Locals 224, 830, United Assn. of Journeymen, Etc.

National Labor Relations Board - Board Decisions

May 26, 1965

152 N.L.R.B. 902 (N.L.R.B. 1965)

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union 224 and Local Union 830, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL-CIO and Bernard
Pipe Line Company and Locals 480, 758 and 894, International
Hod Carriers' Building and Common Laborers' Union of Amer-
ica, AFL-CIO.' Case No. 8-CD-44. May 26, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as amended, following a charge filed by Bernard Pipe
Line Company, herein called the Company or Bernard, alleging that
Local Unions 224 and 830, United Association of the Plumbing and
Pipe Fitting Industry of the United States and Canada, AFL-CIO,
herein called Respondents or Plumbers, had violated Section 8 (b) (4)
(D) of the Act. Pursuant to notice, a hearing was held before Hearing
Officer Nora Friel, on August 10, 11, 13, 14, and 31, September 1, 2, 3,
4, 24, and 25, October 21, and November 11, 1964. All parties 2 appeared
at the hearing and were afforded full opportunity to be heard,3 to
examine and cross-examine witnesses, and to adduce evidence bearing
on the issues. The rulings of the Hearing Officer made at the hearing
are free from prejudicial error and are hereby affirmed .4 Thereafter,
briefs were filed by the Company, the Plumbers, and the Laborers.
Upon the entire record in the case, the National Labor Relations
Board 5 makes the following findings :
1. The business of the Company
Bernard Pipe Line Company, an Ohio corporation with its principal
office and place of business in Barberton, Ohio, is engaged in the busi-
ness of pipe excavation and installation of pipe for two natural gas dis-
tributors, East Ohio Gas Company and Columbia Gas of Ohio. Both
of the companies are public utilities, with each company having an
annual gross volume of business in excess of $1 million, and each annu-
ally receiving $50,000 worth of materials directly from points outside
i Locals 480 , 758, and 894 intervened and are parties to the dispute . They are referred
to hereinafter as the Laborers
2 Plumbers ' Local 798 entered an appearance but did not intervene and is not a party
hereto.
3 Representatives of the Company voluntarily left the hearing after their presentation
of the Company 's case.
' Motions to dismiss this proceeding by the Plumbers on various grounds filed at the
hearing were referred by the Hearing Officer to the National Labor Relations Board
For the reasons set forth hereinafter , these motions are denied.
5 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 Fanning , Brown,
and Jenkins].
152 NLRB No. 98.
LOCALS 224, 830 , UNITED ASSN. OF JOURNEYMEN, ETC. 903
the State of Ohio. During the calendar year 1963, the Company per-
formed approximately $1,500,000 worth of work for these two public
utilities . We find that the Company 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.
2. The labor organizations involved
The Respondents and the Laborers are labor organizations within
the meaning of Section 2(5) of the Act.
3. The dispute
The Work in Issue
The disputed work is that of the "second man in the ditch"; the
employee who, among other duties, assists the welder in the welding of
gas line connections ill the ditch. The Plumbers and the Laborers both
claim jurisdiction over this work.
The Basic Facts
The Company, since 1947, through competitive bidding, has
obtained various contracts from East Ohio Gas and Columbia Gas for
the excavation and installation of natural gas distribution pipelines.
The Company operates about 15 to 20 crews for the performances of
this work. Each crew normally consists of a foreman , a welder, two
operating engineers , and approximately five or six laborers, including
one assigned to assist the welder. Though most of the crews are acti-
vated in the spring of the year and come from Barberton, Ohio, addi-
tional crews may be added, and where needed, the crewmen necessary
for these crews are hired in the field.
The Gas Company conveys gas through high-pressure transmission
lines to distribution points. It is then carried by distribution lines
under lesser pressure , usually along streets and highways, to the service
lines through which it is carried into homes and buildings.
It is the distribution of pipelines that are involved herein. The
work performed by the Company involves the opening of a ditch or
trench along the route where the pipe is to be laid. This opening is
done either by mechanical equipment operated by an operating engi-
neer , or by hand, in which case the work is performed by laborers.
Alongside the ditch, the Gas Company distributes metallic (steel) pipe
and elbows, varying in size from 3 to 12 inches in diameter and in
length from 35 to 45 feet. When the ditch or trench has been opened,
the pipe is brought over to it in a sling and lowered into place by power
equipment or by hand depending on its size and weight. Each section
of pipe is lined up with and welded to the adjoining section. In lining
up the two sections of pipe, the welder, by hand signals, directs his
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
helper (a laborer) at the other end of the loose pipe as to which direc-
tion he wants it moved so that he may get his proper spacing for the
next weld. When the pipe is lined up, a clamp is placed by the welder's
helper at the juncture to hold the two sections in line. It is then tack-
welded at various intervals around the juncture to hold the pipe in
place for the final weld.
Before a pipe is welded, the ends must be clean or the weld will not
hold. The cleaning, if necessary, is done by the welder's helper with the
use of a wire brush or a half-round file. Also, when the welder is mak-
ing his three final passes around the pipe juncture, a certain amount of
slag appears on the surface. This slag must be cleaned by the helper
with the wire brush or file before the welder proceeds to the next pass.
After a section of the pipe is welded, the helper may be engaged in
cleaning or shoring up the trench or may be assigned to other work
unconnected with his assistance to the welder. The welder is confined
to welding and generally makes about three welds a day. After the
pipe is welded, the trench is covered or backfilled with dirt, either man-
ually or by mechanical equipment. Though a particular helper will
generally be assigned to the same welder, there seems to be no rule to
this effect, and any helper may at times be assigned.
The welders employed by the Company are generally members of
Plumbers' Local 798 of Tulsa, Oklahoma, which has nationwide juris-
diction of the welding involved herein. As members of the Plumbers,
they are subject, under the International constitution, when they are
in travel status, to the jurisdiction of the Local in whose territory they
may be working, and must "abide by all working rules and regulations,
or by-laws relative to working rules and regulations, and collective
bargaining agreements in effect in the Local Union" under penalty of
a fine by the Local Union for any violation.
The Dispute with Plumbers Local 830
On or about May 11, 1964, Bernard began an installation for Colum-
bia Gas in Elyria, Ohio (known as the Depot Street job), which is
within the jurisdiction of Plumbers Local 830. The crew assigned by
Bernard had been working as a unit regularly under Superintendent
Ray Whitman and Foreman Varner and included Contract Welder
Walter P. Butlers a member of Plumbers' Local 798, and his assigned
G The company contends that Butler was a contract welder and an independent sub-
contractor but not an employee . It appears that , under a "Purchase Order," Butler
agreed to perform the welding operations , furnish his own welding truck and all weld-
ing equipment, and to supply liability insurance to protect Bernard . The Company does
not pay social security, unemployment insurance , workmen 's compensation , union wel-
fare benefits , or deduct withholding taxes for its contract welders Bernard, however,
determines the hours of work for welders at all times ; the welder is always under the
direct supervision of the Bernard foreman ; he is required to be on the job during the
regular working hours of the crew unless he is excused by the foreman ; and the welder is
an essential member of the crew with an assistant who is an employee of Bernard. We
find, accordingly, that such contract welders are employees of Bernard
LOCALS 224, 830, UNITED ASSN. OF JOURNEYMEN, ETC. 905
assistant, Hammerick, a laborer. Previous to the start of the Depot
Street job, Buckholz, business agent of Local 830, visited a Bernard
job in Lorain, Ohio, where the crew was working, and told Butler, on
or about May 3, that "our policy and contract called for a member of
the U.A. [Plumbers] to be working with him ... that one of our people
would be required to do our work on pipefitting and working with the
welder." Buckholz then approached Whitman on this matter and told
him that he would be back to see him in a few days.
Thereafter, Buckholz directed a member of his Local, Plum, to meet
him on the morning of May 11, "that there was a possibility he might
go to work." On the morning of May 11, Buckholz drove Plum to
Depot Street and, without any authorization from the Company, put
Plum to work as Butler's assistant. Plum approached Butler stating:
"My name is Vic Plum. I am your assistant." Buckholz then told
Whitman "I have brought out a fitter." Whitman stated he had not
ordered a fitter and was not using one. Buckholz contended that all
pipeline companies in the area used fitters as assistants to the welders,
but Whitman insisted he had not hired Plum. However, he agreed to
let Plum work while he checked on area practice. Upon ascertaining
to his satisfaction that fitters were not used, he instructed his foreman
to lay Plum off at the end of the day.
On the morning of May 12, Plum reported his layoff to Zvosec, finan-
cial secretary of Local 830, who instructed him to report to the jobsite
where he would meet him. When Zvosec arrived at the jobsite, repre-
sentatives of the Laborers were present with Superintendent Whitman.
A 2-hour discussion took place, with Zvosec contending that a pipe-
fitter must be used as the second man in the ditch, and the Company
and Laborers contending that a laborer must be used. When the par-
ties failed to reach agreement, Zvosec is alleged to have told Butler,
"You cannot weld without a fitter," whereupon Butler stated he would
go home until the dispute was settled, refusing Whitman's request that
he remain on the job. As a result, the Depot Street job could not pro-
ceed and was shut down for 4 days. During this time, Whitman con-
tacted Butler who refused to return without a pipefitter assistant.
On May 17, Bernard, by letter personally delivered by Whitman to
Buckholz, stated it was referring the matter to the Board, but, because
the work had to proceed (a main street in the city had been opened
and traffic was impaired) and pending decision by the Board, it would
hire a member of Local 830 to assist the welder, "as an interim measure
and not as a precedent." Plum returned to the job and remained until
it was completed.
The record demonstrates that, prior to hiring Plum, the Company
had only once before, in 1961, hired a fitter as an assistant in the juris-
dictional area of Local 830.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Dispute with Plumbers Local 224
On or about May 13, Bernard began an installation for Columbia
Gas on Market Street, Sandusky, Ohio, within the jurisdictional area
of Plumbers Local 224. The crew assigned had been working as a unit
and consisted of a foreman, two operating engineers, five laborers, and
Contract Welder Price, a member of Local 798. On May 13, Price
checked into Local 224 for clearance. On May 15, Sabo, business agent
of the Local, went to the jobsite and discussed with Whitman the hir-
ing of a fitter as an assistant to the welder. Sabo then told Price that
lie had to have a fitter as an assistant; and it was suggested that Clep-
per, a member of the Local known to Price, be sent out. Price testified
that Sabo had told him that if he worked without a fitter, "he would
file charges against me . . . he would file charges in his own local and
get in touch with my home local."
Over the Company's objections, stated in a telephone call to the
Union, Sabo sent Clepper to the job on May 18. When Whitman saw
him on the job, he ordered him laid off. On May 19, Whitman met
with Sabo at the Local's office and discussed the dispute. During this
discussion, Sabo instructed Clepper to go to the job and tell Price not
to weld or he would be subject to a fine. Subsequently that day, Sabo
told Price that he would file charges against him if he continued to
work. As a result, thereof, the job was shut down for 4 hours-until
the Company agreed to assign Clepper to assist Price as the "second
man in the ditch" for the duration of the job. The Company, conse-
quently, was forced to lay off a laborer.
The record demonstrates that, prior to the assignment of Clepper,
the Company, on only one prior occasion, about 1961, had hired a fitter
to assist the welder in the jurisdictional area of Local 224.
Contention of the Parties
Respondent Unions contend that the issue is moot as the jobs in
Elyria and Sandusky have been completed; that there is not reason-
able cause to believe that they engaged in illegal conduct to force the
Company to assign the disputed work to their members; that they are
entitled to the work by virtue of area practice and by virtue of their
charters-which they claim grant them jurisdiction over the installa-
tion of all pipe in the building and construction industry-and also by
virtue of an agreement with respect to this and other work between the
Plumbers and Laborers International Unions; and that the skills of a
pipefitter are required for the safe and adequate performance of the
work. Local 830 further contends that it is entitled to the work by
reason of a contract negotiated with an area association to which, it
alleges, the Company agreed to be bound. The Plumbers do not claim
LOCALS 224 , 830, UNITED ASSN. OF JOURNEYMEN, ETC. 907
any of the work performed by the welder's assistant when he is not
working with the welder, such as digging ditches, shoring, or filling
in the ditches, etc.
The Laborers contend that the issue is not moot; that they are enti-
tled to the work by custom, area practice and a verbal understanding
with the Company; and that there is no conclusive agreement with
respect to the interpretation of the agreement between the two Inter-
nationals, as relied upon by the Plumbers.
The Company contends that the issue is not moot because it has rea-
sonable expectations of obtaining other jobs in the jurisdictional areas
of Respondents. It further contends that it has been its unvarying
practice for a number of years to use laborers on these jobs as the "sec-
ond man in the ditch"; that the work is unskilled; that it can be readily
learned in a very short period of time; no apprenticeship is required;
and that the use of a laborer is more economical in that, unlike the fit-
ter, when the laborer is not assisting the welder, he may be-and is-
assigned to other work. The Company further contends that the assign-
ment of laborers to the disputed work is not only company but area
practice and has been deviated from only when economic pressure has
been exerted on a company, as in the instant case. It claims that it has
no collective-bargaining agreement with Local 830, and is not a party to
or bound by any agreement Local 830 may have with other parties or
any agreements between International Unions for the settlement of
jurisdictional disputes. It contends that the Respondents caused the
work interruptions for the purpose of forcing or requiring it to assign
the work-of assisting the welder to persons represented by the Plumb-
ers rather than to persons represented by the Laborers.
Applicability of the Statute
The charge alleges a violation of Section 8(b) (4) (D). On the basis
of the entire record, we find that there is reasonable cause to believe
that a violation of that section of the Act has been committed and that
a jurisdictional dispute exists and is properly before the Board for
determination under Section 10(k) of the Act.
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 rele-
vant factors. The following factors are relevant in support of the con-
tentions of the parties herein :
1. Collective-bargaining agreements
Local 830 contends that the Company is bound to assign the disputed
work to the pipefitters by reason of an alleged contractual relationship
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arising as follows: In 1961, a Bernard foreman, Varner, whose job was
shut down in a dispute with Local 830, signed a "Letter of Understand-
ing" agreeing, on behalf of the Company, to comply with the "hours,
wages and working conditions" of a contract between Local 830 and
the Master Plumbers' Association of that area. Varner stated he
signed the Letter without any authorization from the Company because
his job was shut down and "he had a crew of men waiting on me ..."'
Varner noted that as far as he understood the agreement was only
intended to cover the hiring of Local 830 welders and did not cover the
helper. For the duration of the job, Varner used a, laborer as the helper.
The Company denies that Varner had any authority in fact to sign a
labor agreement. However, in accordance with its usual practice, the
Company paid the union wages to the welder and contributed for his
welfare benefits.
In 1962 Local 830 entered into a new agreement with the Association,
of which Bernard was not a member. Buckholz sent a letter of under-
standing to Bernard, seeking to bind Bernard to the new agreement by
having the Company sign the letter. It was in fact signed by Estimator
Stephenson who testified that the letter was to cover the employment
of a welder then in the Company's employ and the payment of his wel-
fare benefits to Local 830. It was not contended by Buckholz that any
discussion was had concerning the application of the agreement to any
"second man in the ditch." The Company contends that Stephenson,
who estimated costs and was not an officer of the Company, had no
authority to sign the letter.
The Association contract covers qualified journeymen plumbers,
pipefitters, and refrigeration men and their apprentices. It does not
specifically cover welders or their helpers. Bernard does not employ
any of the classifications covered in the contract. The welder it hires
is not required to be a journeyman pipefitter or to possess all of the
skills of that craft.7 His only qualification is that he be certified by the
Gas Company as meeting its requirements.
The Board has repeatedly held that a contract asserted as a defense
must be clear and unambiguous." On the basis of the record herein, we
find that the agreement, assuming it were binding upon the Company,
does not meet these requirements with respect to the claiming of juris-
diction over the work of the welder's helper.
7 See, e g., United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada, Local 449 (Joseph B. Fay Com-
pany ), 149 NLRB 759, where the Board held that the welding of metallic pipe was
properly assigned to laborers rather than to plumbers , the welding work therein being
identical to that in the instant case.
8International Longshoremen 's Association , Ind., and its Local 976-4, et at. ( Abraham
Kaplan, et al .), 116 NLRB 1533; Local 853, International Union of Operating Engineers
( Schiavone & Sons, Inc., et al .), 136 NLRB 993; Teamsters , etc., Local Union No. 327, etc.
(S & W Construction Company of Tenn., Inc.), 142 NLRB 170
LOCALS 224, 830, UNITED ASSN. OF JOURNEYMEN, ETC. 909
Local 224 does not claim any agreement with the Company with
respect to the disputed work.
The Laborers claim an oral contract with the Company. We find,
however, that the evidence does not clearly demonstrate the existence
of such an agreement.
2. Charters, constitutions, and agreements between Internationals
The Plumbers rely heavily upon the original jurisdictional grants
from the AFL to their parent International, and upon what has come
to be known as the "1941 Agreement" between the Plumbers' and
Laborers' International Unions. However, as stated in Bellezza Com-
pany, Inc.: 9
It appears that few, if any, of these awards or agreements, or any
of the various interpretations placed upon them, have proved
acceptable to the adversely affected disputant. Clearly, they have
neither settled this long-standing controversy nor established an
effective means of resolving it.
We find that the "1941 Agreement"' and the original jurisdictional
grants do not weigh the balance in favor of either disputant herein
under the circumstances of this case.
3. Company, industry, and area practice
Since 1947, Bernard has assigned the disputed work in hundreds of
contracts throughout the State of Ohio to laborers. All estimates of
costs are based upon the use of laborers rather than fitters for this
work. It was not until a dispute in 1961, with Local 50 of the Plumb-
ers, which produced a work stoppage, that Bernard ever assigned the
work to other than laborers. The record is clear, in fact, that the only
times Bernard has assigned the work to trades other than laborers
occurred where Bernard was faced with a work dispute if it did not do
so. The record establishes that the other companies engaged in the
same business assign the work to laborers in the vast majority of cases.
It appears, also, that the only deviation from this practice occurs where
economic force is exerted. Some of the employers have never assigned
the work to fitters. Respondents can only point to a few such instances
as supporting their claim of company, industry, or area practice prior
to the instant dispute.
4. Efficiency of operation
It is clear from the record that each crew works as a unit, and that
the job of helping the welder may be assigned to any of the laborers
O Local 69 , United Association of Journeymen and Apprentices of the Plumbtng and
Pipefitting Industry, etc. (Bellezza Company, Inc.), 149 NLRB 599.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the crew. It is also clear that the welder's helper, when not actually
helping the welder, is assigned to other work. However, a pipefitter
assistant, who was a member of Plumbers, could not be assigned to the
additional labor of digging ditches, shoring, or filling. In fact, the
Plumbers specifically disclaim any interest in the latter types of work.
The Employer, therefore, if he were to use a fitter as "second man in
the ditch," would be required to fragmentize his operations with the
laborers performing all operations other than the handling of pipe and
the fitters confined solely to this operation. It is clear that, under such
fragmentation, the welder's assistant would not be engaged in any
work for considerable periods of time. The Employer's assignment of
the disputed work to laborers is, therefore, consistent with efficiency of
operations.
5. Skill required
It is evident from the record herein that the work in dispute is essen-
tially unskilled, generally requires a short time-from a few minutes
to 15 minutes or an hour-to learn and, at times, is assigned to the least
efficient member of the crew. The Plumbers do not claim than any par-
ticular apprenticeship training is required for the work. Rather, they
contend that its members are more competent to perform the work of
assisting the welder by virtue of their general training. However,
inasmuch as the particular work involved does not require the gamut
of skills acquired during apprenticeship training and is readily learned
by others, such contention is of little consequence herein. The Employ-
er's assignment of the work to laborers is consistent with the skills
involved.
6. The question of mootness
The Board has held that a jurisdictional dispute is not moot, even
though the particular work has been completed, where there is evidence
of similar disputes in the past and nothing to indicate that such dis-
putes will not occur in the future.10 In the instant case, the Company
has every expectation of performing work again in the areas of geo-
graphical jurisdiction covered by Respondents. Accordingly, we find
that the dispute is not moot and shall make the assignment of the dis-
puted work.
CONCLUSIONS AS TO THE MERITS OF THE DISPUTE
Upon consideration of all of the pertinent factors appearing in the
entire record, we shall assign the work in dispute to the laborers. They
are as competent in the performance of what is essentially unskilled
10 International Union of Operating Engineers, Local 66 (Frank P. Badolato & Son),
135 NLRB 1392, 1401.
LOCALS 224, 830 , UNITED ASSN. OF JOURNEYMEN, ETC. 911
work as the fitters who seek it and they have performed it to the satis-
faction of the Employer, who desires to retain them on his operations.
The present assignment of the disputed work to the laborers is con-
sistent with the Employer's past practice, and with that of other
employers engaged in the same operations in the area. The efficiency
with which the laborers may accomplish the integrated task of pre-
paring the trench, helping the welder in the ditch, and closing the ditch,
as contrasted with the fragmentation of the operation which would
occur should fitters be assigned this work, demonstrates the superior
claim of the laborers to the disputed work. We shall, accordingly,
determine the existing jurisdictional dispute by deciding that laborers,
rather than pipefitters, are entitled to the work in dispute. In making
this determination, we are assigning the disputed work to the employ-
ees of the Employer who are represented by the Laborers but not to that
Union or to 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 Bernard Pipe Line Company who are
represented by Locals 480, 758, and 894, International Hod Carriers'
Building and Common Laborers' Union of America, AFL-CIO, are
entitled to perform the disputed work of assisting the welder in the
welding of pipe in connection with the installation of gas distribution
lines.
2. Locals 224 and 830, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, are not entitled, by means proscribed
by Section 8(b) (4) (D) of the Act, to force or require the Employer
to assign any such disputed work within the area of their geographical
jurisdictions to their members rather than to laborers.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Locals 224 and 830, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, shall each notify the Regional
Director for Region 8, in writing, whether or not it will refrain from
forcing or requiring the Employer, Bernard Pipe Line Company, by
means proscribed by Section 8 (b) (4) (D) of the Act, to assign any
such work in dispute within the area of its geographical jurisdiction
to its members, rather than to employees represented by Locals 480,
758 and 894, International Hod Carriers' Building and Common
Laborers' Union of America, AFL-CIO.