Local 81, Laborers

National Labor Relations Board - Board Decisions

Jan 26, 1971

188 N.L.R.B. 128 (N.L.R.B. 1971)

128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 81 , Laborers International Union of
North America, AFL-CIO, and Dan Raymond Con-
struction Co. and Local No. 6, Bricklayers , Masons
and Plasterers ' International Union of America, B.
M. & P.I.U. Case 13-CD-201
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Laborers
and Bricklayers are labor organizations within the
meaning of Section 2(5) of the Act.
January 26, 1971
DECISION AND DETERMINATION OF
DISPUTE .
III. THE DISPUTE
Background and Facts
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Dan Raymond Construction Co.,
herein called the Company, alleging that Local No.
81, Laborers International Union of North America,
AFL-CIO, herein called Laborers, had violated Sec-
tion 8(b)(4)(D) of the Act. A duly scheduled hearing
was held in Chicago, Illinois, before Hearing Officer
James A. Burstein on August 12 and 14 and Septem-
ber 8, 1970, at which Local No. 6, Bricklayers, Ma-
sons and Plasterers' International Union of America,
B.M. & P.I.U., herein called Bricklayers, intervened.
All parties appearing were afforded full opportunity
to be heard, to examine and cross-examine witnesses,
and to adduce evidence bearing upon the issues.
Thereafter, Laborers filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
I THE BUSINESS OF THE COMPANY
The Company is an Illinois corporation engaged in
sanitary and storm sewer construction work. During
the past 12 months the Company had a gross volume
of business in excess of $3 million, and purchased
goods in Illinois, valued in excess of $50,000, which
were shipped directly in interstate commerce to the
Company's jobsite in Hobart, Indiana, and other sites
outside the State of Illinois. We find that the Compa-
ny is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectu-
ate the policies of the Act to assert jurisdiction herein.
The Company is engaged, principally in Illinois, in
the laying of sewer pipes and the installation of pre-
cast concrete manholes. In 1969 the Company was
engaged in such work at a construction site in Hobart,
Indiana, under contract with the city of Hobart.
The Company normally uses seven employees on a
crew to install sewer facilities. The crew consists of a
foreman, a pipelayer, two common laborers, two op-
erating engineers, and an oiler. After an operating
engineer opens a ditch, the pipelayer descends into
the ditch and begins shoveling a trench where the pipe
is to be laid. The pipe is lowered into the trench either
by hand or by cable. If lowered by cable, it is done
by an operating engineer. On this particular job, the
pipe was lowered by cable most of the time. It is the
pipelayer's job to align and lay the pipe and join it
with the previously laid section. Each end of a pipe
section has rubber gaskets attached to it. These ends
comprise the slip-seal joints. The pipelayer lubricates
the gaskets and by using a metal bar pries the newly
laid section into the previously laid one to form a
continuous sewer system. After the sections have been
joined, the pipelayer shovels a sand bedding over the
pipe to protect it from being crushed by rocks and
backfill. On the job in question, a 4 foot by 6 foot
metal sandbox was commonly used for support in
laying the pipe. The box was set in place by an operat-
ing engineer. The Company has found from expe-
rience that it was neither efficient nor safe for more
than one employee to work in the box normally.
At certain junctures, the pipelayer installs the pre-
cast concrete manholes. He is required initially to
shovel out an area in which the precast concrete bot-
tom of the manhole is placed.
The barrel of the manhole has two cuts into which
the pipeline is run. The manhole may consist of sev-
eral sections running perpendicular to the pipe. The
cuts in the barrel are usually wider than the pipe that
fits into the cuts. Therefore, at the points where the
pipeline and the manholes intersect, there are gaps
which must be closed by the use of brick and mortar.
The Company has customarily utilized the pipelayer
188 NLRB No. 12
LOCAL 81, LABORERS 129
to do this minor brickwork, which was regarded as
incidental to the laying of the pipe.'
The Company commenced work on the present job
on or about October 6, 1969, and initially assigned the
work in dispute to a laborer, Ziroli, who had been
employed by the Company for about 12 years. There-
after, the work crews were supplemented as needed by
laborers obtained from Laborers Local No. 81, Res-
pondent herein.
In the latter part of October 1969, Chester Kos,
business manager for Bricklayers, told the Company
that a bricklayer was required to lay the pipe. Since
the Company had not done any work in Indiana re-
cently and was thus not familiar with the local prac-
tice, it decided to go along with Kos' claim.
Accordingly, on November 3 the Company hired Mil-
da, who was sent out from the Bricklayers hiring hall.
After 2 days of work, however, Milda did not show
up, apparently because he did not like working below
grade in the trench. The Company thereupon re-
sumed its practice of using one of its own employees,
a laborer, until about February 16, 1970, at which
time Sandilla, a Bricklayer member, asked to be hired
for the work. The Company declined, but indicated
that it was willing to hire Sandilla if Bricklayers re-
quested it. The request was forthcoming, and the
Company then hired Sandilla on March 2. At the end
of the week, however, the Company discharged San-
dilla because he was inexperienced in the type of work
involved. On March 9 Kos advised the Company that
another member, Blaszkiewicz, would have to be
hired to replace Sandilla, and the Company did so. On
March 16, Blaszkiewicz was instructed by an inspect-
ing engineer on behalf of the city of Hobart to go into
the trench to perform a certain task. Blaszkiewicz re-
plied that he was not going to do it, because it was
Laborers work. The Company was about to discharge
Blaszkiewicz for this reason, but discovered that
Blaszkiewicz had already walked off the job and left.
On March 19 Kos brought still another Bricklayer
member, Ganz, to the site to take Blaszkiewicz' place,
and the Company put Ganz to work. Later in the day,
a Laborers representative, observing Ganz working
on the job, told the Company to replace Ganz with a
laborer or else the Company's laborers would cease
work. The Company accordingly let Ganz go, and
replaced him with a laborer.
B. The Work in Dispute
As the parties stipulated, the dispute concerns the
laying of slip-seal joint virtrified clay sewer pipes 12
inches and under, and the installation of precast con-
1 At other construction sites, where the Company built the entire manholes
at the site rather than using precast manholes, bricklayers were used due to
the extensive amount of brickwork necessarily involved
crete manholes , at the Company's Hobart, Indiana,
construction site.
C. Applicability of the Act
Before the Board may proceed with a determina-
tion of 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.
Although Laborers representatives denied the testi-
mony of several witnesses that Laborers threatened to
remove the laborers from the job unless bricklayer
Ganz was replaced with a laborer, the record is suffi-
cient to establish that there is at least reasonable cause
to believe that a violation of Section 8(b)(4)(D) has
occurred. The dispute is therefore properly before us
for determination.
D. The Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to the various relevant fac-
tors.' The following factors are relevant in making a
determination of the dispute before us:
1. Certification and collective-bargaining
agreements
The Company is a member of Underground Con-
tractors Association Of Illinois, which has a col-
lective-bargaining agreement covering operations in
the State of Illinois with Laborers sister local. Neither
labor organization here involved, however, has any
certification or collective-bargaining agreement with
the Company.
2. Company practice
The record shows that the Company's practice in
the State of Illinois, where the Company does most of
its business, is to award to laborers such work as is
here in dispute. The record further shows that the
Company has not previously performed work of the
type in dispute within the geographic jurisdiction of
either labor organization.'
3. Area practice
Both Laborers and Bricklayers offered evidence
that they performed work of the type in dispute for
other employers in the area. The Company offered
evidence that before bidding on the present job it had
2 International Association of Machinists, Lodge No 1743, AFL-CIO (J A
Jones Construction Company) 135 NLRB 1402
3 The Company has used bricklayers on other types of work in Indiana in
1962 and 1965, but the work did not involve the laying of pipes
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made some inquiry of such employers as to what kind
of employees they used to perform the work in dis-
pute, and were advised that laborers were used to
perform the work. This evidence tends to corroborate
Laborers evidence that their members perform work
of the type in dispute for area employers. Other evi-
dence tends to some extent to support Bricklayers
claim to the work. We are satisfied that the evidence
as a whole does not clearly and uniformly favor either
labor organization.
4. Efficiency and economy of operations
The record shows that the actual laying of the pipe,
apart from the preparatory and restorative work
(which takes about 21 minutes), is not time consum-
ing, the laying of a section of pipe taking only about
3 minutes. The Company explained that if a bricklay-
er were utilized to lay the pipe, assuming 20 sections
were laid per day, the bricklayer would be idle 7 out
of 8 hours a day. Moreover, there appears to be no
particular skill involved in performing the disputed
work, and neither labor organization urges to the con-
trary. Rather, the key factor seems to be the employ-
ees' experience in handling different types of soil
conditions before and after the pipe is laid. The labor-
ers, whom the Company employed to lay pipe, also
shovel, prepare the underground trench, and assist
aboveground in slack periods and also in clean up.
They thus have no idle time while on the payroll. The
evidence further shows that utilizing an employee
only to lay the pipe does not produce an efficient
operation. Moreover, the evidence as to the
Company's experience with the first four bricklayers
supplied by Bricklayers similarly shows that an effi-
cient operation was not produced . As to the work of
installing precast concrete manholes, since the man-
holes are precast the work appears primarily to in-
volve laborers and only incidentally involves
bricklaying skills.
Even apart from the fact that the wage rate in effect
for laborers is less than the rate in effect for bricklay-
ers, it is clear that the use of laborers rather than
bricklayers achieved a desirable economy of opera-
tions.
5. Conclusions
Based upon the entire record, as set forth above,
and after full consideration of all the relevant factors,
we conclude that the Company's laborers are entitled
to perform the work in dispute. Our present deter-
mination is limited to the particular jobsite where this
dispute arose.
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 the case,
the National Labor Relations Board makes the. ol-
lowing Determination of Dispute:
Employees employed by Dan Raymond Construc-
tion Co., as laborers and currently represented by
Local No. 81, Laborers International Union of North
America, AFL-CIO, are entitled to perform the work
of laying (1) slip-seal joint vitrified clay sewer pipes 12
inches and under, and (2) precast concrete manholes,
at the Dan Raymond Construction Co.'s Hobart, In-
diana, construction site.