Local 7, Etc., Plumbing & Pipefitting Industry

National Labor Relations Board - Board Decisions

Dec 16, 1964

150 N.L.R.B. 461 (N.L.R.B. 1964)

LOCAL 7, ETC ., PLUMBING & PIPEFITTING INDUSTRY 461
(c) Notify the Regional Director for Region 10, in writing , within 20 days from
receipt of this Decision , what steps Respondent has taken to comply with it.7
7If this Recommended Order be adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 10, in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply -herewith "
APPENDIX
NOTICE TO ALL MEMBERS AND APPLICANTS FOR REFERRAL
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
telations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby give notice that:
WE WILL NOT cause or attempt to cause R . W. Hughes Construction Com-
pany, Inc., or any other employer whose operations affect commerce within the
meaning of the Act, to terminate the employment of William Henry Narmore,
or any other employee or applicant for employment in violation of Section
8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees of
or applicants for referral of any other employer engaged in commerce within
the meaning of the Act.
WE WILL make William Henry Narmore whole for loss of earnings suffered
as a result of the discrimination against him on the Pizitz Department Store job
at Huntsville , Alabama.
LOCAL No. 320, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Members and applicants for referral may communicate directly with the Board's
Regional Office , 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta,
Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any question
concerning this notice or compliance with its provisions.
Local No. 7, Albany, New York and Vicinity, United Association
of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry and James H. Maloy, Inc. and Construction
and General Laborers Local 190 , International Hod Carriers,
Building and Common Laborers Union, AFL-CIO. Case No.
3-CD-126. December 16, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed by James H. Maloy, Inc., herein called the Employer,
alleging that Local No. 7, Albany, New York, and Vicinity, United
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry, herein sometimes called the Respondent, had
violated Section 8(b) (4) (D ) by threatening, coercing, or restraining
the Employer for the purpose of compelling it to assign certain work
to employees represented by Respondent, rather than to employees
150 NLRB No. 50.
462 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
represented by Construction and General Laborers Local 190, Inter-
national Hod Carriers, Building and Common Laborers Union, AFL-
CIO, herein called the Laborers. Pursuant to notice, a hearing was
held before Hearing Officer Joseph D. Luksch, on October 7 and 8,
1964, at which all parties were afforded full' opportunity to be heard,
to examine and cross-examine witnesses, and to adduce evidence bear-
ing upon the issues. The rulings made by the Hearing Officer at
the hearing were free from prejudicial error and are hereby affirmed.
Briefs were filed by the Employer, the Laborers, and the Respond-
ent. Upon the entire record in this proceeding, the Board 1 makes
the following findings :
1. The business of the Employer
The Employer is a New York corporation 'engaged in the construc-
tion industry in the city of Albany, State of New York. During
the past 12 months the Employer purchased goods and materials in
excess of $50,000 from points outside of New York for use in its
business in the State of New York. The parties stipulated and we
find that the Employer is engaged in commerce within the meaning
of the Act, and it will effectuate the policies of the Act to assert
jurisdiction herein.
2. The labor organizations involved
The parties stipulated, and we find, that the Respondent and the
Laborers are labor organizations within the meaning of Section 2(5)
of the Act.
3. The dispute
A. The basic facts
The Employer on May 8, 1964, was awarded, by the State of
New York, the work of installing sewer and water lines and removal
of the old sewerlines where necessary at the South Mall Redevelop-
ment Area, Albany, New York. The job is scheduled for completion
by December 30, 1964. The South Mall is to occupy an area of 100
acres in downtown Albany. The area has been razed of old buildings
or is in the process of being razed. The Employer is installing the
main sewer and water lines located in the streets of the mall, the
connections from the main lines to the' water hydrants and existing
utilities, including necessary tunneling, manholes, and water hy-
drants. Work began about mid-May 1964. The Employer is utiliz-
I 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 [ Members Leedom , Fanning,
and Brown]. -
LOCAL 7, ETC., PLUMBING & PIPEFITTING INDUSTRY 463
ing laborers and operating engineers to prepare trenches, install pipe,
and backfill the operation. By mid-June of 1964, the Employer had
approximately 14 employees working on the disputed tasks, including
3 operating engineers and 11 laborers.
Near the end of June, Riley, the Respondent's business agent, vis-
ited the jobsite, and seeing cast-iron pipe on the site, asked Maloy
when he would need a plumber. When told by Maloy that they
would not need a plumber, Riley replied, "Maybe I won't bother you."
About 2 weeks later Riley appeared at the jobsite and asked when
the Employer would need a plumber. He stated that the Employer
should put a plumber on to "give the, job a blessing." Riley was
again told by Maloy that they did not need a plumber. Riley again
appeared at the jobsite on August 16, 1964, and said he wanted a
plumber on the job. Maloy said he could not put a plumber on and
Riley replied he would get a "decision." Riley testified that he meant
a decision from the Joint Board.
On August 12, 1964, Maloy received a telegram from the National
Joint Board for the Settlement of Jurisdictional Disputes in the
Building and Construction Industry, asking him to submit a descrip-
tion and pictures of the disputed work. Maloy sent a reply telegram
to the Joint Board advising it that neither Maloy nor the Laborers
were "stipulated" to the Joint Board agreement and advised the
Board not to act in the matter as Maloy would not abide by its
decision.
On August 21, 1964, the Joint Board rendered a decision awarding
the work to the Respondent. The decision refers only to the ". . . in-
stallation of sixteen-inch cast iron water piping . . ." and states that
the work in dispute is governed by the agreement of January 23,
1941, between the International Plumbers and the International La-
borers, and shall be assigned to plumbers and steamfitters.
On or about August 27, 1964, Riley again told Maloy at the job-
site that the work belonged to the plumbers and that he wanted a
man on the job. According to Maloy, Riley concluded by stating
that if Maloy touched any more cast-iron pipe he would put a picket
on the job. On the same day Riley appeared at the site carrying a
sign which read :
Plumbers and Steamfitters Local #7 On Strike Against J. H.
Maloy, Inc. to Protest the Jurisdiction Awarded Them By the
National Joint Board.
Maloy told Riley they would get an injunction and sue. Riley re-
plied, "Go ahead, you will be number 5."
775-692-65-vol. 150-31
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The picketing continued for 2 or 3 weeks; the picket stationed him-
self wherever Maloy's crews were working, regardless of the type of
pipe (sewer or water) being installed. For 1 week three employees
of Maloy's who were members of the Operating Engineers refused to
work because of the picket. The parties were never able to reach an
agreement concerning the scope of the disputed work.
Respondent states it is only claiming the cast-iron pipe installation
and not the sewer pipe work. It also states that it does not claim the
unloading of the cast-iron pipe when delivered to the jobsite or the
backfill work, tamping, and hand excavation. The Employer and
Laborers claim-that the entire operation is involved because Respond-
ent indiscriminately picketed the Employer's installation of both
sewer and water pipes. In our view, the record indicates that the
Respondent seeks only the installation of the cast-iron waterpipe and
related work, namely, the lowering into the ditch, the leveling, the
aligning and making of the joint of the cast-iron water mains, and
the installation of the hydrants, work performed by the laborers.
B. Applicability of the statute
Before the Board proceeds with a determination of dispute pursu-
ant to Section 10 (k) of the Act, it must be satisfied that there is reason-
able cause to believe that Section 8(b) (4) (D) has been violated.
As hereinabove set forth, the record clearly shows that the Re-
spondent picketed the jobsite, and thereby succeeded in inducing a
work stoppage, for the purpose of forcing the Employer to assign
the work in dispute to the • Respondent instead of the Laborers.
Accordingly, we find, on the entire record, that there is reasonable
cause to believe that a violation of Section 8 (b) (4) (D) has occurred
and that the work dispute is properly before the Board for determi-
nation under Section 10(k) of the Act.
C. Contentions of the parties
In• support of its claim to the disputed work, Respondent relies on
the National Joint Board award of August 21, 1964, the existing
agreement between the contending unions, area practice, and tradi-
tional assertion of jurisdiction over the type of work in dispute set
out in Respondent's constitution.
The Employer and Laborers claim that the work belongs to the
Laborers because (1) the Employer assigned the work to the La-
borers, (2) Employer's past practice, (3) contract coverage, and (4)
area practice.
D. 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
LOCAL 7, ETC., PLUMBING & PIPEFITTING INDUSTRY 465
relevant factors and the Board has held that its determination in
jurisdictional dispute cases is an act of judgment based upon com-
monsense and experience in balancing such factors .2
1. Work and skills involved
The pipe, regardless of type, is transported to the site where it is
unloaded by a hoist. The trenches are dug by a backhoe and graded
by hand shovel. The pipes are lowered into the prepared ditch.
Either Tytons or mechanical joints are used. A gasket is inserted
and the pipe joints are cemented and calked. A chain device re-
ferred to as a "come-along" is applied by laborers to force the pipe
tightly together. The cast-iron pipe running to the hydrant is cut
by a chain-type saw. The record clearly shows that no skills peculiar
to plumbers are involved and that laborers have always been qualified
and competent to perform the work in dispute.
2., Contract coverage
The Employer is a member of the Labor Relations Division, Asso=
ciation of General Contractors of America, New York State Chapter,
which has a contract with the Laborers. The Employer has no con-
tract with Respondent. This current agreement, which the parties
stipulated governed the South Mall jobs, includes, under article II,
the coverage of the agreement relative to the work tasks in dispute,
namely, heavy construction involving "3. . . . streets, sewers, water
mains. . . ." We find that this jurisdictional clause is sufficiently
broad to cover the work in dispute.
3. Company and area practice
The record shows that since 1946, the Respondent has used laborers
to install its pipes on similar jobs. The only exceptions to this were
a job at the Saratoga Reservation in'1961 and a more recent job at
the Albany Country Club where plumbers were used with laborers
to lay waterpipes. However, the Employer merely handled the pay-
roll at the Albany Country Club site and had no responsibility for,
nor did the hiring of, the crafts involved.
Five area contractors testified that they generally use laborers to
perform pipe-installation work on construction projects of the type
here involved. Although the Respondent introduced evidence that
various jobs requiring the installation of water and sewer lines were
either performed by plumbers or mixed crews of plumbers and la-
borers, the record shows that most of this work was performed by
plumbers only because the jobs required work in or around an exist-
2 International Association of Machinists , Lodge No. 1743, AFL-C10 (J. A. Jones Con-
struction Company), 135 NLRB 1402.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing structure. Thus, the record evidence shows and we find that
within the Albany area the practice is for-laborers to perform the
disputed work, and, further, that the Employer uses members of
the Laborers.
4. Constitution and agreements
Respondent asserts that its constitution clearly indicates that the
Plumbers have traditionally exercised jurisdiction over the type of
work in dispute in this case. Respondent also relies on the 1941
Agreement between the two International Unions to show the custom
and practice prevalent in the industry. It is apparent that over the
years the Unions have applied differing interpretations concerning
this agreement and have not reached a solution that would settle this
controversy .-3 Therefore we cannot say that this factor favors either
party.
5. Joint Board award
Respondent cites a previous decision of the National Joint Board
in support of its claim here. However, such award involved work
unrelated to the work in dispute. Also, it relies on the Joint Board
decision of August 21, 1964, awarding the particular work to the
Respondent. Respondent contends that this award should determine
the dispute in the instant proceeding. However, the Employer was
never party to an agreement that would bind it to accept Joint Board
decisions. Therefore, we find no merit in the argument that the Joint
Board determination should control our determination in the instant
proceeding.
6. Efficiency and economy of operations
As previously noted, plumbers possess no greater skills than those
possessed by the laborers. The record shows that the Employer has
assigned the disputed work to the laborers and is satisfied with the
efficient way they are performing their required tasks.
Conclusions as to the Merits of the Dispute
In view of the foregoing, particularly the evidence pertaining to
contract coverage, established area and Employer practice, the Em-
ployer's assignment of the work to the Laborers, and his satisfaction
with the results achieved, we shall determine the existing jurisdic-
tional dispute by awarding the work in dispute to the employees of
the Employer represented by the Laborers rather than to employees
represented by the Plumbers. Our present determination is limited to
the particular controversy which gave rise to this proceeding.
3Looal 69, United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO (Bellezza Company, Inc.),
149 NLRB 599.
AMERICAN FEDERATION OF TV & RADIO ARTISTS, ETC. 467
DETERMINATION OF DISPUTE
Upon the basis of the foregoing and the entire record in this case,
the Board makes the following determination of dispute, pursuant to
Section 10(k) of the Act.
1. Employees classified as laborers, currently represented by Con-
struction and General Laborers Local 190, International Hod Car-
riers, Building and Common Laborers Union, AFL-CIO, are entitled
to the work of installation of the cast-iron waterpipe and related
work, namely, the lowering into the ditch, the leveling, the aligning
and making of the joint of the cast-iron water mains, and the installa-
tion of the hydrants in the South Mall Redevelopment Area, Albany,
New York.
2. Local No. 7, Albany, New York and Vicinity, United Associa-
tion of Journeymen and Apprentices of the Plumbing and Pipefit-
ting Industry, is not entitled by means proscribed by Section 8 (b)
(4) (D) of the Act, to force or require Employer to assign the above
work to plumbers who are represented by Local No. 7, Albany, New
York, and Vicinity, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry.
3. Within 10 days from the date of this Decision and Determina-
tion, Local No. 7, Albany, New York, and Vicinity, United Associa-
tion of Journeymen and Apprentices of the Plumbing and Pipefit-
ting Industry shall notify the Regional Director for Region 3, in
writing, whether it will refrain from forcing or requiring the Em-
ployer, by means proscribed by Section 8(b) (4) (D) of the Act, to
assign the work in dispute to plumbers rather than laborers.
American Federation of Television and Radio Artists, San Fran-
cisco Local , and National Association of Broadcast Employees
and Technicians , Local 55 and Great Western Broadcasting
Corporation d/b/a KXTV. Case No. 20-CC-234. December 16,
1964
SUPPLEMENTAL DECISION
On December 27, 1961, the Board issued a Decision and Order in
the instant case 1 finding that the Respondent Unions had not violated
Section 8(b) (4) (ii) (B) of the Act, as alleged. The Board held, in
substance, that Respondents' conduct was protected by the so-called
publicity proviso to that section.
1134 NLRB 1617.
150 NLRB No. 46.