Plumbers and Pipefitters Local 149

National Labor Relations Board - Board Decisions

Nov 10, 1972

200 N.L.R.B. 223 (N.L.R.B. 1972)

PLUMBERS AND PIPEFITTERS LOCAL 149 223
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the
United States and Canada , AFL-CIO, Local
Union 149 and H. E. Freitag , Inc. Case 14-CD-422
November 10, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed on April 7, 1972,1 by H. E. Freitag,
Inc. (herein called the Employer), alleging that
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, Local Union
149 (herein called the Plumbers or Respondent), had
violated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring the assignment of certain work described
below to employees represented by the Plumbers
rather than to employees represented by Laborers'
International Union of North America, AFL-CIO,
Local Union 171 (herein called the Laborers).
A hearing was held before Hearing Officer Neil E.
McDarby on May 11. The Employer and the
Laborers appeared at, and participated in, the
hearing. The Plumbers did not enter an appearance
or otherwise participate in the hearing, although duly
served with a copy of the Board's notice of hearing.
All parties in attendance at the hearing were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues. Following the hearing, none of the
parties 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 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 EMPLOYER
At the hearing it was stipulated that H. E. Freitag,
i Unless otherwise noted, all dates herein are in 1972.
2 Richard Walden, Laborers business manager, testified that on or about
February 22 at the prejob conference, when informed that the Employer
was going to perform the installation of the water and sanitary sewer lines,
Costagna stated:
First of all we are going to lay the claim. The Plumbers are laying the
Inc., an Illinois corporation with its principal office
and place of business located at Jacksonville, Illinois,
is a general contractor engaged in excavation,
demolition, and laying and installation of water and
sewer lines. During the last 12 months Freitag
purchased materials valued in excess of $50,000 from
suppliers located outside the State of Illinois, which
materials were shipped directly to its construction
sites located at points within the State of Illinois. We
find, accordingly, that the Employer is engaged in a
business affecting commerce within the meaning of
Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
in this proceeding.
II. THE LABOR ORGANIZATIONS
At the hearing it was stipulated, and we find, that
the Plumbers and the Laborers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is engaged in the business of
excavation, demolition, and laying and installation
of water and sewer lines . In the course of its business
the Employer accepted a subcontract from Paul
Piper Construction Company, Inc., to perform the
installation of sanitary sewers, water mains, storm
sewers, and site grading at Federal housing projects
in Mattoon, Illinois.
On February 22, a prejob conference was held at
the Mattoon housing projects. The basic trade unions
whose employees might be employed on the project
were represented. At the conference, Mike Costagna,
Plumbers assistant business agent, inquired as to who
was to perform the laying of water mains and
sanitary sewers. Upon being informed that the work
was to be performed by the Employer, Costagna
stated to Leslie Ankrom, the Employer's president,
"I'll not furnish you any men." 2 Later, during the
week of March 20, Costagna told Ankrom in a
telephone conversation that there would have to be a
meeting between them to arrive at a decision as to
who was to perform the work. When Ankrom stated
that the work had been assigned to the Laborers and
was in progress, Costagna told Ankrom that there
would be a picket line at the jobsite.
On or about March 22, the project was picketed by
the Plumbers with signs that bore the following
claim to the laying of all storm sewers , all sanitary sewers and all water
mains on this project. If we do not get this work , the laying of the water
mains, the storm sewers and the sanitary sewers, then the man [Ideal
Heating and Plumbing Company ] that's doing the plumbing on the job
will not get any plumbers.
200 NLRB No. 24
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legend: "H.E. Freitag, Inc. Has No Contract With
The Plumbers Local Union 149." Following the
commencement of the picketing, Costagna asked
Ankrom in a telephone conversation if he would
meet with him. Costagna received a negative reply.
Costagna then stated that the picket line-would stay
up and that there would be a work stoppage.
B. The Work in Dispute
The disputed work involved is the manual labor in
unloading and distributing materials for sewage and
water lines and laying storm and sanitary sewers and
water mains at the Federal housing projects located
at Ninth Street and Rudy Avenue and at Prairie
Street and First Street in Mattoon, Illinois.
C. The Contentions of the Parties
The Employer's position is that its employees
represented by the Laborers have always, with
infrequent exceptions in the past, unloaded and
distributed materials for sewage and water lines and
laid storm and sanitary sewers and water mains. The
Laborers contends that the work has historically
been assigned to its members and that it continues to
claim the work on behalf of its members. The
Plumbers has made no statement of position.
D. Applicability of the Statute
Before the Board may proceed with the 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.
As previously indicated, a prejob conference was
held at Federal housing projects in Mattoon, Illinois,
and was attended by all the basic trade unions that
might have employees on the project. The Plumbers
assistant business agent, Mike Costagna, inquired as
to who was to perform the laying of water mains and
sanitary sewers. Upon being informed it was to be
performed by the Employer, Costagna stated to
Ankrom, the Employer's president: "I'll not furnish
you any men."
During the week of March 20, Costagna stated in a
telephone conversation that he would have to have a
meeting with Ankrom to arrive at a decision as to
who was to perform the work. Ankrom stated the
work had been assigned to the Laborers. Costagna
told Ankrom that there would be a picket line at the
jobsite.
On or about March 22, the project was picketed by
the Plumbers with signs that bore the following
3 There is no evidence that the parties have agreed to be bound by any
voluntary method for adjusting such dispute.
4 International Association of Machinists, Lodge No 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402.
legend: "H.E. Freitag, Inc. Has No Contract With
the Plumbers Local Union 149." Within a few days
following the commencement of the picketing,
Costagna asked Ankrom, in a telephone conversa-
tion, if he would meet him. Ankrom replied in the
negative. Costagna then stated that the picket line
would stay up and there would be a work stoppage.
On the basis of the entire record, we conclude 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 under
Section 10(k) of the Act.3
E. 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 relevant factors. The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on
commonsense and experience reached by balancing
those factors involved in a particular case 4
1. The collective-bargaining agreements
The Employer is party to collective-bargaining
agreements with the Laborers5 which arguably cover
the work in dispute. The Employer has no collective-
bargaining agreements with the Plumbers.
2. Company and area practices
The record indicates that it has been the Employ-
er's practice to assign the disputed work to the
Laborers.
The record further indicates that it has been the
area practice for employees represented by the
Laborers to do similar work; namely, to unload and
distribute materials for sewage and water lines and
lay storm and sanitary sewers and water mains.
3. Relative skills, economy, and efficiency of
operation
The record indicates that the Employer considered
the use of laborers more efficient and economical,
since every laborer who works on a job is a
production man able to perform numerous functions.
It is also the Employer's position that the skills of the
laborers are satisfactory, and their use results in
considerable savings being passed on to the consum-
er.
5 The record indicates two collective-bargaining agreements: one
effective from April 1, 1970, to March 31, 1972, and the other effective from
April 1 , 1970, to March 31, 1973.
PLUMBERS AND PIPEFITTERS LOCAL 149 225
Conclusion
Having considered all pertinent factors, we con-
clude that the factors, including the collective-bar-
gaining agreements presently in existence between
the Employer and the Laborers, company practice,
and efficiency of operation, favor awarding the work
to the employees represented by the Laborers, and
we shall determine that they are entitled to perform
the work in dispute. Accordingly, on the basis of the
entire record, we shall determine the existing jurisdic-
tional controversy by awarding to the employees
represented by the Laborers, rather than to individu-
als represented by the Plumbers, the manual labor
involved in unloading and distributing materials for
sewage and water lines and laying storm and sanitary
sewers and water mains at the housing projects
located at 9th Street and Rudy Avenue and at Prairie
Street and First Street in Mattoon, Illinois. In
making this determination, we are assigning the work
to employees who are represented by Local 171,
Laborers, and not to that Union or its members. Our
present determination is limited to the particular
dispute which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, and upon 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 of H. E. Freitag, Inc., who are
currently represented by Local 171, Laborers' Inter-
national Union of North America, AFL-CIO, are
entitled to perform the manual labor involved in
unloading and distributing materials for sewage and
water lines and laying storm and sanitary sewers and
water mains at the housing projects located at 9th
Street and Rudy Avenue and at Prairie Street and
First Street in Mattoon, Illinois.
2. United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO, Local
Union 149, is not entitled, by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require H.
E. Freitag, Inc., to assign such disputed work to
individuals represented by it.
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, AFL-CIO, Local Union 149, shall notify the
Regional Director for Region 14, in writing, whether
or not it will refrain from forcing or requiring H. E.
Freitag, Inc., by means proscribed in Section
8(b)(4)(D), to assign the disputed work to its
members rather than to employees represented by
the Laborers.