194 N.L.R.B. 655 (N.L.R.B. 1971)

Local 210, Laborers

National Labor Relations Board - Board DecisionsDec 21, 1971

194 N.L.R.B. 655 (N.L.R.B. 1971)

LOCAL 210, LABORERS 655 Local 210, Laborers International Union of North America, AFL-CIO and The Edward J. Debartolo Corporation and Construction Industry Employers Association , Inc. and Plumbers Local Union No. 36 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO. Case 3-CD-348-2 corporation engaged in the building and construction industry. During the past year, a representative period, the Employer performed services for custom- ers located outside the state valued in excess of $50,000. Upon the facts so stipulated, 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. December 21, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Construction Industry Employers Association, Inc., herein called CIEA, on behalf of its member, The Edward J. DeBartolo Corporation, herein called the Employer, alleging that Local 210, Laborers International Union of North America, AFL-CIO, herein called Laborers Local 210, had 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 employees represented by Laborers Local 210, rather than to employees represented by Plumbers Local Union No. 36 of the United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called Plumbers Local 36. A hearing was held before Hearing Officer Douglas D. Walldorff on April 27 and 28, May 20 and 21, and June 10, 1971, in Buffalo, New York. 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 upon the issues. Thereafter, briefs were filed by Laborers Local 210, Plumbers Local 36, and jointly by the CIEA and the Employer. 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 Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE EMPLOYER The parties stipulated that the Employer is an Ohio 194 NLRB No. 99 II. THE LABOR ORGANIZATIONS The parties stipulated, and we find, that Laborers Local 210 and Plumbers Local 36 are labor organiza- tions within the meaning of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute is the installation of a complete water system, including lowering, leveling, aligning, and making of joints in connection with the Eastern Hills Mall, a shopping plaza under construction in Clarence, New York. This water system utilizes asbestos cement pipe. The laying of the water pipe system is commenced by the excavation of a ditch using a back hoe tractor, operated by employees represented by Operating Engineers. Engineers also grade the ditch and employees represented by Laborers Local 210 check the grade. Engineers then lay the pipe in the ditch and laborers assist them by hooking the pipe onto the hoisting device. Laborers next unhook the pipe, place a rubber gasket on the spigot end of the pipe, lubricate and clean the gasket, and place the spigot end into the bell end of the already laid or receiving pipe. The laborers then align the two pipes and slide the spigot into the gasket by means of a manual chain pulling device. After checking the gasket with a feeler gage, the laborers begin the backfill procedure by hand tamping or machine tamping the backfill. When sufficient com- paction is attained, the engineers use a bulldozer to complete the process. The whole operation is then repeated for the next length of pipe. While there are plumbing contractors working on the shopping plaza, the Employer employs no plumbers. B. Background and Facts of the Dispute On September 11, 1961, the CIEA signed a stipulation to be bound by the determinations of the National Joint Board for the Settlement of Jurisdic- tional Disputes, herein called the Joint Board. The Employer has been a member of the CIEA since July 21, 1969, but was never informed about the 1961 stipulation or of any relationship of the CIEA with the Joint Board. By virtue of its membership in the CIEA, 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer is party to the CIEA's current collec- tive-bargaming agreement with Laborers Local 210 effective from June 1, 1969, to May 31, 1972. While the previous contract between the CIEA and Laborers Local 210 provided for submission of jurisdictional disputes to the Joint Board; this, provision was specifically deleted from the current contract at the request of Laborers Local 210. Neither the CIEA nor the Employer is party to any collective-bargaining contracts with Plumbers Local 36. On August 3, 1970, representatives of the Employer, Laborers Local 210, and Plumbers Local 36 met at a prejob conference at which time representatives of both Unions claimed the work in question belonged to members of their respective locals. On August 4, 1970, the Employer sent a letter to Laborers Local 210 with a copy to Plumbers Local 36, stating that "Per area practice we are assigning the sanitary and the water loop to the Laborers." Performance of the disputed work herein began in mid-September 1970. Thereafter, the dispute was submitted to the Joint Board by Plumbers International. Plumbers Interna- tional and Laborers International participated in the Joint Board proceeding, but the CLEA and the Employer did not take part. On September 24, 1970, the Joint Board awarded the work to employees represented by Plumbers Local 36.1 No appeal was taken. The Employer was informed of the Joint Board award by a telephone call from a Mr. Carnivale, a representative of Plumbers International. Richard Conroy is head of the, Employer's Plumb- ing Division, and Steve Canarosa is the steward for Laborers Local 210. According to Conroy, Canarosa told Conroy early in October 1970 that "if we changed the job assignment there would be a strike and picketing." On December 31, 1970, Salvatore Bon- giovanni, business manager for Local 210, sent a telegram to the Employer stating that: "Please be advised that compliance on your part with either the decision of the National Joint Board contained in its letter of September 25th 1970 to you or compliance by you with any court order seeking to enforce the assignment contained in that letter will result immedi- ately in economic action including picketing and strike activity at the location of said work by Laborers Local 210." 2 On January 21, 1971, the Joint Board voted to find the Laborers International in noncompliance with its procedures as regards the Joint Board award in this jurisdictional dispute. On February 18, 1971, the CIEA sent a letter to the Joint Board stating that as the Joint Board to which the 1961 stipulation was directed ceased to exist on September 30, 1969, the CIEA considered that the stipulation became null and void on that date and that therefore the stipulation did not bind the Association to the newly constituted Joint Board. In this letter the CIEA also said that it had not signed any stipulation binding it to the currently constituted Joint Board. CIEA stated further that it is not bound by the current Joint Board unless such commitment is expressly included in any applicable collective-bargaining agreements and it specifically mentioned in this connection its contract with Laborers Local 210 as not providing for Joint Board participation by either the CIEA or its members. C. The Contentions of the Parties The CIEA and the Employer contend that the 1961 stipulation expired when the Joint Board was dis- solved on September 30, 1969, that they have not tendered a current stipulation to the newly constitut- ed Joint Board, and that their current contract with Laborers Local 210 does not provide for submission of jurisdictional disputes to the Joint Board. They assert, therefore, that no method exists for the voluntary settlement of the instant jurisdictional dispute to which all necessary parties are bound. In this regard, they also note that the Employer was, in any event, never advised of the 1961 stipulation until after the instant dispute arose . The CIEA and the Employer further contend that the Employer' s assign- ment of the disputed work was proper in light of certain factors usually considered by the Board in these matters. Laborers Local 210 makes these same arguments and in addition contends that it is not bound to the Joint Board simply because its International may be bound. It also argues that the Board should not recognize awards of the Joint Board as the Joint Board's plan and procedures are unfair and irregular to the basic trade unions. Plumbers Local 36 maintains that the Board has no jurisdiction over the matter as the CIEA, the Employer, and Laborers Local 210 are bound to the Joint Board. It contends that the CIEA and the Employer are bound to the Joint Board because of the 1961 stipulation, which it argues was not canceled by any change in the composition of the Joint Board or by reason of the current contract's deletion of the previous contract's reference to the Joint Board. In this regard, it also relies on the facet that the CIEA is I The Joint Board based its decision solely on a 1941 agreement Joint Board award and enjoin the continuing breach thereof. On March 10, between the Laborers International and the Plumbers International. 1971, Judge Henderson denied plaintiff's motion for preliminary injunction 2 On December 15, 1970, Plumbers Local 36 filed a Section 301 suit and stated he was holding any further action in abeyance pending this against Laborers Local 210, the Employer, and the CIEA in the United action before the National Labor Relations Board States District Court for the Western District of New York to enforce the LOCAL 210, LABORERS party to contracts with other unions calling for submission, of jurisdictional disputes to the- Joint Board. Plumbers Local 36 also argues that Laborers Local 210 is likewise bound to the Joint Board by virtue of its affiliation with Laborers International, which International is bound to the Joint Board and did in fact participate in the Joint Board proceeding concerning the instant jurisdictional dispute. Alterna- tively, Plumbers Local 36 contends that the disputed work should be assigned to employees represented by it on the basis of certain factors normally considered by the Board in making such assignments. 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 no agreed-upon method for the voluntary adjustment of the dispute. As set forth previously, it is undisputed that on two occasions Laborers Local 210 threatened to engage in picketing and strike activity, and that such threats were in support of Laborers Local 210's demand that the Employer not change the assignment of the disputed work from employees represented by Labor- ers Local 210 to employees represented by Plumbers Local 36. Accordingly, we find that reasonable cause exists to believe that Laborers Local 210's threats to picket and strike violated Section 8(b)(4)(D) of the Act. We also conclude, for the reasons set forth in Bricklayers, Masons and Plasterers' International Union of America, Local No. 1, AFL-CIO (Lembke Construction Company of Colorado, Inc.), 194 NLRB No. 98, that there exists no effective method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. However, assuming arguendo that the 1961 stipulation is still otherwise operative, we find that any general obliga- tion thereunder was superseded by the specific deletion in the current contract between the CIEA and Laborers Local 210 of the previous contract's reference to the Joint Board, particularly in light of the fact that the Employer was never informed of the 1961 CIEA obligation until after the instant dispute arose and the only contract with Laborers Local 210 to which the Employer has been a party contains no provision for submission of work disputes to the Joint Board.3 3 N.L R B. v. Plasterers Local Union No. 79, Operative Plasterers' and Cement Masons' International Association [Southwestern Construction Co ], 404 U S. 116 (December 6, 1971) 4 N.L.KB v. Radio & Television Broadcast Engineers Union, Local 1212, 657 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.4 The Board has held that its determination in a jurisdiction- al dispute is an act of judgment based on common sense and experience reached by balancing those factors involved in a particular case.5 The following factors are relevant in making the determination of the dispute before us: 1. Area practice The parties stipulated that there is no prevailing area practice with respect to assignment of the work in dispute. 2. Employer's assignment and past practice As stated, the Employer assigned the work of installing a complete water system, including lower- ing, leveling, aligning, and making of joints, to its employees represented by Laborers Local 210. The CIEA and the Employer presented evidence that this accords with the Employer's established practice. 3. Certification and collective-bargaining agreement 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. The Employer's contract with Laborers Local 210 provides that Laborers' jurisdiction shall include the following work: 9. TRENCHES, MANHOLES, HANDLING AND DISTRIBUTION OF PIPE, ETC: Cutting of streets and ways for laying of pipes, cables or conduits for all purposes; digging of trenches, manholes, etc.; handling and conveying all materi- als; concreting, backfilling, grading and resurfac- ing and all other labor connected therewith. Clearing and site preparation as described herein . ... Digging of trenches, ditches and manholes and the leveling, grading and other preparation prior to laying pipe or conduit for any purpose. Loading, unloading, sorting, stockpiling, wrap- ping, coating, treating, handling and distribution of water mains.. . . Handling, mixing, or pouring of concrete and the handling and placing of other materials for saddles, beds or foundations for the protection of pipes . . . . Back-filling and com- pacting of all ditches.. International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S 573. 5 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This provision would appear to cover the work involved herein. As mentioned previously, neither the CIEA nor the Employer has any contracts with Plumbers Local 36. Plumbers Local 36 contends that, as the contract between the Employer and Laborers Local 210 provides that where a decision of record or an agreement of record, or where a national agreement between the disputing trades applies, even though not an agreement of record, "the Employer shall assign the work in accordance with such agreement," the Employer should reassign the work to employees represented by it in accordance with a 1941 agreement between the parent organizations of the two labor organizations involved herein. This 1941 agreement was relied on by the Joint Board in making its award. As we have heretofore held, however, the precise meaning of the 1941 agreement is unclear in terms of its applicability to the kind of dispute here, and thus does not support Plumbers Local 36's claim that the disputed work should be assigned to it pursuant thereto.5 4. The Joint Board award Although, as indicated, supra, we do not consider the Joint Board award binding on the CIEA or the Employer, we do consider it a factor in determining the proper assignment of the work in dispute. However, as ,the Joint Board award was based solely on the 1941 agreement which we have previously found to be unclear in terms of its applicability to the instant dispute, we are of the opinion that the Joint Board award should not be given controlling weight. 5. Skill of the employees As mentioned above, the Employer has consistently assigned the disputed work to employees represented by Laborers and is satisfied with the skills and safety performance of these employees. The CIEA and the Employer adduced evidence that the disputed work is relatively unskilled work requiring no schooling or training nor_ the greater skills of plumbers. No plumbers' tools are used in performing the disputed work. 6. Efficiency and economy The Employer introduced evidence that, as the wage rate of Plumbers Local 36 is greater than that of Laborers Local 210, reassignment of the disputed work to employees represented by Plumbers Local 36 would probably increase the cost an additional $4 per linear foot, which would result in a total increased cost of $20,000. The Employer also adduced testimo- ny that greater efficiency and flexibility would be achieved by using laborers to perform the work in question since it was possible to reassign laborers to help other skilled trades when the disputed work is halted while plumbers could not be utilized to do other work. Moreover, as laborers have been also assigned by the Employer to install the sanitary sewer and storm pipe systems at the shopping plaza, depending on the need, one laborers' crew can be assigned to help another laborers' crew working on a different pipe system. Plumbers Local 36 disputes the Employer's in- creased cost estimate resulting from the use of plumbers rather than laborers, but adduced no testimony to counter the Employer's testimony in this regard. Conclusions Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's employees who are represented by Laborers Local 210 are entitled to the work in dispute. We reach this conclusion based upon the Employer's assignment of the disputed work to its employees represented by Laborers Local 210, the fact that the assignment is consistent with the Employer's past practice and its current bargaining agreement with Laborers Local 210, the fact that the employees represented by Laborers possess the requisite skills to perform the work, and the fact that such assignment will result in greater economy and efficiency of operations. Accordingly, we shall deter- mine the dispute before us by awarding the work in dispute at the Employer's Eastern Hills Mall project in Clarence, New York, to those employees represent- ed by Laborers Local 210, but not to that Union or its members. Our present determination is limited to the particular controversy which gave rise to this proceed- ing. 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 the dispute: Employees of The Edward J. DeBartolo Corpora- tion, who are represented by Local 210, Laborers International Union of North America, AFL-CIO, are entitled to perform the work of installing a complete water system, including lowering, leveling, 5 See Building and Construction Trades Council of Las Vegas (Charles J Dorfman), 173 NLRB 1339 LOCAL 210, LABORERS aligning, and making of joints in connection with the Eastern Hills Mall, a shopping plaza under construc- tion in Clarence, New York. MEMBER FANNING, concurring: I concur in the majority's decision that the Board should assert jurisdiction in this case and that the employees represented by the Laborers are entitled to the work in dispute. With respect to jurisdiction, however, I rely solely on the ground that the current 659 collective-bargaining agreement between the Labor- ers and CIEA of which the Employer is a member contains no provision requiring the Employer to be bound to decisions of the Joint Board in resolving jurisdictional disputes. See my dissenting opinion in Bricklayers, Masons and Plasterers' International Union of America, Local No. 1, AFL-CIO (Lembke Construction Company of Colorado, Inc.), 194 NLRB No. 98.