Local 300, United Association of Journeymen, Etc.

National Labor Relations Board - Board Decisions

May 19, 1965

152 N.L.R.B. 707 (N.L.R.B. 1965)

LOCAL 300, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 707
sioned. The work of SLAC is pure basic research with increased
knowledge of the basic properties of matter its only foreseeable end
product.
Clearly, therefore, Woods Hole Oceanographic I, stitution,4 upon
which Petitioner relies, cannot be controlling. For, unlike the marine
research facility therein, SLAC is not performing research for the
Government under contract for specific research problems,5 there is no
showing that SLAC's activities are beneficial to private industry, there
is no evidence of any effect on national defense, and there is a clear
showing that SLAC's activities are important to the overall purposes
and program of a university with which it is connected.
More apposite, we believe, is University of Miami, Institute of
Marine Science Division,6 in which an oceanographic research center
was also involved. There we concluded that, although the facility was
substantially supported by the Federal Government, it was first and
foremost an educational institution for advanced study of oceanog-
raphy, and its research activities contributed directly to its curriculum
and program for the practical training of scientists in the field and,
therefore, it represented an integral aspect of the center's overall edu-
cational function.
So, too, here. The activities of SLAC are noncommercial in nature
and are intimately connected with the educational purposes and activi-
ties of Stanford University. As in the University of Miami case, we
shall dismiss the petition.'
[The Board dismissed the petitiion 8]
4143 NLRB 568.
5 That was virtually the only function of the employer in Woods Hole.
8146 NLRB 1448.
7 University of Miami, ibid.; Trustees of Columbia University, supra.
8 As indicated above, the Center is still under construction. Our decision herein is
necessarily based upon conditions and relationships existing at the present time or now
foreseeable.
Local 300, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO and D'Annunzio Bros., Inc. and Interna-
tional Hod Carriers , Building and Common Laborers Union of
America, AFL-CIO, Heavy and General Laborers Local No.
472. Case N. 22-CD-95. May 19,1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by D'Annunzio
Bros., Inc., herein called the Employer, alleging that Local 300, United
152 NLRB No. 70.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO,
herein called the Respondent, had violated Section 8(b) (4) (D) of
the Act by inducing or encouraging employees of the Employer to
cease work for the purpose of forcing or requiring the Employer to
assign certain work in dispute to members of the Respondent rather
than to employees who were represented by International Hod Car-
riers, Building and Common Laborers Union of America, AFL-CIO,
Heavy and General Laborers Local No. 472, herein called Laborers.
A hearing was held before Hearing Officer John P. Cooleen between
September 10 and 28, 1964. 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, the Respondent, the
Laborers, and the Association.
Upon the entire record in the case, the National Labor Relations
Board 2 makes the following findings :
1. The business of the Employer
D'Annunzio Bros., Inc., is a general contractor engaged in the busi-
ness of performing excavation, pipeline, and other construction work
in the building and construction industry in New Jersey. During the
past year the Employer made gross purchases of goods and services
valued at more than $50,000 which were furnished directly to it from
outside the State of New Jersey. We find that the Employer is
engaged in commerce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the purposes of the Act to assert
jurisdiction herein.
2. The labor organizations involved
The Respondent and the Laborers are labor organizations within the
meaning of Section 2(5) of the Act.
3. The dispute
a. The work in i$sue
The work in dispute is the unloading, handling, distribution, and
installation of reinforced concrete pipe, concrete lock joint, cast iron
pipe, and appurtenances used in the filtration and treatment of raw
'The New Jersey State Association of Pipe Trades , herein called the Association, an
organization composed of business agents representing Respondent 's sister local unions in
New Jersey, was permitted to intervene in this proceeding.
2 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Chairman McCulloch and
Members Fanning and Jenkins].
LOCAL 300, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 709
water to render it into a potable state, at the Raritan-Millstone Plant
Expansion, Elizabethtown Water Company, Bridgewater Township,
New Jersey.
b. The basic facts
The Employer, in December 1963, having recently completed a con-
tract (contract E) for the Elizabethtown Water Company at the Rari-
tan project by constructing a 600-foot water transmission pipeline
from the Raritan River to within a few hundred feet of a pumping
station, commenced work on two additional contracts awarded by the
same concern covering the disputed work. One of these (contract B)
called for continuation of the above pipeline to, and construction of,
a low-level pumping station. This pipeline has also been completed
without any jurisdictional dispute arising.
The remaining contract (contract A) called for construction of
certain (Sommer) filters, and laying the requisite piping. The part
of the piping which was to be installed underground and outside
building structures was assigned by the Employer to certain of its
employees, represented by the Laborers. No dispute arose as to another
part of the piping which was to be performed inside buildings; such
work was sublet to a plumbing subcontractor specializing in mechani-
cal plumbing work, Remsco Associates. The concrete work was sublet
to another subcontractor, Olsen and Lawson, Inc.
In early April 1964 Powers, Respondent's business manager,
appeared at the worksite and made an initial demand upon the
Employer's president, D'Annunzio, for the outside piping work being
performed under contract A. D'Annunzio replied that the Employer
"wouldn't go along with" this demand since it had been using laborers
to lay outside pipe in New Jersey for many years. Thereafter, on
April 14, 1964, Respondent through its international representative
submitted the dispute to the National Joint Board for Settlement of
Jurisdictional Disputes of the Building and Construction Trades
Department, AFL-CIO, herein called the Joint Board.
At the time of this submission, the Respondent had no contract with
the Employer. The Laborers did have a contract with the Employer,
recognizing that Union as the bargaining agent of all employees of
the Employer. This contract contained the following provision :
The Employer recognizes the Union as the sole and exclusive
Collective Bargaining Agent for all employees employed by the
Employer engaged in the excavation, foundation, highway, rock
drilling, blasting, sewers, railroad track, cold patch work, wrap-
ping and coating of all pipe, landscape work, power buggy and
duct line work, heavy and general construction work and other
work (in the State of New Jersey) as defined and fixed in the
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manual of Jurisdiction (Part I) of October 1961 of the Interna-
tional Hod Carriers' Building and Common Laborers' Union of
America, except to the extent that any work jurisdiction claimed
therein has been or shall be determined to be the work jurisdiction
of another union, either by decision of a jurisdictional dispute
board, or by any duly authorized competent agency, or by agree-
ment between unions or by any other legal means, but this shall
not preclude the Union from processing its claim for any such
work jurisdiction by any lawful means. In the event of a juris-
dictional dispute arising under this agreement, there shall be no
work stoppage, and the dispute shall be submitted for determina-
tion in any lawful manner provided for settlement of work juris-
dictional disputes, including but not limited to the Joint Jurisdic-
tional Dispute Board.
On April 23, 1964, the Joint Board, acting without the participation
of the Employer or the Laborers, rendered a decision concerning the
disputed work, and notified the Employer and the Laborers that it
had assigned the work to the Respondent. Powers then promptly
made a second demand for the work on the Employer, accompanied
by a strike threat. The Employer rejected the demand, emphasizing
that the costs of such a work assignment to plumbers could eventually
become prohibitive.
The parties to this proceeding have stipulated that following the
above events, on May 8, 1964, the Respondent commenced picketing
the entrance to the construction site with signs which read:
Notice to the Public : Unfair. D'Annunzio Bros. Inc.
refuses to comply with the decision of the National
Joint Board awarding this work to the Plumbers and
Pipefitters Local Union No. 300.
The parties further stipulated that the Respondent engaged in such
picketing with an object of forcing or requiring the Employer to
assign the disputed work to members of the Respondent rather than
to employees represented by the Laborers, and that during the picket-
ing employees of the Employer, Remsco Associates, Inc., and Olsen
and Lawson, Inc., were employed at the aforementioned construction
project, although not necessarily on the disputed work. The picketing
continued until June 3, 1964, when it was voluntarily discontinued by
the Respondent upon notification that a notice of hearing pursuant to
Section 10(k) of the Act would be issued with regard to the dispute.
c. Contentions of the parties
The Respondent declined to participate in the Section 10(k) hear-
ing, contending that the parties to the instant dispute had agreed upon
LOCAL 300, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 711
methods for its voluntary adjustment, and that in such circumstances
the Board was not empowered to conduct this Section 10(k) hearing.
The supporting argument was, first, that the Employer was not a
party to the present dispute within the meaning of Section 10(k) ;
that the only parties to the dispute were the Respondent and the
Laborers; and that they, as members of the Building Trades Depart-
ment of the AFL-CIO, had agreed to Joint Board jurisdiction to
adjust the dispute. Respondent next argues that in any event the
Employer also had agreed upon methods for the voluntary adjustment
of the dispute, including determination by the Joint Board, which then
assigned the disputed work to Respondent; and that such agreement
and assignment are dispositive of the present dispute. In its brief
Respondent also adopts the argument noted below by the Association
to the effect that the Board, if it does assign the disputed work, should,
upon a consideration of all relevant factors disclosed by the evidence,
assign the work to Respondent's members.
The Association contends that the disputed work should be assigned
to the Respondent under existing area and industry practice, and
because plumbers possess greater competence to perform such work
in view of their comprehensive 5-year apprenticeship training pro-
gram and more extensive pipelaying experience.
The Laborers, as stated, declined to participate in the Joint Board
proceeding, or to submit a position to that Board with respect to the
disputed work because the Employer had not stipulated to be bound
by any decision that the Joint Board might render. It contends that
the disputed work was properly assigned to employees it represents
in view of its collective-bargaining agreement with the Employer, the
assignment of work to said employees by the Employer, area and
industry practice, and its proven competence for the task resulting
from broad experience laying outside pipe over a period of many years.
The Laborers further assert that the Section 10(k) hearing was a
properly authorized proceeding since all parties to the dispute, specifi-
cally the Employer, have not agreed to any voluntary method for the
adjustment of the dispute.
The Employer is in agreement with the Laborers' position, and fur-
ther contends that it has never employed plumbers on outside pipe-
laying work, or consented to be bound by the Joint Board's decision
concerning the disputed work.
d. Applicability of the statute
The charge, which was duly investigated by the Regional Director,
alleges a violation of Section 8 (b) (4) (D) of the Act. The Regional
Director was satisfied upon the basis of such investigation that there
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was reasonable cause to believe that a violation had been committed,
and directed that a hearing be held in accordance with Section 10(k)
of the Act.
The Respondent argues that the jurisdiction of the Joint Board, and
its action on April 23,1964, in assigning the disputed work to plumbers,
should be dispositive of this jurisdictional dispute. Whether this is
so depends upon whether the parties to the dispute had agreed on this
method for the voluntary adjustment of the dispute. We turn, there-
fore, to the jurisdictional dispute provision of the Employer-Laborers
contract in effect on April 14, when the Respondent sought to have
the Joint Board resolve the present dispute in a manner binding upon
the Employer and the Laborers.3 The contract provided that the
Employer recognized the Laborers as the exclusive collective-bargain-
ing agent for its employees, with an exception not here relevant (it
excepted those employees of the Employer performing any work,
claimed in the Laborers' October 1961 Manual of Jurisdiction, which
". . . has been or shall be determined to be the work jurisdiction of
another union"). The contract further provided that in the event of
a jurisdictional dispute "arising under this agreement," there would
be no work stoppage, and the dispute would be "submitted for deter-
mination in any lawful manner provided for settlement of work juris-
dictional disputes, including but not limited to the Joint Jurisdictional
Dispute Board." [Emphasis supplied.] In our opinion the above
provision constitutes at most an agreement by the contracting parties
to settle their jurisdictional disputes peacefully, but does not consti-
tute a firm agreement to submit them for Joint Board determination.'
Moreover, the provision is limited to those disputes raised by the
Laborers under the agreement, and applies only to work which the
Employer, in alleged violation of the agreement, assigned to another
union. The work claimed by the Respondent, however, did not involve
such a dispute, and in our opinion was not therefore a jurisdictional
dispute within the meaning of the agreement between the Employer
and the Laborers, or a dispute which arose under that agreement. We
therefore find that the present dispute, which the Respondent referred
to the Joint Board for decision, is not a jurisdictional dispute which
the Employer agreed to submit to voluntary adjustment by the Joint
Board.
3 The contract was subsequently amended by the parties to eliminate any possibility of
an interpretation that they were agreeing to the jurisdiction of the Joint Board
* We here reach the same conclusion concerning the meaning of this jurisdictional
dispute provision as we did in a recent case where we considered identical language.
Local 69, United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO (Bellezza Company, Inc.),
149 NLRB 599.
LOCAL 300, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 713
We find no merit in the Respondent's further contention that, the
Employer is not a party to the present dispute, and that it is there fore
of no significance that the Employer has not agreed upon the Joint
Board as a method for the voluntary adjustment of the dispute' We,
however, consider the joint Board's action as a relevant, although not
a controlling, factor in making our determination of this dispute.
e. Merits of the dispute
Section 10(k) of the Act requires the Board to make an affirmative
award of the disputed work, after giving due consideration to the
various relevant factors disclosed by the evidence. The following
factors are asserted in support of the claims of the parties herein :
(1) Collective-bargaining agreements
During the entire period involved herein, and for several years pre-
viously, the Employer has had collective-bargaining agreements rec-
ognizing the Laborers as the sole and exclusive collective-bargaining
agent of the Employer's employees, including those engaged in out-
side pipelaying work. During the same time the Employer has had
no collective agreement with the Respondent. Moreover, the Respond-
ent has made no claim to be recognized as the bargaining agent. of any
of the Employer's employees. Nor has the Respondent been certified
by the Board to represent any of the Employer's employees.
(2) Employer assignment of the disputed work
Pursuant to its current agreement the Employer assigned the dis-
puted work to its own employees, who are represented by the Laborers,
and they commenced its performance in late December 1963.
(3) Jurisdictional agreements
The parties stipulated into evidence a memorandum of agreement
dated January 23, 1941, between the parent International Unions of
the Laborers and the Respondent, together with a memorandum of
clarification of that basic document executed several years later. As
the Board has recently noted, however, the precise meaning of this
"agreement," even with the benefit of the "clarification" and the inter-
pretations placed upon these documents by these unions from time to
time, remains unclear, and thus does not support the claim of Respond-
ent that the disputed work should be assigned to it pursuant thereto s
5 Bellezza Company , Inc, supra.
B Local 5, United Association of Journeymen and Apprentices of the Plumbing and
Pipehtting Industry of the United States and Canada, AFL-CIO (Arthur Venneri Com-
pany ), 145 NLRB 1580 , 1590-1595.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) Skills, tools, equipment, and apprenticeship programs
The evidence shows that laborers employed by the Respondent have
been performing the disputed work, for the most part with handtools
such as picks and shovels. They maintain the proper level of trenches
and pipes under the supervision of a qualified civil engineer who
establishes the requisite grading. No question has been raised con-
cerning their competence to perform such work in a satisfactory
manner.
The record also shows that elsewhere in the area plumbers perform
similar work, generally with handtools, under the supervision of a
qualified civil engineer, and in addition may use welding and other
metal-working equipment where pipe joints require such a connection.
They are trained under a 5-year apprenticeship training program
which requires regular attendance and extensive job training dealing
with all types of plumbing problems.
(5) Area and industry practice
Evidence was produced by the Respondent tending to show that the
type of work in dispute, the installation of underground pipe outside
building structures, has been contracted for by plumbing (mechani-
cal) contractors in the area of the Raritan project, and that such con-
tractors use only plumbers to perform such work. The Employer, on
the other hand, produced evidence showing that it had in fact per-
formed construction work on projects of a character similar to the
Raritan project in such area for a period of several years, that it had
a contract with and has used employees represented by the Laborers
on all these projects, that their work had always been satisfactory,
and that the Respondent had made no objection. Further, the
Employer has not had a contract with or utilized plumbers on any of
the aforementioned projects. The evidence as to area or industry prac-
tice is thus conflicting . It is evident that the present assignment of
the disputed work to the Employer's laborers does accord with the
Employer's past practice in performing outside pipelaying construc-
tion work in the area of the Raritan project.
(6) Efficiency of operation
The Respondent has produced evidence concerning its 5-year appren-
ticeship program and urges that plumbers and pipefitters possess
greater competence for installing integral parts of a water supply
filtration system. This evidence did not show that performance of
the disputed work would require the many skills imparted during a
plumber's apprenticeship training, or that the Laborers were not fully
qualified to accomplish the disputed work in a competent manner. It
LOCAL 300, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 715
is apparent that both the Laborers and the Respondent have members
who can perform the disputed work satisfactorily, and that its assign-
ment by the Employer to laborers is not inconsistent with efficiency
of operation.
CONCLUSION AS TO THE MERITS OF TIIE DISPUTE
Upon consideration of all the evidence in this proceeding, we shall
assign the disputed work to the Employer's laborers. It is here evident
that the laborers have performed the disputed work to the satisfaction
of the Employer, and that they are as skilled in the performance of
that work as tho plumbers in whose behalf Respondent demands it.
The Employer's present assignment of the disputed work is consistent
with its past practice in the area and its contract with the Laborers.
To divide the work in dispute into separate operations in which labor-
ers would prepare the ditch for reception of the pipe and the Employer
would hire plumbers to install it is not as efficient an operation as the
present procedure whereby laborers accomplish the integrated task of
preparing the ditch and laying the pipe in one sequential operation.
The Joint Board's contrary award, which was made without the par-
ticipation of the Employer, discloses no rational basis which is per-
suasive to us on the merits.
Our dissenting colleague would award the disputed work to "plumb-
ers represented by Respondent," on the basis of their alleged superior
skill to perform such work, the alleged area practice, and the Joint
Board's award. But, as we have found above, the Employer has no
plumbers on its payroll, and does not recognize the Respondent. The
dissent would thus require the Employer to hire the Respondent's
plumbers to do the disputed work.7 Our colleague would base his
award principally on what he regards as the area practice of a different
type of employer; namely, plumbing or mechanical contractors. But
that area practice is contrary to one of many years' duration followed
by the Employer, a general or utility contractor-a practice which the
Respondent had acquiesced in until April 1964.
We have not considered the Joint Board's award to the Respondent
persuasive, not only because it discloses no rational supporting basis,
but also because of the ex parte nature of the proceeding upon which
that award is based. Nor are we persuaded by the trade, skill, and
efficiency factors cited by our colleague, since even Respondent's exhib-
its reflect that the principal part of the disputed work was installing
pipe of the reinforced concrete lock joint type (of large diameter)
which is joined by grouting, not by a plumber's skill of metallic
welding.
7 We note that the Employer assigned other work involving the installation of piping
inside building structures to a plumbing subcontractor . There was no dispute over
this work.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall determine the instant jurisdictional dispute
by deciding that laborers, rather than plumbers, are entitled to the
work in dispute. In making this determination, we are assigning the
work to the employees who are represented by the Laborers, but not
to that Union or its members.
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.
1. The laborers employed by D'Annunzio Bros., Inc., who are repre-
sented by International Hod Carriers, Building and Common Laborers
Union of America, AFL-CIO, Heavy and General Laborers Local
No. 472, are entitled to perform the disputed work of unloading, han-
dling, distributing, and installing reinforced concrete pipe, concrete
lock joint, cast-iron pipe, and appurtenances used in the filtration and
treatment of raw water to render it into a potable state, in connection
with the Raritan-Millstone Plant Expansion, Elizabethtown Water
Company, Bridgewater Township, New Jersey.
2. Local 300, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting 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 the Employer to assign the
above-described work to plumbers.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local 300, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO, shall notify the Regional Director for Region
22, in writing, whether it will or will not refrain from forcing or
requiring the Employer, by means proscribed by Section 8 (b) (4) (D)
of the Act, to assign the work in dispute to plumbers rather than
laborers.
MEMBER FANNING, dissenting :
I would award the disputed work to plumbers represented by
Respondent on the basis of the area practice supporting their claim
for the work, the superior skills of such employees, Respondent's estab-
lished apprenticeship program, and the Joint Board giving the specific
work in the instant case to plumbers. Of the various factors relied
upon by the majority to sustain its award to the laborers, a careful
examination of the record reveals that, in fact, only the assignment
and practice of the Employer support that award.
The majority's discussion of the evidence pertaining to area prac-
tice, which it finds "conflicting," confuses that factor with the past
LOCAL 300, UNITED ASSOCIATION OF JOURNEYMEN, ETC. 717
practice of the Employer. It is there noted, for example, that Respond-
ent produced evidence demonstrating that mechanical contractors in
the area have used only plumbers to perform the type of work here in
dispute. The only contrary evidence mentioned, and indeed the only
such evidence in the record, is that of this Employer. While this latter
evidence certainly may prove that its own past practice favors the
laborers, I fail to see what bearing it has on the general area practice
of other employers engaged in such work. Clifford Elling, a mechani-
cal contractor engaged in plumbing, heating, and air-conditioning
work for approximately 14 years, testified on Respondent's behalf
that, in the six-county area in which he customarily works (which
includes a large portion of Respondent's jurisdiction), the laying,
installing, and joining of pipe is performed for him only by plumbers
represented by Respondent. He added that almost all other mechani-
cal contractors 8 in this general area follow the same practice. This
unrefuted testimony concerning the general practice in the area, which
is corroborated by Respondent's Business Agent Powers, is thus not
conflicting at all, and compels a finding that the standard of area prac-
tice supports Respondent's claim for the work.
In its evaluation of other factors, the majority finds that the stand-
ard of skills favors neither party, and that efficiency of operations
supports the laborers. I do not consider that the record upholds either
finding. First, while the Employer has been satisfied with his use of
laborers in doing this work in the past, certain aspects of the work
involved clearly require the use of specialized skills not possessed by
these employees. Joseph D 'Annunzio, himself, admitted that on cer-
tain occasions the welding of joints on pipe which has been laid in the
open trench had to be turned over to other employees who possessed
welding skills. In one such case, the employees who ultimately per-
formed the necessary welding were plumbers represented by Respond-
ent. This welding, or joining, of pipe is a basic part of the plumbers'
trade and skills, developed through the 5-year apprenticeship program
operated by the Respondent.9 Similarly, although the digging of the
trench (which is not claimed by Respondent) is done by laborers, they
must be directed, sometimes by plumber foremen, as to the proper
elevation of the ditch. This direction is also a part of the skill and
trade of plumbers, acquired through the apprenticeship program. In
view of this evidence, I would hold that the trade skills utilized in the
8 Since we are concerned with the area practice as to the specific type of work here
in dispute , the majority's emphasis on the nature of the contractors performing that
work seems to me an extraneous consideration.
O The majority mentions this apprenticeship program, but attaches no significance to it
or to the absence of any training program for laborers . In accordance with established
precedent , I believe that it is entitled to consideration as a separate factor favoring
Respondent . United Brotherhood of Carpenters and Joiners of America , AFL-CIO (0. R.
Karst), 139 NLRB 591 , 596-597.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
performance of the disputed work favors Respondent. Additionally,
I believe that this evidence destroys the validity of the majority's con-
clusion that the efficiency standard favors the Laborers. The Laborers
contends that the evidence does not show that laborers were not "fully
qualified to accomplish the disputed work." As indicated above, how-
ever, the record reveals that at least some of the work required plumb-
ers' skills, acquired through their apprenticeship program. And, to
the extent that it shows that other individuals must direct, and some-
times replace, laborers in the performance of certain aspects of the
disputed work, it thereby detracts from the majority's description of
the work when performed by laborers as an "integrated" operation.
Nor will the majority's finding that the collective-bargaining agree-
ment between the Employer and the Laborers favors the latter with-
stand scrutiny. The recognition language of that agreement, supra,
includes all work specifically set forth there, as well as that contained
in the Laborers' Manual of Jurisdiction, but then states an exception
to all such work. This exception reads as follows :
except to the extent that any work jurisdiction claimed therein
has been or shall be determined to be the work jurisdiction of
another union, either by decision of a jurisdictional dispute board,
or by any duly authorized competent agency, or by agreement
between unions or by any other legal means, .. .
In the instant case, the Joint Board-to which both unions are bound
as members of the Building and Construction Trades Department of
the AFL-CIO-"determined" that the work "claimed" by the Labor-
ers belonged to "another union," i.e., Respondent. Thus, by virtue of
the language of the very agreement which the majority says favors
the Laborers, together with the action of the Joint Board in award-
ing the disputed work to Respondent, that work was removed from
the coverage of the agreement. Therefore, I do not see how that
agreement supports the claim of the Laborers.
In this regard, I would assign specific, although not controlling,
weight to the award of the Joint Board. Assuming, arguendo, that,
for the reasons expressed by the majority, the Employer was not
bound by the decision of the Joint Board, its award is still entitled
to evidentiary consideration bearing on the merits of the dispute
before us.10 The majority's statement, that its award "discloses no
10 The relevance of this factor was recognized as early as International Association of
Machinists, Lodge No. 1743 (J. A. Jones Construction Company), 135 NLRB 1402, 1410-
1411. And, if the majority's description of the proceeding before the Joint Board as "ex
parte" in nature rests upon the refusal of the Laborers to participate therein, after having
been invited to do so, it is strikingly inaccurate . An ex parte proceeding has long been
recognized as one in which an affected party did not participate because of the absence
of notice to him "It would not be called ' ex parte' if be had proper notice of it, and
chose not to appear to oppose it." Black's Law Dictionary ( 4th ed. 1951 ), p. 662.
See also, Local 130, International Union of Electrical, Radio and Machine Workers v.
McCulloch, 58 LRR11 2699 , (C.A.D C ).
LOVEMAN, JOSEPH & LOEB DIVISION, ETC. 719
rational basis which is persuasive to us on the merits," should not
end our evaluation of this factor. While the Joint Board's award
does not specify the criteria upon which it is founded, the standards
it uses are a matter of public information and of record evidence
herein. The Procedural Rules and Regulations of that body state
quite clearly that its job decisions shall be based upon either estab-
lished trade practice or area practice, both of which are valid tests
in our own determinations and both of which I believe favor
Respondent."
As noted previously, I would find that the only factors supporting
the Laborers are those of the Employer's assignment herein and its
like assignment in the past. These, alone, should not be sufficient to
sustain an award under Section 10(k), a fact earlier recognized by
the Board in a significant decision examining the Supreme Court's
directive in the CBS case.12 Local Union No. 68, Wood, Wire and
Metal Lathers International Union, AFL-CIO (Acoustics d Spe-
cialties, Inc.), 142 NLRB 1073, 1079, at footnote 4. For the foregoing
reasons, I would assign the work in dispute to plumbers represented
by Respondent.
n In a related manner, the Board may now conclude as it declined to do in Venneri,
supra ( in which I dissented ) which involved a dispute between the same Internationals
over the same type of work, that the general jurisdictional grant conferred upon Re-
spondent in its AFL charter supports its claim to such work. There, after tracing the
long history of conflict between the two Unions, the majority concluded as follows:
The total picture of these old events, now vague in memory , ambiguous in many
instances , and frequently inconsistent , sheds no clear light as to what the official
position of the AFL-CIO might be today respecting the limits of the two competing
work claims . The specific work dispute which gave rise to this proceeding has not
been considered by the . . . Joint Board . . . . [ Emphasis supplied .] 145 NLRB
1580, at 1591.
Here, the Joint Board has made such a decision , which supports Respondent 's jurisdic-
tional claim to the work in dispute both here and in Venneri.
2N.L.R.B. v. Radio & Television Broadcast Engineers Union Local 1212, etc., 364
U.S. 573.
Loveman, Joseph & Loeb Division of City Stores Company, Inc.
and United Wholesale and Warehouse Employees Union, Local
261, AFL-CIO, Petitioner. Case No. 10-RC-6136. May 19,1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
H. Carlton Bryan, Jr. The Hearing Officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
152 NLRB No. 72.