Local 69, United Assn., Etc., Plumbing, Etc.

National Labor Relations Board - Board Decisions

Nov 9, 1964

149 N.L.R.B. 599 (N.L.R.B. 1964)

LOCAL 69, UNITED ASSN., ETC., PLUMBING, ETC. 599
Local 69, United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO and Bellezza Company, Inc. and Local
472, International Hod Carriers, Building and Common La-
borers Union of America , AFL-CIO. Case No. 22-CD-93. No-
vember 9, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10 (k) of the Act, following a
-charge filed by Bellezza Company, Inc., herein called the Company,
alleging that Local 69, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, herein called the Respondent or
Local 69, had violated Section 8(b) (4) (D) of the Act by inducing
or encouraging employees of the Company to cease work for the
purpose of forcing or requiring the Company to assign the work in
dispute to employees who are members of the Respondent rather than
to employees who are represented by International Hod Carriers,
Building and Common Laborers Union of America, Heavy and
General Laborers Local 472 of the State of New Jersey, AFL-CIO,
herein called Laborers. A hearing was held before Hearing Officer
Robert T. Snyder between May 11 and June 12, 1964. All parties
appeared at the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to adduce evi-
dence bearing on the issues. Thereafter, briefs were filed by the
Company, the Respondent, and the Laborers.
Upon the entire record in the case, the Board 1 makes the follow-
ing findings :
1. The business of the Employer
Bellezza Company, Inc., is engaged in the business of performing
general excavation, sewer paving, and other construction work in
the building and construction industry throughout New Jersey.
During the past year, the Company performed construction services
valued at more than $50,000 for the city of Jersey City, New Jersey,
which is constructing a general maintenance facility and garage at
the cost of more than $3,000;000, of which more than $1,000,000 was
derived from a grant by the Federal Government pursuant to its
Home and Housing Finance Administration program. The Com-
pany is the recipient of a prime contract in connection with this
construction in the amount of $715,645. We find that the Employer
'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 Leedom and Brown].
149 NLRB No. 64.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is engaged in commerce within the meaning. of Section 2(6) and (7)
of the Act and that it will effectuate the policies 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 issue
The work in dispute is the installation of nonmetallic outside
sanitary and storm sewers (exclusive of reinforced concrete sewers
measuring 96 inches in diameter) as part of the site development
project at the Jersey City worksite.
b. The basic facts
The Company, one of six prime contractors engaged in the erec-
tion of a shop and administration building on the project, was
awarded the contract for site development, which calls for the con-
struction of service roads, paving and landscaping portions of the
site, and the installation of cement pipe storm drain and sanitary
sewer lines. The Company commenced pipe installation at the site in
December 1963, assigning all of such work to employees represented
by the Laborers. In the latter part of February 1964, Zampella,
Respondent's business manager, appeared at the site four or five
times and demanded of the Company the work of unloading, han-
dling, and installing storm and sanitary sewers and all laterals from
the main sewer line. On March 20, 1964, the National Joint Board
for Settlement of Jurisdictional Disputes of the Building and Con-
struction Trades Department, AFL-CIO, acting upon the Respond-
ent's unilateral submission of the instant dispute, awarded to the
plumbers and steamfitters the work of "Unloading, handling, dis-
tributing and installing cast iron pipe used for sanitary sewer and
also reinforced concrete pipe laterals from the interceptor line to
the building picking up the rain leaders...."
In the interval between the award of the contract to the Com-
pany and the initiation of pipe installation, the specifications in
the contract were amended by a change order which substituted
asbestos cement pipe for the cast iron pipe required in the original
specifications. Respondent has continued its demand for the installa-
tion of this pipe despite the change in its composition. -But, after
the Joint Board's award, which explicitly excepted such pipe from
its scope, Respondent did not demand installation of reinforced
LOCAL 69, UNITED ASSN., ETC., PLUMBING, ETC. 601
concrete sewers measuring 96 inches in diameter. Installation of
pipe commenced in December 1963. On April 1, 1964, at a meeting
among representatives of the Company, Respondent, and Jersey
City officials, Respondent persisted in its demand for the disputed
work and the Company continued to reject the demand. On April 3,
1964, a single picket began patrolling the two entrance gates to
the site with signs reading "Local 69, Plumbers on strike against
'Bellezza Company-no other trades involved." On Monday, April 6,
a meeting among the disputants and Jersey City officials was held
at the Jersey City hall at which Zampella reiterated Respond-
ent's demand for the installation of all sewer pipe, with the exception
of 96-inch concrete pipe, and the company president, Bellezza re-
affirmed the assignment of the disputed work to the Laborers.
Picketing continued until April 30, when Respondent, during hear-
ing on an application for an injunction in a U.S. District Court,
entered into a stipulation in which it agreed to cease picketing until
the matter was finally resolved by the Board.
Contentions of the Parties
In support of its claim to the disputed work, Respondent relies
on the National Joint Board award of March 19, 1964, and asserts
that area and\industry practice, existing agreements between the con-
tending unions, and the superior competence of plumbers to perform
the work resulting from their apprenticeship training, favor it.
Laborers contends that the disputed work should be awarded to
it because of its collective-bargaining agreement with the Company,
the assignment of the work to laborers by the Company, area and
industry practice, and their superior competence for the task re-
sulting from their extensive experience with such installation.
The Company endorses the position of the Laborers and further
contends that it has never employed plumbers and that it has never
consented to be bound by any arbitration awards or union agreements.
Applicability of the Statute
The charge, which was duly investigated by the Regional Direc-
tor, 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 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. On the basis of the entire record, includ-
ing Respondent's picketing to force the Company to assign the
disputed work to its members, we find there is reasonable cause
to believe that a violation of the Act has occurred and that the
dispute is properly before the Board for determination.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. The following factors are asserted in support of
the claims of the parties herein :
1. Collective-bargaining agreements: During the entire period
involved herein, Laborers and the Company have been parties to
collective-bargaining agreements covering the employees to whom
the Company assigned the work in dispute. The Company has no
contract with Respondent and it has never employed plumbers.,
2. Company, area, and industry practice : Although both dis-
putants offered considerable evidence on area and industry practice,
much of the evidence did not relate to the type of work in dispute
here, and, in any event, the results were inconclusive. Since the
Company does not employ plumbers and has used laborers ex-
clusively for pipe installation for many years, the assignment of
this work to laborers accords with the Company's past practice.
3. Charters, constitutions, and agreements: Both disputants rely
heavily upon the original jurisdictional grants from the AFL to their
parent international organizations dating from the early years of
this century and upon numerous arbitration awards and union
compacts, including what has come to be known as the 1941 Agree-
ment between the two International Unions. It appears that few,
if any, of these awards or agreements, or any of the various inter-
pretations placed upon them, have proved acceptable to the adversely
affected disputant. Clearly, they have neither settled this longstand-
ing controversy nor established an effective means of resolving it.
This factor, therefore, cannot weight the balance in favor of either
disputant.
4. Action of the Joint Board: Both unions support their respec-
tive claims to the disputed work by citing previous decisions of the
National Joint Board. Respondent, in addition, urges that the
March 19, 1964, action of the Joint Board in the instant dispute,
wherein it awarded the work in question to plumbers, should be
dispositive of this matter. The Employer had not consented to
be bound by a decision of the National Joint Board and had, in
fact, affirmatively asserted its unwillingness to be bound by any
jurisdictional dispute determination in which it had not participated
or exercised its option of selecting the forum which would finally
determine the dispute. Under these circumstances and in the absence
2 Local 5 , United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-CIO (Arthur Venneri Company),
145 NLRB 1580.
LOCAL 69, UNITED ASSN., ETC., PLUMBING, ETC. 603
of any showing in the record as to the basis of their determination,
the Joint Board award is merely one of the factors we must consider
in making our determination.'
5. Efficiency of operation: It is apparent that both disputants
can accomplish the disputed task with comparable competence. Re-
spondent's effort to establish that plumbers were more competent
to perform the task of installing pipe by virtue of their apprentice-
ship training did not demonstrate that the installation in question
evoked the gamut of skills imparted during apprenticeship or that
it involved anything more than a simple manual operation which
may be learned in a brief period of training on the job. Respondent,
moreover, concedes the propriety of the laborers' performing identi-
cal installation when the pipe in question underlies streets and
highways. Furthermore, Respondent does not claim all of the work
presently performed by the laborers in connection with the Em-
ployer's site development contract but only such portions as involves
the handling and laying of pipe. Thus, if Respondent's demands
were acceded to, it would be necessary for the Employer to divide
the total operation between two employee groups, with the laborers
preparing the ditch and performing° the requisite filling, tamping,
and paving operations, while the plumbers directed their efforts
exclusively to the pipelaying portion of the entire operation. Ob-
viously, the preparation of the ditch, the laying of pipe, and the
filling and paving of the ditch are performed more efficiently
when done as a continuous, integrated operation by a single em-
ployee group. The Employer's assignment of the disputed work
to laborers is therefore consistent with efficiency of operation.
Conclusion as to the Merits of the Dispute
Upon consideration of all pertinent factors appearing in the
record we shall assign the disputed work to the laborers. They have
performed it to the satisfaction of the Employer, who desires to
retain them on the job, and they are as skilled in the performance
of the disputed work as the plumbers who demand it. The present
assignment of the work in dispute to the laborers is consistent with
the Employer's past practice and with its collective-bargaining
agreement with the Laborers. The fragmentation of the job into
separate operations in which laborers would prepare the ditch for
the reception of the pipe and plumbers would unload and install
the pipe is not as efficient an operation as the existing procedure
whereby laborers accomplish the integrated task of preparing the
ditch and laying the pipe in a single sequential operation. We shall,
a Carpenters District Council of Denver & Vicinity, AFL-CIO (J. 0. Veteto and Son),
146 NLRB 1242; Local 964 , U'nted Brotherhood of Carpenters and Joiners of America,
AFL--C10 ( Robert A . W. Carleton, d/b/a Carleton Brothers Company ), 141 NLRB 1138.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accordingly, 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
Upon the basis of the foregoing findings and the entire record
in this proceeding, the Board makes the following determination of
dispute pursuant to Section 10(k) of the Act:
1. The laborers employed by Bellezza Company, Inc., who are
represented by Local 472, International Hod Carriers, Building and
Common Laborers Union of America, AFL-CIO, are entitled to
perform the disputed work of installing nonmetallic outside sanitary
and storm sewers, in connection with the site development project
identified as the Central Maintenance Facility and Garage, Route
440, Jersey City, New Jersey.
2. Local 69, United Association of Journeyman 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 Company
to assign the above-described disputed work to plumbers.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 69, 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 22, in writing, whether it will or will not refrain from
forcing or requiring the Company, by means proscribed by Sec-
tion 8(b) (4) (D), to assign the work in dispute to plumbers rather
than laborers.
Cemetery Service Corporation (Parkview and Springdale Ceme-
teries ) and Teamsters, Chauffeurs and Helpers Local Union
No. 627, affiliated with the International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of Amer-
ica, Petitioner . Case No. 13-RC-10021. November 9, 1964
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Hearing Officer
Samuel Jacobson. The Hearing Officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
149 NLRB No. 58.