Local 388, United Association of Plumbers

National Labor Relations Board - Board Decisions

Apr 24, 1969

175 N.L.R.B. 540 (N.L.R.B. 1969)

540. 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-209
April 24, 1969
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN MCCULLOCH AND MEMBERS
,BROWN 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., on behalf of T. A.
Forsberg, Inc., herein called 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 Plumbers or Respondent,
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
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 Laborers. Pursuant to
notice, a hearing was held before Hearing Officer
Stephen L. Shochet on November 4, 20, 21, and 22
and December 2, 1968. 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 issue. Thereafter,
briefs were filed by the Charging Party, and the
Laborers' International Union on behalf of the
locals involved.' Respondent filed a motion to quash
the notice of hearing, a brief in support thereof and
on the merits. Thereafter, the National Labor
Relations Board issued a notice to the parties to
show cause why the record should not be opened for
receipt of certain evidence alleged by Respondent as
supportive of its motion to quash. The Charging
Party and the Laborers' International Union filed
responses thereto.
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 made by the
Hearing Officer at the hearing, and finds that they
'After transfer of the case to the National Labor Relations Board, the
Laborers ' International Union of North America , AFL-CIO, the parent
organization of the locals involved herein , filed a motion to intervene in the
proceeding for the limited purpose of submitting a brief. The motion to
intervene is hereby granted.
are free of prejudicial error. The rulings are hereby
affirmed. The Board has considered the briefs of the
parties and the entire record in this case, and hereby
makes the following findings:
1. THE BUSINESS OF THE COMPANY
T. A. Forsberg, Inc., is a Michigan corporation
which engages in underground and highway
construction work. The parties stipulated, and we
find , that T. A. Forsberg is engaged in interstate
commerce within the meaning of the Act.
Accordingly, we find that it will effectuate the
purposes of the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada , AFL-CIO, Plumbers Local 388,
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. The Background Facts
The Employer, in May 1968, entered into a
contract with the Okemos Board of Education in
Okemos, Michigan, calling for the installation of a
water main from Okemos Road to the Okemos
Junior High School. The contract called for the use
of cast iron for a distance of approximately 3,500
feet running parallel to Bennett Road. The
Employer's president testified that the pipe involved
had an 8-inch diameter, was 18 to 20 feet long, and
was to be placed together with an "0" ring joint.
This project involved the installation of
underground piping and conduits, having a
mechanical joint or slip joint construction, including
water main and sewer, from a point 5 feet from a
building line outwards. In the installation of the 8
inch cast iron water main, a trench is excavated to a
given line and grade. A cable is then hooked up to
the pipe and with the aid of a crane, guided into
place in the trench. At this point the making of the
joint commences. This is done by "soaping the
joint," cleaning the bell end to make sure it is free
of deleterious material. The bell end contains an
imbedded seal and the joint is made by the insertion
of the spigot end of one pipe into the bell end of the
other. The pipe is then pushed home to the
pre-machined and given stopping point. As the pipe
is joined, it is covered with a foot of sand and
compacted. The trench is then backfilled.
Some 2 to 3 weeks before the work began on the
project, Forsberg began to move its equipment onto
the jobsite. D. Griffith , Business Agent for
Plumbers, was informed of this fact by a steward on
175 NLRB No. 83
LOCAL 388, UNITED ASSOCIATION OF PLUMBERS 541
the job. Griffith requested that Forsberg assign the
work to members of Plumbers and asked Forsberg
to sign an agreement with the Plumbers. Forsberg
stated he "had always assigned this work to the
Laborers and had never used Plumbers on this type
of work before." Griffith stated he would talk to
Gilbert Rice, secretary for the Associated
Underground Contractors, the Employer's agent for
purposes of bargaining with Laborers' Local 1191.
The Employer, through the Association, is bound to
a collective-bargaining agreement with Laborers'
Local 1191 and it was pursuant to these agreements
that the work involved herein was assigned initially
to members of Local 1191. After this conversation
with Forsberg, Griffith informed Rice that the
installation of water mains in the jurisdiction of
Local 388 should be done by plumbers. Upon finally
being informed by Rice that plumbers were not to
be used on this job, Griffith stated, "This was going
to cause an awful lot of trouble."
On July 19, Forsberg's crew began work. The
crew was composed essentially of employees
supplied by Laborers' Local 1191, but some
members of Laborers' Local 998 were also utilized.
Forsberg testified that he was called to the jobsite
after the men started drilling holes, because they
had stopped. Upon arriving at the jobsite, Forsberg
saw Griffith. Upon being asked by Forsberg what
the problem was, Griffith replied, "This was
plumbers' work."
On July 22, the next day of work, Forsberg was
called to the jobsite again by his foreman, Mike
Kunik, who complained the plumbers were on the
job and were refusing to let the work continue
Forsberg found Griffith at the jobsite and suggested
that the two go to his [Forsberg's] office and see if
the problem could be settled. Upon arrival at the
office, Forsberg asked Griffith if there was
something that could be done which would result in
the removal of the pickets from the job Griffith
replied that all the Employer had to do was sign an
agreement with the Plumbers. Forsberg again
reminded Griffith that he had never used plumbers
for the type of work being done and that it had been
assigned to the laborers. As a compromise, however,
he was willing to put a couple of plumbers on the
job. Griffith stated that this was unacceptable and
that the Employer would have to sign a Plumbers'
agreement. The Employer said he saw no reason for
signing a Plumbers' agreement. Griffith further
stated if no plumbers were used on the job ". . . he
would make it tough for [Forsberg] in the Lansing
area in the future." On or about July 22,
Respondent erected a picket sign on the right-of-way
to the entrance of the school which read "Wages,
hours, and working conditions of T. A. Forsberg,
Inc. not equal to those negotiated in this area for
plumbers by Local 388."
After Griffith's appearance with the sign, all work
ceased on that day. The sign remained up until the
work was completed. During the week of July 22
through 26, no work was done on the site as the
operating engineers refused to cross the plumbers'
picket line.
On August 23, after resuming work on the
project, Forsberg was again informed by his
foreman that there was trouble on the jobsite. Upon
his arrival there, he found Griffith and pickets were
preventing pipe from being placed in the trenches.
After being asked by Forsberg, Griffith ordered the
men who had been sitting on the pipe to move.
Upon their compliance, the work continued.
B. The Work in Dispute
The work in dispute is limited to the unloading,
distribution, laying, and leveling of the pipe and the
making of the joints. Plumbers concedes the digging,
grading, leveling, backfilling and tamping is
properly assigned to laborers. Also all parties agree
that all pipe work within 5 feet from the building
line, inward, is the work of plumbers.
C. The Contentions of the Parties
Associated Underground Contractors, the
Charging Party, which filed charges on Forsberg's
behalf, contends that Respondent Plumbers violated
Section 8(b)(4)(D) of the Act by exerting coercive
pressures upon Forsberg to compel Forsberg's
assignment of the work in question to members of
the Plumbers. The Charging Party further contends
that the work was previously awarded to members
of Laborers' Local 1191; and that such work should
properly be awarded to the Laborers in view of (a)
area practice; (b) maintenance of a stable and
experienced work force; (c) considerations of
economy and efficiency and the history of the
bargaining relationship between the Laborers and
the Charging Party. Local 1191's position is
consistent with the position taken by the Charging
Party.
Respondent contends the facts herein do not make
out a prima facie case for reasonable cause to
believe that Section 8(b)(4)(D) has been violated. It
also contends the work in question should be
awarded to its members. Finally, it contends the
notice of hearing should be quashed. In this
connection, Plumbers argues that a voluntary
method for adjustment of the dispute exists since all
the parties are stipulated to the Joint Board, and
therefore the National Labor Relations Board is
precluded from proceeding with a determination of
the dispute.
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.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated above, Respondent contends that no
such reasonable cause exists We do not agree. As
hereinbefore set forth, Respondent has threatened
the Employer stating "there would be trouble" if the
work involved was not assigned to the Plumbers.
Additionally the record shows Respondent has
picketed the jobsite. The fact that the picket sign
was phrased in terms of advertising the fact that
wages, hours, and fringe benefits paid by Forsberg
were not equal to those negotiated in the area by the
Plumbers does not negate the existence of an object
on Respondent's part of forcing assignment of the
disputed pipe work to its members Thus, on the
basis of the entire record and the Respondent's
entire course of conduct, we conclude there is
reasonable cause for believing that a violation of
Section 8(b)(4)(D) has occurred
Plumbers also contends that all parties have
agreed to be bound by the jurisdiction of the Joint
Board. In the circumstances of this case, we
disagree. At the hearing, Plumbers joined all other
parties in stipulating that there was no agreed-upon
method for the resolution of the dispute.
Subsequently, however, Plumbers filed its motion to
quash, alleging that Forsberg was signatory to a
contract negotiated between Laborers' Local 998
and the Associated General Contractors which
included terms binding all signatory employers to
the Joint Board. Although testimony by Local 998's
business representative at the hearing indicated that
Forsberg did execute such an agreement, no such
contract bearing Forsberg's signature was
introduced in evidence, and testimony of the
business agent suggests that the alleged agreement
may not be available for production. Forsberg
denies ever signing that contract or any other
agreement binding it to the Joint Board
In these circumstances, and considering
particularly the question of credibility underlying
the contention that the Employer has submitted to
the Joint Board, we find that it would not
effectuate the policies underlying Sections 10(k)
and 8(b)(4)(D) for us to ignore the clear
stipulation made at the hearing by all parties,
including Plumbers, and to further defer
determination of the merits of the dispute.
Accordingly, we find that the instant dispute is
appropriate for resolution under Section 10(k) of
the Act.
On the basis of the entire record, 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
1. Certification and bargaining agreements
The evidence indicates there is no Board
certification relative to the disputed work
The Plumbers contends that an agreement
between the International Unions of the Plumbers
and Laborers made in 1941, favors an assignment of
the work in dispute to members of the Plumbers. It
is noted, however, that the precise meaning of the
agreement in terms of its applicability to the instant
dispute remains unclear and thus does not support
the claim of the Respondent that the disputed work
should be assigned to it pursuant thereto.'
The Plumbers also claims the work in dispute by
virtue of an agreement executed in 1964 between
itself and Local 998. However, the record shows
that Laborers' Local 1191 was not a party to that
agreement, and that laborers from both Locals 1191
and 998 have continued to perform the work at
times. Thus, aside from the exclusion of Local 1191
from that agreement even if a disclaimer were
proven, a disclaimer is not necessarily dispositive of
a jurisdictional dispute, especially where as here
members of the alleged disclaiming union continue
to perform the work.' Accordingly, we do not find
this interunion agreement favors awarding the work
to the Plumbers.
2. Company, industry and area practice
The record shows that Forsberg has never
assigned this type of work to plumbers, and that its
present assignment is consistent with its uniform
practice 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.
On the contrary, Forsberg testified that laborers
possess the necessary skills and have performed the
work 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 will perform. Thus,
assignment to plumbers of only the work claimed by
Plumbers would result in the fragmentation of the
job into separate operations. Accordingly, from the
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.'
'N L R B v Radio Television Broadcast Engineers Union Local 1212,
International Brotherhood of Electrical Workers ( Columbia Broadcasting
System), 364 U S 573
'Local 300 United Association (D'A nnunzio Bros Inc ), 152 NLRB 707
'Charles J Dorfman and Underground Engineering Contractors
Association , 173 NLRB No 208
LOCAL 388, UNITED ASSOCIATION OF PLUMBERS
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 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 assignment to
laborers is consistent with the past practice of the
Company and is not inconsistent with any otherwise
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. On the basis of the entire record,
therefore, we shall determine the existing
jurisdictional controversy by awarding to the
employees employed by the Company and
represented by the Laborers, rather than to
individuals represented by the Plumbers, the
installation of the water main. The present
determination is limited to the particular
controversary which gave rise to this proceeding.
543
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. Laborers employed by the Employer and
represented by Local 998 and Local 1191, Laborers'
International Union of North America , AFL-CIO,
are entitled to perform the tasks of laying and
installing underground piping and conduits including
water main and sewer main at the Okemos Junior
High School , Okemos Road, Okemos, Michigan
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 T.
A. Forsberg Inc. to assign the work 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
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, shall notify the
Regional Director for Region 7, in writing, whether
or not it will refrain from forcing or requiring T. A.
Forsberg , Inc., by means proscribed by Section
8(b)(4)(D ) to assign the work in dispute in a manner
inconsistent with the above determination.