Plumbers and Pipefitters, Local 178

National Labor Relations Board - Board Decisions

Sep 27, 1979

245 N.L.R.B. 463 (N.L.R.B. 1979)

PLUMBERS AND PIPEFITTERS. LOCAL 178
United Association of Journeymen and Apprentices,
Plumbers and Pipefitters, Local 178, AFL-CIO and
Garney Companies, Inc. and Laborers Local 676,
affiliated with Laborers International Union of
North America, AFL-CIO. Case 17-CD-245
September 27, 1979
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
the filing of a charge by Garney Companies, Inc.,
herein called the Employer, alleging that United As-
sociation of Journeymen and Apprentices, Plumbers
and Pipefitters, Local 178, AFL-CIO, herein called
the Plumbers, had 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 the Plumb-
ers rather then to employees represented by Laborers
Local 676, affiliated with Laborers International
Union of North America, AFL-CIO, herein called
the Laborers.
Pursuant to notice, a hearing was held before Hear-
ing Officer Robert A. Fetsch on June 28, 1979. All
parties appeared and were afforded full opportunity
to be heard, to examine and cross-examine witnesses,
and to adduce evidence bearing on the issues. There-
after, the Employer, the Laborers. and the Plumbers
filed briefs.
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 au-
thority in this proceeding 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.
Based upon the entire record in this case and the
briefs of the parties, the Board makes the following
findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Missouri corporation with its office and
plant located in Kansas City, Missouri, is engaged in
business as a utility contractor and that during 1978,
a representative period, it purchased materials and
supplies valued in excess of $50,000 directly from
suppliers located outside the State of Missouri and
also performed services valued in excess of $50,000
for customers located outside the State of Missouri.
The parties stipulated, and we find, that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. We further find that it
will effectuate the purposes of the Act to assert juris-
diction herein.
II. THE L.ABOR ORGANIZATIONS
The parties stipulated. and we find, that the Plumb-
ers and the Laborers are labor organizations within
the meaning of Section 2(5) of the Act.
Iii. THE DISPUTE
A. Background and Facts o' the Dispute
The Employer was awarded a contract with the
city of Springfield. Missouri. in August 1978 to per-
form work on two projects connected with the mu-
nicipal sewage system: the construction of the James
River pump station located in Southern Springfield.
Missouri, and the installation of a forced main sewer
line running from the pump station for about 2-1/2
miles along the James River. The Employer's me-
chanical division is responsible for the construction at
the pump station, while its utilities division is respon-
sible for the installation of the sewer line. The Em-
ployer began work in early 1979 on the building con-
struction site of the pump station, where it uses
employees represented by the Plumbers to perform
plumbing work, including the installation of the grav-
ity sewer lines coming into the building and of the
forced main sewer lines going out of the building. The
plumbers perform work on these sewer lines, how-
ever, only as far as either the property line or the first
connection. There is no dispute as to the Employer's
assignment of plumbing work at the pump station to
employees represented by the Plumbers.
The dispute in this case involves the installation of
the forced main sewer line away from the pump sta-
tion. On March 2, 1979, the Employer, in writing,
assigned the work of unloading and installing the 24-
inch ductile cast iron pipe for the forced main sewer
line to employees represented by the Laborers and
also signed a one-job contract with the Laborers cov-
ering the forced main part of James River pump sta-
tion project only. Although employees represented by
the Laborers unloaded some pipe for the forced main
in February and March 1979, the Employer did not
begin installation of the forced main until April 1979.
On April 17. 1979, Business Manager Jack Bow-
man of the Plumbers told Charles Sapp, the Employ-
er's job superintendent for the James River forced
main project, that the Plumbers was discussing with
the Laborers which Union would do the work of in-
245 NLRB No. 63
463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stalling the pipe for the forced main. As a result of
discussions between Bowman and Business Manager
Bill Seaton of the Laborers, Bowman submitted the
dispute for consideration by an International vice
president of each respective Union pursuant to the
provisions of a 1941 agreement between the two In-
ternational Unions concerning, inter alia, the division
of work on sewers and water mains. The Interna-
tional vice presidents met on May 10, 1979, and
awarded the work to the Plumbers. On May 15, 1979.
Bowman visited the jobsite and told Sapp the Plumb-
ers was claiming the disputed work of laying the pipe
and making the joints on this site. Sapp responded
that he would not change the present assignment of
the work to the Laborers. On May 16, 17, and 18.
1979, the Plumbers picketed the forced main jobsite.
The Plumbers then submitted the dispute for consid-
eration by the Impartial Jurisdictional Disputes
Board for the construction industry although the Em-
ployer was notified that the dispute would be consid-
ered on June 14, 1979, by the Impartial Jurisdictional
Disputes Board, it declined to become a party to the
proceedings. On June 15, 1979, the Impartial Juris-
dictional Disputes Board awarded the disputed work
to the Plumbers.
The Employer presently uses a crew of three labor-
ers and one operating engineer to install the forced
main sewer pipe. The operating engineer operates
heavy equipment, two laborers work in the ditch, and
one laborer works on top of the ditch. The operating
engineer unloads the pipe at the jobsite using a high-
loader, excavates the ditch with a backhoe, dumps
crushed rock into the ditch with a scoop, lowers the
pipe into the ditch suspended by a cable from his
equipment, and fills in the ditch after the pipe in laid.
The two laborers in the ditch level out the bottom of
the ditch with hand tools; stand at either end of the
pipe to guide it into place by hand when it is being
lowered; make the joint between two pieces of pipe
by placing a gasket into the belied end of one pipe,
lubricating or "soaping" the gasket and both ends of
the pipe, and guiding the two pieces of pipe together;
unhook the cable around the pipe; and pack the
crushed rock into place around the pipe using hand
tools. The labor outside the ditch assists the operating
engineer in unloading the pipe, in moving the pipe to
the ditch, and in dumping crushed rock into the
ditch; attaches the cable to the pipe in preparation for
lowering it; guides the pipe into the ditch by hand;
and performs any necessary drilling and blasting of
rock.
B. The Work in Dispute
The work in dispute herein is the installation of 24-
inch ductile cast iron pipe for the forced main sewer
line running from the James River pump station
along the James River located in Southern Spring-
field, Missouri.
C. Contentions of the Parties
The Plumbers contends that the work should be
assigned to employees it represents, arguing that the
1941 agreement between the two Unions, the award
of the International vice presidents of the two
Unions, and the award of the Impartial Jurisdictional
Disputes Board favor such a result.
The Laborers contends that the work should be
awarded to employees represented by it because of
the following factors: the collective-bargaining agree-
ment, the Employer's assignment and preference,
relative skills, efficiency and economy of operation,
employer, area, and industry practice, and safety of
operation. The Laborers asserts that the alleged
agreement between the Unions is not dispositive of
the issues in this case and that the unilateral submis-
sion of the dispute to the Impartial Jurisdictional Dis-
putes Board is not binding on the parties in this case.
The Employer contends that the collective-bargain-
ing agreement, the Employer's assignment and prefer-
ence, efficiency and economy of operation, employer,
area, and industry practice, prevailing wage specifica-
tions under the Federal Davis-Bacon Act, and the
interests of labor stability in the heavy construction
industry all favor assignment of the work to employ-
ees represented by the Laborers. The Employer as-
serts that the purported 1941 agreement and the
award of the Impartial Jurisdictional Disputes Board
are entitled to little or no weight in the determination
of this dispute.
D. Applicability of the Statute
Before the Board may proceed to 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) of the Act has been
violated and that the parties have no agreed-upon
method for the voluntary adjustment of the dispute.
As to the statutory requirement of reasonable cause
to believe that Section 8(b)(4)(D) has been violated,
the parties stipulated that on May 14, 1979, the
Plumbers began picketing at the Employer's James
River forced main sewer line project, with an object
of forcing or requiring the Employer to reassign the
work of installing the 24-inch ductile cast iron forced
main sewer line at the Employer's James River proj-
ect from employees represented by the Laborers to
individuals represented by the Plumbers. On May 15,
1979, and before the commencement of the picketing,
the Plumbers had demanded that the Employer as-
464
PLUMBERS AND PIPEFITTERS, L.O(AI. 178
sign the work in question to employees represented
by the Plumbers rather than to employees represented
by the Laborers. Based on the foregoing, and on the
record as a whole, we find that an object of the
Plumbers' picketing was to force or require the as-
signment of the disputed work to employees repre-
sented by it. Accordingly, we find that reasonable
cause exists to believe that Section 8(b)(4)(D) of the
Act has been violated.
As to whether an agreed-upon method exists for
the voluntary adjustment of the dispute, the Plumbers
contends that the 1941 agreement between the two
Unions provides such a method, which is the submis-
sion of the dispute to the general presidents of both
International Unions for adjustment. The Laborers,
however, asserts that the 1941 agreement has no con-
tinuing force or effect and, moreover, does not pro-
vide for submission of disputes to the Impartial Juris-
dictional Disputes Board. While there was evidence
presented to indicate that after reviewing the 1941
agreement the Laborers acquiesced in the submission
of the dispute to the International vice presidents of
both Unions, no evidence was presented to indicate
that the Laborers consented to or participated in the
proceedings before the Impartial Jursidictional Dis-
putes Board, which is not mentioned in the 1941
agreement as a method to be used in resolving juris-
dictional disputes. In any event, the evidence is clear
that the Employer was not a party to the 1941 agree-
ment and that there is no provision in the contract
between the Employer and the Laborers for the sub-
mission of jurisdictional disputes to the Impartial Ju-
risdictional Disputes Board. Since the Employer, a
necessary party, is not bound to submit the dispute to
either the International Unions or to the Impartial
Jurisdictional Disputes Board, we find that no
agreed-upon method exists for the voluntary adjust-
ment of the dispute to which all parties are bound.
Accordingly, we find the dispute is properly before
the Board for determination under Section 10(k) of
the Act.
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.
1. Certification and collective-bargaining agreements
Neither of the labor organizations involved herein
has been certified by the Board as the collective-bar-
gaining representative for a unit of the Employer's
employees, so that the claims of the Laborers and the
Plumbers are unaffected by this factor.
The Employer and the laborers are parties to a
one-job contract covering the torced main part of the
James River pump station project only, in which the
Employer agrees to be bound to the association con-
tract between the Associated General Contractors of
Missouri and the Laborers, known as the Heavy and
Highway agreement. The Heavy and Highway agree-
ment states that it covers: "all private and public con-
struction, with the exception of building construction
. . [including] all work performed in the construction
of ... utilities, sewer lines, sewage disposal plants,
purifying plants, water lines, water pollution plants,
pumping stations .... " In the agreement, "work" is
defined to include "laying. jointing, and pointing of
all sewer tile, handling, distributing and laying water
lines and making of all joints ... ."
Although there have apparently been some nego-
tiations between the Plumbers and representatives of
the Employer's mechanical division concerning a col-
lective-bargaining agreement, the record is clear that
at the time of the hearing in this case no contract had
been signed. Further, it is undisputed that these nego-
tiations concerned only plumbing work being per-
formed at the James River pump station itself and not
work on the forced main sewer line project.
We find that the collective-bargaining agreement
between the Laborers and the Employer supports an
award of the work to the employees represented by
the Laborers.
2. Employer's assignment and preference
On March 2, 1979. the Employer assigned the dis-
puted work to employees represented by the Labor-
ers. The record indicates that the Employer maintains
a preference for this assignment. These factors sup-
port an award of the work to the employees repre-
sented by the lIaborers.
3. Relative skills
The record establishes that both groups of employ-
ees can perform the disputed work. There is no evi-
dence that either group possesses significantly supe-
rior skills related to the performance of this work.
Therefore, this factor favors neither group of employ-
ees.
4. Economy and efficiency of operations
The record establishes that laborers presently per-
form the disputed work in a competent manner to the
satisfaction of the Employer. There is no contention
by the Plumbers that employment of plumbers to do
the disputed work would result in greater efficienc or
in an economic benefit t!.r the Employer. Rather, the
46S
I)l:((ISIONS OF NAI()ONAL I.ABOR RELATIONS BOARD
record revealk that if the Employer used plumbers to
do the disputed work the result would be a consider-
athl more inefficient and uneconomical operation,
hecausc it would have to use four employees instead
olf its current three-man crew to install the pipe. It is
undisputed that the Plumbers has only claimed that
part of the work now being performed by laborers
which inxolvles lowering the pipe into the ditch and
making the joint. The Plumbers has not claimed the
other work now performed by laborers, such as un-
loading pipe. drilling and blasting rock, and grading
the bed of the ditch. Plumbers Business Manager
Bowma n testified that he had requested the Employer
to assign two plumbers to the job. one to work outside
the ditch attaching the cable to the pipe and guiding
the pipe into the ditch and the other to work in the
ditch making the joints. The Employer witnesses tes-
tified that it ould still be necessary to employ two
laborers on the job. One would work in the ditch
doing the grading and guiding the pipe into place.
l'he other would work outside the ditch unloading
pipe. assisting the operating engineer. and performing
any drilling and blasting. Furthermore, the record re-
veals that the two plumbers would have relatively
long intervals between periods when they were actu-
ally performing the work of guiding the pipe and
making the joint, when they would have to wait idly
while the laborers prepared the ditch.
Inasmuch as the evidence indicates that it would be
more efficient and economical to assign the work to
employees represented by the I.aborers, we find that
these factors favor such an assignment.
5. Employer, area, and industry practice
The record establishes that since 1970 the Em-
ployer has performed 13 to 14 jobs in the States of
Missouri. Kansas Arkansas, and Texas. on which the
work of installing ductile cast iron sewer lines was
assigned to and performed by laborers represented by
various different local unions affiliated with Laborers
International Union of North America. AFL-CIO.
Except for the present job, only one of these jobs was
located within the geographical jurisdiction of the
Plumbers, and that was in Republic. Missouri, in
1970. Employees represented by the Laborers were
used to install a 12-inch ductile cast iron forced main
on that job. It is undisputed that the Employer has an
established practice of using only laborers to install
pipe. regardless of whether the pipe is metallic or not,
on all of its sewer line projects, which number over
100 per year. Further, it is undisputed that the Em-
ployer has never employed plumbers to perform the
installation of any pipe on any of its sewer line proj-
ects.
The record also establishes that other emploNers
within the geographical jurisdiction of the Plumbers
have consistently used only employees represented by
the Laborers to install sewer lines of all types. includ-
ing ductile cast iron pipe. The uncontradicted testi-
mony indicates that employees represented by the La-
borers are presently installing ductile cast iron pipe
on four sewer line projects within the Plumbers' juris-
diction. The Plumbers presented evidence of only one
job on which its members installed ductile cast iron
sewer pipe and that job involved only work on a
building construction site.
In addition, the record contains eight letters, sent
by various contractors, which assigned the work in
dispute to the Laborers. Although two of the letters of
assignment were written after the Plumbers claimed
the work involved in this case, all of the letters re-
ferred to jobs occurring within the geographical juris-
diction of the Plumbers and the Laborers.
Thus, employer, area, and industry practice is a
factor which strongly supports and award of the dis-
puted work to employees represented by the Labor-
ers.
6. Awards by the International vice presidents and
the Impartial Jurisdictional Disputes Board
Although, as indicated in section D above, we do
not consider these awards binding on the Employer.
we do consider the awards to be factors in determin-
ing the proper assignment of the work in dispute. In
view of all the circumstances in this case, however, we
are of the opinion that these awards should not be
given controlling weight. Thus, the record does not
indicate what evidence, if any. was presented in the
proceedings which formed the basis for these awards;
there is no written record of the award made by the
International vice presidents; and the award of the
Impartial Jurisdiction Disputes Board consists simply
of a letter setting forth the ultimate decision, which
does not explain the reasoning followed or the sup-
porting data, so that we are unable to evaluate the
award according to our own standards to determine
the degree of deference to which it is entitled.' This
factor, therefore, favors neither group of employees.
7. The 1941 agreement
The Plumbers relies heavily on the 1941 agreement
between the two Unions to support its claim to the
disputed work. The agreement, by its own terms,
however, does not resolve the issue in this case as to
the assignment of the work of installing metallic
I See International Union o Operating Engineers. Local Union No 158,
.4FI. (IO(E C Ernst. In , 172 NLRB 1667, 1670 ( 1978).
PLtUMBERS AND PIPEFIFIERS. LOCAI. 1?
sewer pipe, which is mentioned nowhere in the docu-
ment. Thus, the agreement states that it concerns:
"all work on subways, tunnels. highway, viaducts.
streets and roadways in connection with sewers and
water mains." It divides the work between the two
Unions as follows:
All the leveling, caulking and making of all joints
by any mode or method on water mains, gas.
gasoline and transportation lines is the work of
[the plumbers] ....
All of the laying of clay, terra cotta, ironstone
vitrified concrete or non-metallic pipe and the
making of joints for main and side sewers and
drainage only is the work of the laborers.
Furthermore, it appears that the two Unions have
had a longstanding controversy over the division of
this particular work which has never been effectively
resolved by their interpretation of this agreement.2 Fi-
nally, no evidence was presented to indicate that this
agreement remains in effect without modification.
Therefore, we find that this factor favors neither
group of employees.
Conclusion
Upon the record as a whole, and after consider-
ation of all relevant factors involved, we conclude
that the Employer's employees who are represented
by the Laborers are entitled to perform the work in
dispute. We reach this conclusion relying on the col-
2See, e.g.. Plumbers and Steamfitters Local Union No. 157 of the United
Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL CIO (Curry Construction
Company), 191 NLRB 302 (1971): Local No. 7. Albany, New York and Vicin-
ity, United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry (James H. Maloy, Inc.), 150 NLRB 461. 466 (1964); Local
69, United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL CIO (Belle::a
Company, Inc.), 149 NLRB 599. 602 (1964).
lective-bargaining agreement. the Lmpplocr', ashign-
ment and preference. the econlom and cticicnc ot
operations, and the emplomer. area, and industr\
practice, all of which favor an aard of the disputed
work to employees represented bh the lb.horcrs In
making this determination. we are assigning the \ ork
to employee represented b\ the l.aborers but nlot to
that Ilnion or its members. The determination in thil
case is limited to the particular controx ers x lhich
gave rise to this proceeding.
DETERMINA I ION OF I)IS1 l'l
Pursuant to Section O0(k) of the National Liabor
Relations Act, as amended. and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of Garney Companies. Inc.. who are
represented by Laborers Local 676, affiliated with l.a-
borers International Union of North America. AFL
CIO, are entitled to perform the installation of 24-
inch ductile cast iron pipe for the forced main sewer
line running from the James River pump station
along the James River located in Southern Spring-
field, Missouri.
2. United Association of Journeymen and Appren-
tices, Plumbers and Pipefitters, Local 178, AFL ('10.
is not entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require Garne5
Companies, Inc., to assign the disputed work to em-
ployees represented by that labor organization.
3. Within 10 days from the day of this Decision
and Determination of Dispute. United Association of
Journeymen and Apprentices, Plumbers and Pipefil-
ters, Local 178. AFL.CIO, shall notify the Regional
Director for Region 17, in writing, whether or not it
will refrain from forcing or requiring Garney Compa-
nies, Inc., by means proscribed by Section 8(b4)(D)
of the Act, to assign the disputed work in a manner
inconsistent with the above determination.