Pipefitters Local 149

National Labor Relations Board - Board Decisions

Aug 18, 1972

198 N.L.R.B. 994 (N.L.R.B. 1972)

994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the
United States and Canada , Local Union 149,
AFL-CIO (Verne E. Scott d/b/a Verne Scott
Drainage) and Laborers International Union of
North America, Local 703, AFL-CIO-CLC
Laborers International Union of North America, Local
703, AFL-CIO-CLC (Frank J. Strahl & Sons,
Inc.) and United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, Local
Union 149, AFL-CIO. Cases 38-CD-76 and
3 8-CD-77
August 18, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Laborers International Union of
North America, Local 703, AFL-CIO-CLC, herein
called the Laborers, on March 23, 1972, alleging that
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada, Local Union 149,
AFL-CIO, herein called the Plumbers, had violated
Section 8(b)(4)(D) of the Act, by threatening,
coercing, and restraining Verne Scott Drainage,
herein called Scott, and Frank J. Strahl & Sons, Inc.,
herein called Strahl, with an object of forcing Scott
and Strahl to assign certain work to employees
represented by the Plumbers rather than to employ-
ees represented by the Laborers, and charges filed by
the Plumbers on April 4, 1972, alleging that the
Laborers had violated Section 8(b)(4)(D) of the Act
by threatening, coercing, and restraining Scott and
Strahl with an object of forcing them to assign
certain work to employees represented by the
Laborers rather than to employees represented by
the Plumbers.
Pursuant to notice, a hearing was held before
Hearing Officer Stephen S. Shostrom on April 17,
1972. All parties 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. The rulings of the Hearing
Officer made at the hearing are free from prejudicial
1 International Brotherhood of Electrical Workers, Local No 349 (Frank
Schafer, Inc), 127 NLRB 210, Eau Claire and Vicinity Building and
Construction Trades Council (St Bridget's Catholic Congregation, Inc), 122
error and are hereby affirmed. The Plumbers has
filed a brief which has been duly considered.
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.
1. THE BUSINESS OF THE COMPANIES
Verne E. Scott d/b/a Verne Scott Drainage is a
sole proprietorship engaged in the business of
drainage construction. He testified that, during the
past year, he received supplies valued at between
$40,000 and $50,000 from points outside the State of
Illinois.
Strahl is an Illinois corporation engaged in the
construction industry in and around Champaign,
Illinois. During the past year, its volune of business
was approximately $2 million and it purchased goods
valued in excess of $50,000 from suppliers outside the
State of Illinois.
We find that both companies are engaged in
commerce and that, as Strahl clearly meets the
Board's jurisdictional standard for nonretail enter-
prises,' it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Laborers and the Plumbers are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background
Strahl is the plumbing contractor on the Champ-
aign County Nursing Home construction project in
Urbana, Illinois. On February 16, 1972,2 Strahl
subcontracted the installation of the sanitary and
storm sewer work on the project to Scott. They did
not discuss the question of which craft or class of
employees would perform this work. However, Scott
had bid for the subcontract on the assumption that
he would assign the work to laborers, in accordance
with his longstanding practice. He made a written
assignment of the work to "the laborers of . . . Local
703" on February 28.
Meanwhile, the business agent of the Plumbers,
upon being informed by Strahl that the work had
been subcontracted to Scott, told Strahl that if
plumbers could not do all of the plumbing on the
job, they would not do any of it.3 The business agent
of the Laborers denied making similar threats to
NLRB 1341
2 All dates are 1972 unless otherwise indicated
3 The plumbers were needed for installations inside the building, which
198 NLRB No. 140
PIPEFITTERS LOCAL 149
Strahl . However , in a letter to the Plumbers'
International president , dated February 29, Strahl
stated that "the plumbing business agent . . . says
there will be no plumbers for the job if this tile is laid
with laborers and the laborers business agent says
there will be no laborers for this project if the
plumbers lay the tile ." In addition , Scott testified that
Laborers ' Business Manager Johnson told him that,
if plumbers were used , the job would probably be
picketed.
On March 3 , Strahl wrote Scott a letter stating that
he had requested , and would abide by, decisions of
the state plumbing inspector and of the two Interna-
tional Unions concerning the performance of the
disputed work , and asking Scott not to do any more
sewer work on the project in the meantime. No
decision was reached by the International Unions.
Scott testified that a state plumbing inspector
indicated that the disputed work should be assigned
to plumbers, but the testimony is in conflict as to
whether the inspector referred to the state licensing
law,4 and such law was not introduced into evidence.
On March 9 , Strahl informed Scott that it could
not afford a work stoppage and directed him to hire
plumbers to do the disputed work and to notify
Strahl that he would do so. On March 16, having
received no reply from Scott , Strahl informed him
that the subcontract was terminated . On the same
day, Strahl asked the Plumbers to furnish employees
to lay the sewer pipe . In a letter to the Laborers the
next day , Strahl explained that it had been unable to
negotiate a compromise or to get the International
Unions to settle the dispute. The Laborers later
offered to furnish employees for other work on the
project if Strahl signed a contract, and did furnish an
employee after a contract was signed on March 28.
However , the laying of the sewer pipe had not
commenced as of the time of the hearing.
The national referee of the Building and Construc-
tion Trades Department , AFL (now AFL-CIO),
ruled in 1945 that the laying of lateral sewer pipe
from a main sewer into a dwelling , or from inside the
property line to the dwelling , should be done by, or
under the supervision of, members of the Plumbers.
In 1965 , the Plumbers and the Laborers reaffirmed
the validity of this ruling and the 1918 and 1941
agreements on which it was based . There is no
evidence that Scott of Strahl ever agreed to abide by
the 1945 ruling or the prior and subsequent agree-
ments.
had to be made by licensed plumbers The dispute is over the installation of
lateral sewer lines running from the building to the main sewer line in the
street
4 According to Scott , the state plumbing inspector did not discuss the
995
B. The Work in Dispute
The dispute is over the installation of lateral sewer
lines , running from the building to the main sewer
line in the street, on the Champaign County Nursing
Home construction project in Urbana, Illinois.
C. Contentions of the Parties
The Plumbers contends that there is no jurisdic-
tional dispute properly before the Board, since the
Plumbers has not communicated with Scott in any
way and Strahl is now to perform the work and has
assigned it only to plumbers. According to the
Plumbers, Strahl should be free to make whatever
work assignment it desires and should be free from
pressure to subcontract work to Scott. On the merits,
the Plumbers argues that the 1965 agreement
between the two International Unions and the 1945
decision of the national referee awarding the disput-
ed work to plumbers are binding.
The Laborers argued at the hearing that the
agreement between the International Unions had not
been observed in this area and that the area practice
of using laborers to perform the disputed work
should be controlling. It contended that Strahl's
cancellation of the subcontract with Scott and
assignment of the work to plumbers should be
disregarded, since they were the result of coercion by
the Plumbers.
Scott testified that he considered his contract with
Strahl to be still in effect and that he remained ready
to perform it. He indicated that he still wished to
assign the disputed work to laborers.
Strahl did not specifically take a position on the
merits of the dispute, but stated that its assignment
of the work to plumbers had been based on the state
plumbing inspector's indication that the work should
be done by plumbers, as well as on the Plumbers'
threat.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a 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, and
that there is no agreed-upon method for the
voluntary adjustment of the dispute. As to the latter,
while the Plumbers contended at the hearing that it
and the Laborers had agreed to the resolution of
jurisdictional disputes by the National Joint Board
for the Settlement of Jurisdictional Disputes, there is
state licensing law, but expressed the view that the Plumbers ' business agent
would insist that plumbers be used However, Strahl stated at the hearing
that the state plumbing inspector did refer to the state licensing law
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no evidence that Scott or Strahl has agreed to submit
jurisdictional disputes to the Joint Board. Similarly,
there is no evidence that Scott of Strahl ever agreed
to abide by the 1945 ruling by the national referee of
the Building and Construction Trades Department
awarding the disputed work to plumbers or the prior
and subsequent agreements by the International
Unions. Accordingly, we find that the parties have
not agreed upon a method for the voluntary
adjustment of the dispute.
We reject the Plumbers' contention that the dispute is
not properly before us because Strahl is the employer for
work assignment purposes and has assigned the work only
to plumbers. As has been indicated above, there is
evidence that each Union threatened Strahl that it would
not supply anyone to work on the project unless the
disputed work was assigned to its members, and that the
Laborers threatened Scott that the job would be picketed
if plumbers were used. Such threats clearly had an object
proscribed by Section 8(b)(4)(D) of the Act. At the time
the Plumbers demanded of Strahl that the disputed work
be assigned to plumbers, Strahl had subcontracted such
work to Scott, who employed laborers. The Plumbers did
not object to the subcontracting or demand that the
subcontract be terminated, but insisted only that the work
in question be performed by plumbers rather than
laborers. Strahl terminated the subcontract only when
Scott failed to comply with this demand. The dispute was
thus essentially over the assignment of work to members
of one rather than another trade, craft,5 or class.
Accordingly, we find that there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has occurred
and that the dispute is properly before the Board for
determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after
giving due consideration to all relevant factors. The
Board has held that its determination in jurisdiction-
al dispute cases is an act of judgment based on
commonsense and experience in balancing various
factors.6
A number of the factors often relied on by the
Board are of little assistance in determining the
dispute herein. Thus, there is no relevant Board
certification and, while each Union introduced into
evidence a multiemployer contract assigning the
laying of sewer pipe to it, there is no evidence that
Scott or Strahl is a member of either of the
multiemployer associations involved or has signed
either of the contracts. The Unions' agreement to
follow the ruling of the national referee of the
Building and Construction Trades Department,
which awarded the disputed work to plumbers,
cannot be given controlling weight here, as it is clear
that the ruling and agreement were not observed in
this area and neither Scott nor Strahl ever agreed to
abide by them. We cannot, on this record, view the
state plumbing inspector's opinion that the work
should be done by plumbers as conclusively favoring
the plumbers or precluding an award in favor of the
Laborers, since it has not been shown that state law
requires that the work be done by plumbers.7 Finally,
the fact that Strahl assigned the disputed work to
plumbers after canceling the subcontract with Scott
cannot be given controlling weight, as such assign-
ment was made only after threats by the Plumbers;
prior to such threats, Strahl had subcontracted the
work to Scott and did not object to Scott's use of
laborers.
There remain the factors of area practice and skills.
It is clear that area practice favors laborers. Scott
testified that, during his 20 years in the drainage
business, he had always used laborers to lay drainage
tile. Several other contractors gave similar testimony.
The testimony is in conflict with respect to Strahl's
practice. The Plumbers' business agent testified that
Strahl had never assigned the laying of sewer pipe to
anyone but plumbers, whereas the Laborers' business
agent testified that Strahl used laborers in the
majority of cases . Strahl's president, although called
as a witness by the Laborers, was not asked about his
company's practice.
Several contractors testified that they used laborers
to lay sewer pipe because they perform that work
better than plumbers do, especially under adverse
conditions. They stated that laborers have greater
experience, and plumbers prefer to work inside
buildings rather than in the ditches in which sewer
pipe must be laid. Thus, the superior skills of laborers
favor an award to employees represented by the
Laborers.
CONCLUSIONS
Upon consideration of all relevant factors, we
conclude that the work in dispute should be awarded
to employees represented by the Laborers. This
award is in accordance with the overwhelming area
practice and is supported by laborers' superior
performance of the work in question. The factors
which support a contrary result do not, under the
circumstances of this case, outweigh these considera-
tions.
Accordingly, we shall determine the dispute by
awarding the disputed work to employees represent-
5 United Brotherhood of Carpenters and Joiners of America, Local 581 (Ora 7 Cf Local 5, United Association of Journeymen and Apprentices of the
Collard), 98 NLRB 346,349 Plumbing and Pipe Fitting Industry of the United States and Canada,
6 International Association of Machinists, Lodge No 1743, AFL-CIO (J AFL-CIO (Arthur Venneri Co ), 145 NLRB 1580, 1597.
A Jones Construction Co), 135 NLRB 1402, 1411
PIPEFITI'ERS LOCAL 149 997
ed by the Laborers . In making this award, we are
assigning the work to employees represented by the
Laborers , but not to the Laborers or its members.8
Our present determination is limited to the particular
controversy which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
1. Employees represented by Laborers Interna-
tional Union of North America, Local 703,
AFL-CIO-CLC, are entitled to perform the work of
installing lateral sewer lines running from the
buidling to the main sewer line in the street on the
Champaign County Nursing Home construction
project in Urbana, Illinois.
2. United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of
the United States and Canada, Local Union 149,
AFL-CIO, is not entitled , by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require
Frank J. Strahl & Sons, Inc., to assign the above
work to employees represented by the Plumbers.
3. Within 10 days from the date of this Decision
and Determination of Dispute, United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Cana-
da, Local Union 149, AFL-CIO, shall notify the
Officer-in-Charge for Subregion 38, in writing,
whether or not it will refrain from forcing or
requiring Frank J. Strahl & Sons, Inc., by means
proscribed by Section 8(b)(4)(D) of the Act, to assign
the work in dispute in a manner inconsistent with the
above determination.
8 This award is not to be construed as passing upon the status of Strahl's
subcontract with Scott See Ora Collare4 supra, fn 4 at 350.