from sources outside
the State of Indiana. The parties stipulated, and we
find, that L & K Contracting Company, Inc., is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act. We further find that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Plumbers
and Laborers are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Facts
On November 3, 1969, the Employer entered into a
contract with the city of Greencastle, Indiana, for the
construction of certain water mains in Greencastle.
Thereafter, by letter dated November 18, 1969, the
Employer assigned the work in question-the hand-
ling and installation of the water mains and pipes-to
employees represented by Laborers. Construction
began on or about December 11, 1969.
The work on the project involved the installation of
water mains and other underground piping and
appurtenances. The trench in which the main is
placed is excavated by a backhoe (operated by an
employee represented by the Operating Engineers)
and is then leveled off by laborers (represented by
Laborers) using handtools. A clamp is placed on the
pipe so that the backhoe can lower it into the trench.
After the pipe is lowered into the trench by the
backhoe, the spigot end of the pipe is lubricated by
laborers standing in the trench. Using the backhoe,
the spigot end is then guided into the bell end of the
pipe already in the trench (after the bell end has been
lubricated) so that both pipes can be joined. As the
pipes are joined, pea gravel is placed underneath and
around the joint by a laborer in order to secure a
proper bedding. The trench is then backfilled by the
backhoe and the ground is resurfaced by the laborers.
On December 17, 1969, Austin and Strange,
Plumbers agents, met with Lindeman, the Employer's
secretary treasurer, and asked why the installation of
the mains had not been assigned to employees
represented by Plumbers. Lindeman stated that the
installation of the mains had been assigned to laborers
pursuant to the Employer's collective-bargaining
agreement with Laborers. In reply Austin stated,
"Well, you leave me no choice but to picket thejob."
On Monday, December 22, 1969, a picket appeared
at the jobsite with a sign which read: "Unfair to
186 NLRB No. 152
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers and Steam Fitters, Local 157." The picket-
ing continued until about January 13, 1970.
On or about April 16, 1970, a picket reappeared at
the jobsite with a sign reading "L & K Contracting
Company, Inc., does not employ union members of
Plumbers and Fitters Local 157. This is an informa-
tional picket. Other crafts may continue to work on
this project." The picketing continued until on or
about May 4, 1970.
Certain employees walked off the job on both
occasions when the pickets appeared.
B. The Work in Dispute
The work in controversy involves the handling and
installation of cast-iron water mains, plastic and
copper water pipes or lines, and various appurten-
ances connected thereto.
C. The Contentions of the Parties
Plumbers asserts that the notice of hearing should
be quashed on two grounds: (1) All the parties have
agreed to the National Joint Board procedures as the
method for adjusting the dispute and (2) there is no
reasonable cause to believe that the proscription
contained in Section 8(b)(4)(D) has been violated.
Alternatively, Plumbers argues that, if the Board does
find that the controversy is properly before it for
determination under Section 10(k), the work should
be awarded to the employees whom it represents
because they have traditionally performed similar
work for the Employer at all times prior to the present
dispute, and also for other employers throughout the
area; and, in addition, are more qualified than
laborers to do the work by virtue of their special skills,
and because the parent organizations of Plumbers
and Laborers agreed in 1941 that Plumbers had
jurisdiction over the type of work herein.
The Employer and Laborers deny that they have
agreed to submit the dispute to the National Joint
Board for settlement. The Employer maintains that
there is reasonable cause to believe that Section
8(b)(4)(D) has been violated, and, along with Labor-
ers, contends that the work should be awarded to
employees represented by Laborers. In addition, the
Employer asserts that the instant dispute is part of a
broader jurisdictional controversy between Laborers
and Plumbers, and that the Board's award herein
should extend to similar work by the Employer
throughout Plumbers jurisdiction. In support of this
assertion, the Employer points to several prior Board
awards dealing with similar work and Plumbers
I See Plumbers & Steamfrtters Local Union No 189 (R W Wander,
Inc), 176 NLRB No 129, and Building and Construction Trades Council of
Las Vegas (Charles J Dorfman), 173 NLRB No 208
2 For the same reason, we likewise reject Plumbers request that the
threaten that it would continue to claim any such
work performed by the Employer within its jurisdic-
tion.
D. Applicability of the Statute
Before the Board may proceed to 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, and
that the parties have not agreed upon methods for the
voluntary adjustment of the dispute.
In considering this question, we are faced at the
outset with Plumbers claim that the parties have
agreed to have the National Joint Board determine
the dispute. Plumbers adduced no evidence to support
its claim other than that the Employer had agreed
with another labor organization, Operating Engi-
neers, to be bound by the National Joint Board with
respect to work covered by their collective-bargaining
agreement. There is no similar provision, however, in
the agreement between the Employer and Laborers.
Accordingly, the fact that the Employer and the
Operating Engineers have agreed in an unrelated
collective-bargaining agreement to follow the Nation-
al Joint Board's resolution procedure has no bearing
on this case, as it is clear that the Employer itself has
not agreed to utilize this procedure involving the
instant dispute.' As we find that the Employer is not
bound to the National Joint Board procedures with
respect to the dispute now before us, we do not, as
noted below, find controlling the fact that Plumbers
had unilaterally, and without the consent of the
Employer, submitted the dispute to the National Joint
Board, and that the National Joint Board thereafter
issued an award favorable to Plumbers.2
Turning to whether there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated, the
record establishes that Austin, Plumbers agent,
threatened to picket the jobsite on December 17,
1969, after he had learned that the Employer had
awarded the work in dispute to its laborers. Although
Plumbers contends, inter aba, that a purpose of the
subsequent picketing was to inform the public that the
Employer was paying the laborers wage rates which
were below the area rate paid to plumbers, we note
Austin did not at that time give any indication that the
picketing would be directed solely at the Employer's
wage rates. Thereafter, Plumbers picketed the Em-
ployer's jobsite from December 22, 1969, to January
13, 1970, and subsequently reinstituted the picket line
on April 16, 1970. None of the picket signs alluded to
the fact that the Employer was not paying the area
issuance of the award herein should be stayed pending disposition of
Plumbers' claim, filed in the United States District Court for the Southern
District of Indiana, that the Employer and Laborers refusal to adhere to
the National Joint Board's award constitutes a breach of contract
LOCAL 157, PIPEFITTERS 1105
wage scale. The record further establishes that by
letter dated January 2, 1970, Plumbers informed
another employer, Terre Haute Water Works Corpo-
ration, inter alia, that "We will continue to picket L &
K Company on all jobs unless they recognize our
rightful Jurisdiction."
It is clear from the foregoing that at least one
purpose of the picketing was to force the Employer to
assign the work in question to employees represented
by Plumbers, rather than to employees represented by
Laborers. Accordingly, we find that there is reasona-
ble cause to believe that a violation of Section
8(b)(4)(D) has occurred and that the dispute is
properly before us for determination under Section
10(k) of the Act.3
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to various relevant factors. The
following factors are relevant in making a determina-
tion of the dispute before us.
1. Certification and collective-bargaining
agreements
Neither of the labor organizations involved herein
has been certified by the Board as the collective-
bargaining representative for a unit of the Employer's
employees.
Laborers has been recognized by, and has entered
into a contractual agreement with, the Employer
which contemplates that the employees represented
by Laborers are to perform the work in dispute.
Although Plumbers had at one time had a collective-
bargaining agreement with the Employer assigning
the work to the employees it represented, and the
Employer had honored this provision, the most recent
agreement had expired prior to the picketing. We find,
therefore, that the contractual agreement between
Laborers and the Employer favors Laborers.
As noted above, Plumbers contends that the 1941
agreement between the parent organizations of the
two Unions involved herein favors an assignment of
the work in dispute to members of Plumbers. As we
have previously held, however, the precise meaning of
the agreement is unclear in terms of its applicability to
the kind of dispute herein, and thus does not support
Plumbers claim that the disputed work should be
assigned to it pursuant thereto.4
2. Skills and efficiency
There is no showing that the disputed work requires
a degree of skills not possessed by laborers. Thus, the
record establishes that the laborers are quickly able to
master the relatively few skills needed for performing
the work in question and that they have performed the
work to the satisfaction of the Employer.
The record further establishes that the continued
use of laborers is more efficient and economical than
would be the case if the plumbers were to perform the
work in question. Under its present practice, the
Employer uses four laborers to perform the disputed
work. If forced to use plumbers, however, the
Employer would have to employ two plumbers and
three laborers. Thus, the Employer is now able to
perform the same amount of work with one fewer
employee than would be the case if the plumbers were
assigned the work. Moreover, because Plumbers
claims only the actual installation of the piping and
does not seek to perform the other requisite steps
(such as digging, backfilling, etc.), their employment
would result in additional idle time for themselves and
for the laborers, as each group would have to wait for
the other to complete its respective duties. This, of
course, would be in marked contrast to the present
practice where the laborers have no idle worktime, but
are expected to perform a wide variety of tasks in
succession and without interruption. Accordingly, we
find that these factors favor an award to employees
represented by the Laborers.
3. Company and area practice
Plumbers points to the fact that, until the instant
dispute, the Employer has always employed plumbers
to perform the work in question within Plumbers
geographical jurisdiction. The Employer and Labor-
ers, on the other hand, argue that laborers frequently
perform the type of work herein for other employers
within Plumbers jurisdiction, and that, but for one or
two exceptions, the Employer has consistently as-
signed work similar to that herein to laborers through-
out the rest of the State of Indiana over the past several
years. As the record establishes that the area practice
is mixed, we find that the Employer's past assignment
of similar work to plumbers within Plumbers geo-
graphical jurisdiction is not controlling.
4. The National Joint Board Award
Although, as indicated, supra, we do not consider
the National Joint Board's Award binding on the
Employer and Laborers, we do consider it a factor in
determining the proper assignment of work in dispute.
However, in view of all the circumstances, we are of
3 For the reasons indicated, we deny Plumbers motion to quash the
notice of hearing
4 See Building and Construction Trades Council of Las Vegas (Charles J
Dorfman), supra
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the opinion that the National Joint Board's Award
should not be given controlling weight.5
Conclusions
Having considered all pertinent factors, we conclu-
de that employees represented by Laborers are
entitled to perform the work in dispute. The assign-
ment to Laborers is not inconsistent with either the
Employer's past practice throughout the State of
Indiana or the area practice. Laborers are at least as
skilled as plumbers with respect to performing the
disputed work, and the Employer has been satisfied
with the quality of the laborers' work and their
efficiency. On the basis of the entire record, therefore,
we shall determine the existing jurisdictional dispute
by awarding the work in question to the employees
represented by Laborers, but not to that Union or its
members. In consequence, we shall also determine
that Plumbers was not and is not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force
or require the Employer to assign the disputed work to
its members.
In issuing our award, we note that Plumbers has
threatened to picket at the Employer's future jobsites
unless the Employer assigns all the work of this kind
to its members. In our view, such a threat does not
alone establish that similar disputes will necessarily
occur in the future. Accordingly, we hold that the
determination in this case should include only the
presentjob on which the dispute arose.
5 Cf Plumbers and Steamfnters Local Union No 189 (R W Wander,
Inc ), supra
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
hereby makes the following determination of dispute:
1. Employees of L & K Contracting Company,
Inc., who are currently represented by Local 204,
Laborers ' International Union of North America,
AFL-CIO, are entitled to perform the work of
installing and laying mains, pipes, and other related
work at thejobsi te in Greencastle , Indiana.
2. Local 157, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting
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, Inc., to assign such work to
plumbers it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Local 157, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, shall notify the
Regional Director for Region 25, in writing , whether
or not it will refrain from forcing or requiring L & K
Contracting Company, Inc., by means proscribed by
Section 8 (b)(4)(D) of the Act, to assign such work to
plumbers represented by it, rather than to employees
represented by Laborers.
A U S GOVERNMENT PRINTING OFFICE 1973 0-469-941