Local Union No. 215

National Labor Relations Board - Board Decisions

Apr 6, 1978

235 N.L.R.B. 754 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 215, Construction and General
Laborers' Union, AFL-CIO and J. L. Turner Co.,
Inc. and Local Union No. 158, Heavy and Highway
Construction Workers' Union, AFL-CIO. Case 4-
CD-425
April 6, 1978
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed on July 18, 1977, by J. L. Turner
Co., Inc., herein called the Employer, alleging that
Local Union No. 215, Construction and General
Laborers' Union, AFL-CIO, herein called Local 215,
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 certain work to
employees represented by Local 215 rather than to
employees represented by Local Union No. 158,
Heavy and Highway Construction Workers' Union,
AFL-CIO, herein called Local 158.
Pursuant to notice, a hearing was held before
Hearing Officer Barry R. Elson on August 17, 25,
and 26, 1977. All parties,' including the Employer,
Local 215, and Local 158, appeared at the hearing
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, the
Employer and Local 215 filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds they are free
from prejudicial error. The rulings are hereby af-
firmed. Upon the entire record in this case, including
the aforementioned briefs, the Board makes the
following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer is a corporation engaged in the plumbing
construction industry as a provider of plumbing,
heating, air-conditioning, and process piping within
buildings and of site utilities surrounding buildings,
I Local 215 contends that Local 90 of the Plumbers Union should also be
a party to this proceeding. The record reveals that Local 158 performs both
the laying of pipe and the disputed backfilling work. When Local 215
performs the disputed backfilling function it works in tandem with plumbers
who perform the laying of pipe. Local 215 contends that since it works in
235 NLRB No. 94
including water, gas, storm, and sanitary utilities.
The Employer conducts its business in the Wilkes-
Barre, Pennsylvania, area. During the last calendar
year, the Employer had a gross volume of business in
excess of $500,000 and purchased goods and materi-
als valued in excess of $50,000 from points outside
the Commonwealth of Pennsylvania. We find that
the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) 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 215
and Local 158 are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute is the backfilling in the
construction of lateral storm and sanitary sewer lines
between the point of first connection proceeding out
from the building and the point where they intersect
with the main sewer line at the Mountaintop Shop-
ping Center worksite. The parties also dispute what
constitutes the point of first connection.
B. Background and Facts
For approximately 20 years, the Employer has had
a collective-bargaining agreement with Local 215; it
has had a collective-bargaining agreement with Local
158 since 1972 or 1973. Both Unions are locals of the
Laborers' International Union.
On June 4, 1977, the Employer commenced work
as a subcontractor on the Mountaintop job. It was to
be responsible for the installation of all lateral storm
and sanitary sewer lines, including excavation, laying
of pipe, and backfilling.
On or about June 15, 1977, Ray W. Turner, the
chief executive officer of the Employer, became
aware through rumors that there was a dispute
involving the assignment of the backfilling of storm
and sanitary lateral sewer lines. Turner immediately
telephoned Local 215 Business Agent Henry DePolo.
Depolo informed Turner that, if Turner did not
award the work of backfilling lateral sewer lines to
members of Local 215, he "would shut the job
down." DePolo also told Turner that there was to be
a meeting at the offices of the Northeastern Pennsyl-
tandem with the Plumbers, their interests are united. However, as the record
contains no evidence that Plumbers Local 90 has made any claim for the
disputed work at the jobsite herein, we find it is not a proper party to this
proceeding.
754
LOCAL UNION NO. 215, LABORERS
vania Contractors' Association between Local 158
and Local 215 on June 28, 1977.
Turner attended the meeting on June 28, 1977.
Also present were representatives of Local 158, Local
215, the Laborers' District Council of Eastern Penn-
sylvania, Laborers' Local 130, other contractors, and
a Mr. Licastro of the Laborers' International Union.
There was no resolution of the dispute at the
meeting. The meeting adjourned with Licastro indi-
cating that he would call Turner and inform him of
the decision made with respect to the dispute.
Turner received no word from the Union by July
14, 1977, and on that date made the assignment of
the disputed work to members of Local 158. Implied
in Turner's assignment is his determination that a
wye, tee, clean-out, manhole, or catch basin is a
"connection."
At the end of the workday on July 14, 1977, the
Employer's foreman reported to Turner that there
was going to be a strike over the jurisdictional
assignment. The next day there were pickets at the
jobsite. The parties did not discuss the matter again
until July 28, 1977, when Pollack of Local 215,
DiGeronimo of Local 158, and Turner met at the
jobsite. Both union representatives reiterated their
claims for the work involved.
C. Contentions of the Parties
Local 215 contends that the dispute herein is not
properly before the Board because there exists an
agreed-upon method for the voluntary adjustment of
the instant dispute to which all parties are bound. It
further contends that Local 158 has disclaimed the
work in question. On the merits of the dispute, it
contends that the employees it represents are entitled
to the disputed work on the basis of the area and
industry practice, its contract with the Employer, and
job impact.
The Employer prefers assignment of the disputed
work to the employees represented by Local 158
based on considerations of economy and efficiency.
The Employer further contends that assignment to
the employees represented by Local 158 is consistent
with its past practice, area practice, its relevant
contractual obligations, and the loss of jobs that
would be caused by assignment to Local 215.
Both the Employer and Local 158 contend that the
matter is properly before the Board in that there is no
agreed-upon method for the voluntary settlement of
the instant dispute.
At the hearing Local 158 contended that it had not
disclaimed the disputed work. It further contended
2 N.LR.B. v. Plasterers Local Union No. 79, Operative Plasterers' and
Cement Masons' International Association, AFL-CIO [Texas State Tile &
Terrazzo Co.], 404 U.S. 116 (1971).
that the disputed work should be assigned to the
employees it represents based on economy and
efficiency, necessary skills, the Employer's past prac-
tice, and job impact.
D. Applicability of the Statute
Section 10(k) of the Act empowers the Board to
determine a dispute of which an 8(b)(4)(D) charge
has arisen. However, before the Board proceeds with
a determination of dispute, it must be satisfied that
there is reasonable cause to believe that the statute
has been violated. We are not so satisfied in this case.
As indicated previously, Local 215 contends that
Local 158 has disclaimed the disputed work. In
support of its claim it offered, at the hearing,
correspondence relating to the attempts at interunion
resolution of the dispute, wherein Local 158 urged
the Employer to assign the disputed work to the
employees represented by Local 215 pursuant to the
ruling by the Laborers' District Council. Local 158
appealed that ruling to the International and also
appeared at the hearing herein and stated on the
record that it still claimed the disputed work.
Subsequent to the hearing, on November 16, 1977,
Local 158 wrote the Regional Director stating that its
appeal to the International Union had been unfavor-
able and that its officers and members "recognize the
propriety of the General Executive Board's decision
and the right of Local 215 to perform the disputed
work." Local 215 again urges that Local 158 has
disclaimed the disputed work and the Employer
contends to the contrary.
In our view, Local 158 has, by its letter to the
Regional Director, effectively disclaimed the disput-
ed work. The Supreme Court's decision in N.L.R.B.
v. Plasterers,2 while holding that interunion dispute
settlement procedures do not constitute voluntary
methods of settlement because employers are not
bound thereby, nonetheless, specifically recognizes
that there is no jurisdictional dispute where one
union effectively disclaims the work. Nowhere in the
Court's decision is it stated or implied that such
interunion settlement is an unsatisfactory basis for
disclaimer. Citing Safeway Stores,3 the Court stated
that (404 U.S. at 134-135):
[Wlhen one union disclaims the work, § 10(k)
proceedings terminate, not because all "parties"
to the dispute have settled or agreed to settle
within the meaning of the statute, but on the
ground that "the Board has power, under Section
10(k), only to hear and determine the merits of a
jurisdictional dispute and. . . by definition, such
3 Highway Truckdrivers & Helpers, Local 107, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (Safeway
Stores, Incorporated), 134 NLRB 1320 (1961).
755
DECISIONS OE NATIONAL LABOR RELATIONS BOARD
a dispute cannot exist unless there are rival claims
to the work...." [a In employer may be a third
party to disputes over work assignments, but
when the other two parties settle their differences
and one union declines the work assigned to it,
the inter-union conflict that §§ 8(b)(4)(D) and
10(k) were designed to eliminate disappears. A §
10(k) hearing is a comparative proceeding aimed
at determining which union is entitled to perform
certain tasks. Its function evaporates when one of
the unions renounces and refuses the work.
It is instructive to note that the facts in this case are
identical with those in Plasterers, with one significant
exception. In both cases the competing unions
submitted the dispute to an interunion body for
decision. In both cases the employer was not bound
by that decision. The differences lies in the fact that
in Plasterers the union that lost in the interunion
forum refused to acquiesce in the decision, and in the
instant case the losing union stated unequivocally in
a letter to the Board that its officers and members no
longer seek the disputed work.4
The Court's language, as quoted above, when read
in light of the facts, leads to the conclusion that a
disclaimer based on such interunion decision is
effective. Thus, our only inquiry should be whether
or not the disclaimer is bonafide.
4 See Laborers' International Union of North America, Local 935, AFL-
CIO (C & S Construction Co., Inc.), 206 NLRB 807 (1973).
While it is true that at the hearing Local 158
continued to claim the disputed work on the basis of
its appeal from the District Council's decision to the
International Union, it also stated there that if it lost
the appeal it would renounce the work. It has now
followed through on that expressed intention and by
letter to the Regional Director has renounced the
work. There is no reason to doubt its credibility and
its stated intention to abide by its disclaimer.
In addition, we believe that the Board need
concern itself with what might happen at future
jobsites only when the record reveals some reason for
that concern. 5 In this case we see no basis for
assuming the likelihood that Local 158 would reas-
sert its claim at future jobsites. If any assumptions
about the future are to be made, it seems more
rational to assume that at future jobsites, under the
same circumstances, Local 158 would continue to
abide by its International's view of the merits of the
dispute.
In these circumstances, we find that the assignment
of work described herein is not in dispute within the
meaning of the Act, and we shall quash the notice of
hearing herein.
ORDER
It is hereby ordered that the notice of hearing
issued in this case be, and it hereby is, quashed.
5 Local Union No. 55, Sheet Metal Workers International Association,
AFL-CIO (Gilbert L Phillips, Inc.), 213 NLRB 479 (1974).
756