Local 322, Plumbing And Pipefitting Industry

National Labor Relations Board - Board Decisions

Dec 12, 1972

200 N.L.R.B. 857 (N.L.R.B. 1972)

LOCAL 322, PLUMBING AND PIPEFITTING INDUSTRY
Local 322, United Association of Journeymen and
Apprentices of the Plumbing and Pipefittmg
Industry of the United States and Canada,
AFL-CIO' and Clifford Ellis, Incorporated and
Burlington Shopping Mall and Empire Construc-
tion Company and Laborers Local Union No 172,
affiliated with Laborers International Union of
North America, AFL-CIO. 2 Case 4-CD-294
December 12, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Clifford Ellis, Incorporated,
herein called Ellis, on July 20, 1972, alleging that
Local 322, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO,
herein called the Plumbers, had violated Section
8(b)(4)(D) of the Act by threatening, coercing, and
restraining Ellis with an object of forcing Ellis to
assign certain work to employees represented by the
Plumbers rather than to employees represented by
Laborers Local Union No 172, affiliated with
Laborers International Union of North America,
AFL-CIO, herein called Laborers
Pursuant to notice, a hearing was held before
Hearing Officer Harold Bernard, Jr, on September
6, 1972 The Plumbers, Ellis, and Laborers 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
Neither Burlington Shopping Mall nor Empire
Construction Company appeared at the hearing
although afforded full opportunity to do so There-
after, Plumbers, Ellis, and Laborers filed briefs in
support of their respective positions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed The Board has considered the briefs
of the parties and the entire record in this proceeding
and makes the following findings
1 The name of the party appears as amended at the hearing
2 The name of the party appears as amended at the hearing
I THE BUSINESS OF THE COMPANY
857
Clifford Ellis, Incorporated, a New Jersey corpora-
tion located at Cherry Hill, New Jersey, is engaged in
the business of road construction, excavation, drain-
age, and pipe laying In the past year it has
purchased more than $50,000 worth of materials and
equipment directly from outside the State of New
Jersey We find, in accord with the stipulation of the
parties, that Ellis is engaged in interstate commerce
and that it will effectuate the policies of the Act to
assert jurisdiction herein
II THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that the
Plumbers and the Laborers are labor organizations
within the meaning of Section 2(5) of the Act
III THE DISPUTE
A Background
Empire Construction Company, herein called
Empire, is the general contractor on the Burlington
Shopping Mall construction project On July 5,
1972,3 Empire subcontracted the installation of water
mains on the project to Ellis There was no
discussion of which craft or class of employees would
perform the work, but Ellis bid for the subcontract
on the assumption that it would assign the work to
laborers, in accord with its longstanding practice
Ellis assigned the work to five employees represent-
ed by the Laborers and in early July began installing
waterpipe from an adjacent road to the Mall
property On the morning of July 18, Ellis began
installing water delivery pipe on the Mall property
itself, where other construction was then underway
Certain employees who worked at the Mall and who
were represented by the Plumbers refused to contin-
ue working
About 10 o'clock that morning a Plumbers business
agent arrived at the site and discussed the work
stoppage with a Laborers business agent Each
representative then claimed the disputed work in
conversations with Ellis officials and the general
superintendent of Empire The Plumbers business
agent said that he wanted only plumbers putting in
the pipe and that if the Plumbers members did not
get the work it would picket the jobsite He then
passed placards to members of the Plumbers who
proceeded to picket Ellis immediately ceased work
on the mall property and did cleanup work on the
water main installation outside the mall property
After 2 or 3 days, Empire's general superintendent
3 All events occurred in 1972
200 NLRB No 123
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called Ellis and said an agreement had been reached
to use two plumbers and two laborers on the job
Ellis objected, but Empire insisted that two plumbers
be used, said it did not want a work stoppage, and
threatened to terminate the subcontract The next
day Ellis reported for work and found two plumbers
assigned to the job Ellis completed the project using
three employees represented by the Laborers and two
represented by the Plumbers
B Work in Dispute
The disputed work consists of the installation of
water mains on the premises of the Burlington
Shopping Mall at Burlington, New Jersey, and
involves the laying and joining of cast iron pipe and
the fitting of tees, caps, fire hydrants, valves, and
valve boxes Digging a trench for the pipe, refilling it,
and repacking the earth do not appear to be in
dispute
C Contention of the Parties
The Plumbers contends, in essence, that there is no
jurisdictional dispute in the traditional sense, but
that its actions were only attempts to preserve the
work of water main installation for its members who
had been promised the work by Empire, the general
contractor It argues that under the subcontract the
ultimate determination of job assignments rests with
Empire, which assigned the work to plumbers On
the merits the Plumbers argues that decisions under
the National Joint Board agreement, to which both
Internationals had been signatory, historically have
awarded the type of work in dispute to plumbers It
further contends that specialized knowledge and
expertise peculiar to plumbers was required for the
job
The Laborers contends that there is no Joint Board
decision involving the work in dispute, that neither
the Laborers nor Ellis was signatory to the Joint
Board agreement at the time of the dispute, and that
any such agreement had historically not been
followed in the area The Laborers further contends
that its members are more efficient and have the
requisite skills to safely complete the project, and
that Ellis assigned the work to its members in accord
with Ellis' collective-bargaining agreement, Ellis'
past practice, and the area and industry practice It
argues that Empire was satisfied with Ellis' assign-
ment of the work to laborers until the Plumbers
picketed, and that therefore, a jurisdictional dispute
exists
Ellis contends that the collective-bargaining agree-
ment, its past practice, area practice, and efficiency
favor awarding the disputed work to employees
represented by the Laborers
D Applicability of the Statute
Before the Board may proceed with a determina-
tion 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 there is no agreed-upon method for voluntary
adjustment of the dispute As to the latter, the parties
stipulated, and the record establishes, that there was
no agreed-upon method for settling the dispute
We reject the Plumbers' contention that the dispute
is not properly before us because Empire is the
Employer for work assignment purposes4 and has
assigned the work to plumbers As has been
indicated above, there is evidence that the Plumbers
picketed the jobsite and thereby threatened that it
would not supply anyone to work on the project
unless the disputed work was assigned to its
members Such threat clearly had an object pro,
scribed by Section 8(b)(4)(D) of the Act Ellis used
employees represented by Plumbers only when it was
forced to do so by Empire, which threatened to
cancel the subcontract with Ellis Empire had
awarded the subcontract to Ellis and did not object
to Ellis' use of laborers until the Plumbers had
picketed the jobsite At the time, the Plumbers did
not object to the subcontracting or demand that the
subcontract be terminated but insisted only that the
disputed work be performed by plumbers rather than
laborers Accordingly, Ellis rather than Empire was
the employer for work assignment purposes The
dispute was, thus, essentially over the assignment of
work to members of one rather than another trade,
craft, or class, and we find that there is reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred and that the dispute is properly before
the Board for determination
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 various relevant factors 5
1 Company assignment and practice
As set forth above, we reject the Plumbers
argument that Empire' s assignment of the disputed
work to plumbers should control Ellis is the
4 For this contention the Plumbers relies on the following clause other trades upon the Work
contained in Ellis subcontract To the end that Work may not be 5 N L R B v Radio and Television Broadcast Engineers Union Local
interrupted by labor disputes the Subcontractor shall employ only such 1212 International Brotherhood of Electrical Workers AFL-CIO (Columbia
labor as to the satisfaction of the Contractor will perform in harmony with Broadcasting System) 364 U S 573
LOCAL 322, PLUMBING AND PIPEFITTING INDUSTRY 859
employer for work assignment purposes, and the
record shows that Ellis has consistently used laborers
for the installation of water delivery pipe This factor
favors assignment of the work to laborers
2 Collective-bargaining agreements
There is no evidence indicating that a Board
certification covers the disputed work
The Plumbers introduced into the record its
standard collective-bargaining agreement containing
a work jurisdiction clause which would cover the
work in dispute However, the record shows that Ellis
is not signatory to the agreement, either on its own or
through a multiemployer association However, Ellis,
through its membership in the Associated General
Contractors of New Jersey, is party to a collective-
bargaining agreement with the Laborers The present
1971-74 agreement states in pertinent part
It is specifically understood that bargaining unit
work within the meaning of this Article and this
Agreement, includes any work performed in
connection with pipe or conduit of all kinds and
any description and for whatever purpose includ-
ing but not limited to, all work connected with the
loading, unloading, installation, distribution of
pipe or conduit of any kind or description
We are satisfied that this provision covers the work
in dispute Since Ellis, by virtue of its contract with
Laborers, has awarded the work in question to
laborers, we find that this factor favors awarding the
disputed work to laborers
successfully completed by laborers Ellis testified that
it had received no complaints about the quality of
water mains installed by laborers
From the point of view of efficiency, the overall
water main installation involves digging, grading,
and backfilling a trench As the Plumbers does not
claim jurisdiction over that part of the installation,
awarding the disputed work to employees represent-
ed by Plumbers would involve fragmentation of the
whole operation Additionally, the record shows that
laborers, if a labor dispute develops at a particular
site, could do cleanup work off the site, as indeed
Ellis did when the Plumbers picketed Thus, efficien-
cy of operation tends to favor an award to laborers
CONCLUSIONS
Upon the entire record, and after full consideration
of all relevant factors here involved, we believe that
employees represented by the Laborers are entitled
to perform the work in dispute This award is
supported by Ellis' assignment of the work to
employees represented by Laborers, the fact that
such assignment was consistent with Ellis' past
practice and labor contract, and the fact that such
assignment will permit a more efficient operation In
making this award, we are assigning the work to
employees represented by the Laborers rather than
to that organization itself or its members Our
present determination is limited to the particular
controversy which gave rise to this proceeding
DETERMINATION OF DISPUTE
3 Area and industry practice
Evidence introduced at the hearing concerning
area practice is inconclusive, as the record indicates
the use of both laborers and plumbers to perform
work similar to that in dispute The past decisions of
the National Joint Board concerning the type of
work in dispute does not show, as apparently
contended by the Plumbers, that area practice favors
assignment of the work to plumbers, especially since
such decisions were not regularly followed in the
area 6
4 Skills and efficiency of operation
Plumbers presented testimony that the work in
dispute was complex and that only plumbers,
because of their training, possess the necessary skills
for installing water delivery pipe, especially in
connecting reducers and valves and in testing for
leaks Ellis and the Laborers presented testimony
that the work involved is fairly simple and has been
6 At the hearing the parties stipulated that the National Joint Board has
never rendered a decision relative to this particular job and also that the
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute
I Employees represented by Laborers Local
Union No 172, affiliated with Laborers Internation-
al Union of North America, AFL-CIO, are entitled
to perform the work of installing the water mains on
the Burlington Shopping Mall project in Burlington,
New Jersey
2 Local 322, 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 Clifford
Ellis, Incorporated, to assign the above work to
employees represented by said Union
3 Within 10 days from the date of this Decision
and Determination of Dispute, Local 322, United
parties have not agreed to any voluntary method for resolving this dispute
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association of Journeymen and Apprentices of the will refrain from forcing or requiring Clifford Ellis,
Plumbing and Pipefitting Industry of the United Incorporated, by means proscribed by Section
States and Canada, AFL-CIO, shall notify the 8(b)(4)(D) of the Act, to assign the work in dispute in
Regional Director for Region 4, in writing, whether it a manner inconsistent with the above determination