Local 388 (Associated Underground Contractors)

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 456 (N.L.R.B. 1969)

456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 388, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada,
AFL-CIO and Associated Underground
Contractors, Inc. and Locals 998 and 1191,
Laborers' International Union of North America,
AFL-CIO. Case 7-CD-218
December 16, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following the filing of charges by Associated
Underground Contractors, Inc., herein called the
Charging Party, on behalf of the Eisenhour
Construction Company, Inc., herein called
Eisenhour or the Employer , alleging that Local 388,
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada , AFL-CIO , herein called
the Plumbers or the Respondent , has 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 the work in dispute
to the Plumbers rather than to employees
represented by Locals 998 and 1191 , Laborers'
International Union of North America , AFL-CIO,
herein called the Laborers . Pursuant to notice, a
hearing was held before Trial Examiner George
Turitz on April 24 , 1969, and reconvened before
Hearing Officer Stephen L. Shochet on June 16
through 20 , 1969. All parties appearing at the
hearing, 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 Charging Party and the
Respondent . The Respondent 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 Trial
Examiner and 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 case2 and hereby makes the
following findings:
' The Hearing Officer denied , but attached as a rejected exhibit, the
Respondent ' s offer of a written transcript of oral findings of fact
concerning the "Limited Agreement " here in issue, such findings being
made by Judge Fox of the U S District Court for the Western District of
Michigan in a Section 10(1) proceeding emerging from this dispute
1. THE BUSINESS OF THE EMPLOYER
Eisenhour is a Michigan corporation engaged in
the business of highway construction, including
preparatory work, and in the installation of various
kinds of utilities such as storm sewers, sanitary
sewers, water mains, and related work. During the
year 1968, Eisenhour had a gross volume of business
in excess of $500,000. During the same period of
time, Eisenhour purchased goods and materials from
points outside the State of Michigan with a value in
excess of $50,000, which goods were delivered to
jobsites within the State of Michigan directly from
points outside the State of Michigan. Additionally,
Eisenhour performed work outside the State of
Michigan valued in excess of $50,000. On the basis
of the foregoing, we find that Eisenhour is engaged
in commerce within the meaning of the Act, and
that it will effectuate the purposes of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Local
388, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada,
AFL-CIO, and Locals 998 and 1191, Laborers'
International Union of North America, AFL-CIO,
are labor organizations within the meaning of the
Act.
III. THE DISPUTE
A. Background
In 1965, Eisenhour entered into a contract with
Fine-Bilt Homes for the installation of certain
underground utilities, roads, site gradings and
excavation of basements at the East Knolls
Apartment complex in Lansing, Michigan. In
October 1965, Respondent Plumbers established a
picket line at the project, protesting that its
members were not employed by Eisenhour to install
a water main. The picketing halted the progress of
the job and Eisenhour was informed by Fine-Bilt
Homes to take whatever action was necessary to
have the pickets removed and the men returned to
work. John Eisenhour, president of Eisenhour,
sought out Doug Griffith, business representative of
Respondent Plumbers, and an agreement was
reached that on condition that Eisenhour employ
one plumber on the jobsite the pickets would be
Though the findings of the District Court are not dispositive of the issues
in the present proceeding, we admit the exhibit and take judicial notice of
the Court 's findings
'The parties stipulated that the entire record and decision, with minor
exceptions, in Local 388, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO and Associated Underground Contractors, Inc (T
A Forsberg. Inc ). 175 NLRB No 83, hereinafter referred to as T A
Forsberg. Inc , be considered as a part of the record in this case
180 NLRB No. 78
LOCAL 388 (ASSOCIATED UNDERGROUND CONTRACTORS)
removed. Griffith insisted on a written agreement as
a condition to furnishing a plumber, and after a
short conversation Eisenhour executed a document
entitled "Limited Agreement," which provided, inter
a/ia, that Eisenhour would abide by the 1941
Decision between the Internationals of the Plumbers
and the Laborers relative to the assignment of work.
After the East Knolls project was completed,
Eisenhour had no further contacts with Respondent
Plumbers or its representatives until October 22,
1968. The record reveals that during the intervening
3-year period Respondent Plumbers did not refer
any employees to Eisenhour, and the only plumber
ever employed by Eisenhour was on the East Knolls
project. The record also reveals that during the
3-year period from 1965 to 1968, Eisenhour did
perform work of the type here in dispute, using
laborers to perform the functions, but Respondent
Plumbers made no claim to the work under the
"Limited Agreement," or otherwise.
In the latter part of August 1968, Eisenhour was
awarded a contract by the Hannan Company, the
general contractor herein, to perform work on the
Meridian Mall Shopping Center, a complex of 6
buildings located in Lansing, Michigan. Eisenhour's
contract required it to lay a ten inch slip joint cast
iron trunk water main from the township water
main right-of-way to within approximately 35 feet of
the building and then loop the building with the line.
The installation of the laterals were let to another
contractor. The contract also required that
Eisenhour install storm sewers to drain the buildings
and the adjacent land. The storm sewers consisted of
two main drain lines running east-west, parallel to
the sides of the buildings, and lateral to the
buildings. The storm sewers were concrete and
vitrified pipe, with slip-joint construction, and the
size varied accordng to the site plans for 36 down to
12 inches. In addition, Eisenhour was required to
install laterals from the two mains to within 5 feet
of each building. The sanitary sewers were 8 inch
concrete, slip-joint pipe.
Eisenhour commenced work on the storm sewers
draining the parking lots at the Meridian Mall site
on October 10, 1968. This work was performed by
members of Laborers Local 1191. On the morning
of October 22, Eisenhour was informed that
plumbers employed at the site by other concerns had
failed to report for work, and it was requested that
he attend a meeting in the general contractor's field
office. At this meeting a representative of the
mechanical contractor on the project stated that
Griffith had requested a signed agreement that the
work of installing the water mains, storm and
sanitary sewers be performed by members of the
Plumbers-Griffith, who also attended the meeting,
stated that he did not remove the Plumbers because
"They know better than to work on a job when
somebody else is doing their work." Griffith
thereafter requested that the storm and sanitary
sewers and water mains be done by plumbers. Little
457
was accomplished at this meeting , and thereafter the
Employer filed unfair labor practice charges against
the Plumbers in Case 7-CC-476, with the result that
a settlement agreement was later entered.
On February 24, 1969 , Eisenhour began work on
the sanitary sewers at the Meridian Mall complex,
and on February 27, installation of the water mains
commenced . As was the case with the storm sewers,
the installation of the water mains and sanitary
sewers was assigned by Eisenhour to members of the
Laborers Union.
On the morning of March 3 , 1969, the
Respondent Plumbers engaged in picketing of the
Meridian Mall site with signs stating that
"Plumbers and Pipefitters Local No. 388 on strike
against Eisenhour Construction Company for breach
of contract on this job." As a result of the
picketing , work on the site was halted . Around noon
of the same day Eisenhour was notified by a
representative of the general contractor that if it
could not resolve the problem so that the other
trades could get back to work , then the Employer
would be ordered off the job . Later that afternoon
Eisenhour received a telegram from the general
contractor ordering it off the job. Shortly thereafter,
upon being informed that Eisenhour had been
ordered off the job , Respondent Plumbers withdrew
their pickets from the jobsite and construction on
the site was resumed . Eisenhour remained off the
jobsite until a Section 10 ( 1) injunction was obtained
on May 1, 1969.
B. The Work in Dispute
Consistent with the claim of the Charging Party,
we find that the work in dispute is located at
Meridian Mall and involves the handling, unloading,
distribution and installation of all water lines,
sanitary sewers and storm sewers having a
mechanical or slip joint construction from a point 5
feet from the building line outwards. Both
Respondent Plumbers and the Laborers claim that
the work in dispute is not limited by a point 5 feet
from a building line, but rather consists of all such
work from the building line itself. However, the
record indicates that employees represented by the
Plumbers were assigned the pipe work within 5 feet
of the building line without a contrary claim for
such work by the Laborers prior to the hearing
herein. Thus, as the disagreement over the work
within 5 feet of the building line was not part of the
dispute giving rise to this action, resolution of the
contrary claims to such work is not necessary to a
decision in this case.
C. Contentions of the Parties
Associated Underground Contractors, the
Charging Party, which filed charges on Eisenhour's
behalf, contends that Respondent Plumbers violated
Section 8 (b)(4)(D) of the Act by exerting coercive
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressures upon Eisenhour to compel Eisenhour's
assignment of the work in question to members of
the Plumbers. The Charging Party further contends
that pursuant to a collective- bargaining agreement
the work was previously awarded to members of
Laborers' Local 1191, and that such work should
properly be awarded to members of the Laborers in
view of ( a) area practice, (b) maintenance of a stable
and experienced work force, (c) considerations of
economy and efficiency, and (d) the history of the
bargaining relationship between the Laborers and
the Charging Party. The Laborers' position is
consistent with the position taken by the Charging
Party.
Respondent Plumbers contends that the facts
herein do not make out a prima facie case for
reasonable cause to believe that Section 8(b)(4)(D)
had been violated. It also contends that the work in
question should be awarded to its members . Finally,
it contends that the notice of hearing should be
quashed. In this connection, the Respondent argues
that a voluntary method for adjustment of the
dispute exists since both the Plumbers and the
Laborers are stipulated to the Joint Board, that it is
irrelevant that the Employer is not stipulated to the
Joint Board , and therefore the National Labor
Relations Board is precluded from proceeding with
a determination of the dispute.3
D. Applicability of the Statute
Before the Board may proceed with 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.
As indicated above, Respondent contends that no
such reasonable cause exists. We do not agree. As
previously stated, Respondent engaged in picketing
of the Meridian Mall jobsite, with the result that a
work stoppage occurred. Thereafter Respondent,
through its business agent Griffith, indicated that
the picket line was part and parcel of the Plumber's
dissatisfaction that laborers and not plumbers were
performing certain work at the site. Moreover, when
Eisenhour, who was employing the laborers, was
removed from the site the picket line was withdrawn
and work on the site began again . Although the
picket line which gave rise to the work stoppage was
phrased in terms of publicizing that Eisenhour had
allegedly breached a contract, this does not negate
the existence of an object on Respondent's part of
forcing assignment of the disputed work to its
members. Thus, on the basis of the entire record
'The Board has previously considered and rejected the contention that an
employer subjected to unfair labor practices proscribed by Section
8(bx4XD ) is not a necessary party to voluntary adjustment precedures
sufficient to preclude a determination under Section 10(k) of the Act.
Local 300, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the Unites States and Canada.
AFL-CIO and D'Annunzio Bros . Inc . 155 NLRB 836, 839-40.
and the Respondent's entire course of conduct,
including the finding that Respondent had previously
engaged in similar conduct in the Forsberg case,
supra, we conclude that there is reasonable cause for
believing that a violation of Section 8(b)(4)(D) has
occurred.
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.'
1. Certification and bargaining agreements
The Plumbers claim the work in dispute by virtue
of (1) an agreement between the International
Unions of the Plumbers and the Laborers made in
1941; (2) an agreement executed in 1964 between
itself and Laborers' Local 998; and (3) the "Limited
Agreement" signed in 1965 by the Employer and the
Plumbers. With respect to the first two contentions,
these exact contentions were made by the
Respondent and rejected by the Board in the
Forsberg case, supra footnote 2, and nothing has
been brought to the Board's attention in this action
which would warrant a different conclusion. Thus,
for the reasons given in the Forsberg case, we find
that neither of the two interunion agreements
referred to above favors awarding the work in
dispute to the Plumbers.
The Charging Party contends that the 1965
"Limited Agreement" between the Employer and
the Plumbers should be of no effect in this
proceeding for the following reasons: (1) the
agreement arose out of events akin to the instant
dispute, and was entered into solely to terminate the
East Knolls dispute in an expeditious manner which
would prevent Fine-Bilt Homes from suffering
serious financial loss; (2) the agreement was entitled
"Limited Agreement" because the parties intended
that its applicability be limited to the East Knolls
project; and (3 ) in the intervening 3 years since the
agreement was signed the Plumbers did not once
claim that the contract was applicable to work
beyond the East Knolls project, even though the
Employer employed Laborers to do similar work at
other projects during this time.
In substantial accord with the Charging Party, we
are of the opinion that the "Limited Agreement,"
and the events surrounding its creation and
subsequent application, render the meaning of the
agreement so ambiguous as to preclude reliance
upon it in determining our award of the work here
in dispute. Of particular significance is the record
testimony of Eisenhour, president of the Employer,
'N.L R.B. Y. Radio Television Broadcast Engineers Union Local 1212.
International Brotherhood of Electrical Workers (Columbia Broadcasting
System). 364 U.S. 573; International Association of Machinists. Lodge
No. 1743. AFL-CIO (J A. Jones Construction Company). 135 NLRB
1402, 1411
LOCAL 388 (ASSOCIATED UNDERGROUND CONTRACTORS)
and Griffith, Respondent's business agent. Eisenhour
testified that the Plumbers had not once in 3 years
attempted to apply the "Limited Agreement" to any
work done by the Employer; Griffith sought to
explain this non-application by claiming that he had
attempted to call Eisenhour a few times during the
3-year period but had been unable to reach him.
Thus, we find it difficult to adopt the interpretation
urged by Respondent Plumbers when their actions,
as well as the sense and title of the agreement,
indicate the contrary.5
2. Company, industry and area practice
The record shows that Eisenhour has only
assigned this type of work to plumbers in one
instance, that being the East Knolls apartment
project discussed above. Otherwise, Eisenhour has
uniformly assigned such work to laborers.
Accordingly, we find that this factor favors laborers.
Evidence as to industry and area practice is
inconclusive as the record indicates a mixed use of
both plumbers and laborers to perform work similar
in nature to that in dispute.
3. Skills and efficiency
There is no showing that the disputed work
requires a degree of skills not possessed by laborers.
The Plumbers introduced evidence concerning the
high degree of skill necessary to pass the Plumbers
apprenticeship program. However, Eisenhour and
other employers who have used laborers for this
type of work testified that laborers possess the
necessary skills, and Eisenhour testified that
laborers have performed the work here in question
satisfactorily. Additionally, the record shows that
while the Plumbers claim only the unloading and
distribution of the pipe, leveling, and the making of
the joint, the excavation and installation of the main
is a continuous operation, all of which laborers can
and are willing to perform. Thus, assignment to
plumbers of only the work claimed by Respondent
would result in the fragmentation of the job into
separate operations. Accordingly, from the point of
view of efficiency, these facts tend to favor an award
consistent with the Employer's assignment.
CONCLUSIONS
Having considered all pertinent factors we
conclude that employees represented by the
Laborers are entitled to perform the work in
dispute. Laborers are at least as skilled as plumbers
insofar as the disputed work is concerned, and the
Employer has been satisfied with the quality of their
work and resulting efficiency. Moreover, the
'We have considered the findings of the District Court, supra. fn I
However , as noted above , we do not believe the agreement here in question
is sufficiently unambiguous to be accorded weight as a factor in the award
of the disputed work.
459
assignment to laborers is consistent with the past
practice of the Employer and is not inconsistent
with any uniform area or industry practice. We
conclude on the basis of the entire record that the
Employer's assignment of work to the Laborers
should not be disturbed. Therefore, based upon the
entire record and after full consideration of all
relevant factors, we conclude that the employees
currently represented by the Laborers are entitled to
perform the work in dispute.
The work which gave rise to the dispute has
already been completed. The Charging Party
requests an award which would encompass the entire
jurisdictional boundary of Respondent Local 388.
The Respondent submits that the award should be
limited to the actual work which gave rise to this
dispute. The record indicates that this is not the first
dispute involving these parties over this type of
work. Indeed, the Forsberg case, supra, involves the
same Charging Party and Respondent, with only the
location of the work in dispute being different. In
the Forsberg case we gave a narrow award.
However, in light of that decision, coupled with the
testimony of Griffith that he will do "everything in
his power" to protect his jurisdiction in the future,
we believe that the circumstances indicate a
reasonable likelihood that this dispute will be
repeated. Therefore, we shall broaden our
determination accordingly.
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
case, the National Labor Relations Board makes the
following Determination of Dispute:
1. Employees represented by Locals 998 and 1191,
Laborers ' International Union of North America,
AFL-CIO, and employed by Associated
Underground Contractors, Inc., or its members, are
entitled to perform the work of handling , unloading,
distributing and installing of all water lines, sanitary
sewers and storm sewers having a mechanical or
slip-joint construction from a point 5 feet from the
building line outwards , in a geographical area
coextensive with the geographical jurisdiction of
Local 388, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada,
AFL-CIO.
2. Local 388, 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
Associated Underground Contractors , Inc., or its
members to assign the work of the type in dispute to
employees represented by the aforesaid Union.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Local 388, United
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association of Journeymen and Apprentices of the Associated Underground Contractors, Inc., or any
Plumbing and Pipefitting Industry of the United of its members including the Eisenhour Construction
States and Canada , AFL-CIO, shall notify the Company, Inc., by means proscribed by Section
Regional Director for Region 7, in writing , whether 8(b)(4)(D), to assign the work of the type in dispute
or not it will refrain from forcing or requiring in a manner inconsistent with the above determination.