Plumbers & Fitters Local 761, Etc.

National Labor Relations Board - Board Decisions

Aug 21, 1963

144 N.L.R.B. 133 (N.L.R.B. 1963)

PLUMBERS & FITTERS LOCAL 761, ETC. 133
As indicated above, the alleged unlawful statements of Walker to the employees,
even if they were actually made, despite a finding here to the contrary, do not warrant
a remedial order in view of their isolated character and because they would not
reasonably be calculated to have a significant effect on the employees' organizational
rights. Middletown Manufacturing Company, Inc., 141 NLRB 234.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Nevada Tank and Casing is a Nevada corporation engaged in commerce and
in a business affecting commerce within the meaning of the Act.
2. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths &
Forgers, Local #10, AFL-CIO, is a labor organization within the meaning of the
Act.
3. Respondent Nevada Tank and Casing has not engaged in unfair labor practices
as alleged in the complaint.
RECOMMENDATION
Upon the basis of the above findings of fact and conclusions of law, I recommend
that the complaint be dismissed in its entirety
Plumbers & Fitters Local 761 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the United States and Canada, AFL-CIO
and Matt J. Zaich Construction Co.
Plumbers & Fitters Local 761 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the United States and Canada, AFL-CIO
and Zarubica Company
International Union of Operating Engineers , Local Union No. 12,
AFL-CIO and Matt J. Zaich Construction Co. and Zarubica
Company. Cases Nos. f21-CD-134-1, 21-CD-134-P2, and 21-CD-
135. August 21, 1963
DECISION, DETERMINATION OF DISPUTES, AND ORDER
QUASHING NOTICE OF HEARING
This is a proceeding under Section 10(k) of the National Labor
Relations Act following the filing of charges under Section
8(b) (4) (D) of the Act. A hearing was held before Hearing Officer
Ben Grodsky on January 8, 9, 11, 15, 17, and 21, 1963. All parties
appeared at the hearing I 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 error and are hereby affirmed.
1 Associated General Contractors of America, Southern California Chapter (hereinafter
referred to as the AGC), and the Southern California District Council of Laborers and its
Affiliated Local Unions (hereinafter referred to as the Laborers), intervened Inter-
national Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, Local No 92 (herein the Boilermakers), after having intervened, later withdrew
on the ground that it would be bound by any subsequent Joint Board determination
144 NLRB No. 12.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Briefs filed by the Employers, the Laborers, and the Associated Gen-
eral Contractors have been duly considered.
Upon the entire record in this case, the Board' makes the following
findings : 3
1. Matt J. Zaich Construction Co. (hereinafter referred to as Zaich
Construction) and Zarubica Company (hereinafter referred to as
Zarubica) are each separately engaged as general engineering con-
tractors, specializing in underground work in heavy construction, in-
cluding pipe, tunnels, and bridges. During the calendar year 1962,
each of the Employers received goods and materials valued in excess
of $50,000 directly from outside the State of California or from sup-
pliers in California who themselves received such materials directly
from outside the State of California. As stipulated by the parties, we
find that the Employers are engaged in commerce and in an industry
affecting commerce, within the meaning of the Act.
2. The parties further stipulated, and we find, that Plumbers R
Fitters Local 761 of the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO (hereinafter referred to as the Plum-
bers), International Union of Operating Engineers, Local Union No.
12, AFL-CIO (hereinafter referred to as the Operating Engineers),
and Southern California District Council of Laborers and its Affili-
ated Local Unions are labor organizations within the meaning of Sec-
tion 2(5) of the Act. We also find that the International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, Local No. 92 is a labor organization within the meaning
of the Act.
3. The dispute :
Work at Issue
Since on or about July 27, 1962, Zaich Construction and Zarubica
have been engaged in the construction and installation of a waterline
conduit from the Glendale area to Oxnard and Simi Valley, Cali-
fornia, for the Calleguas Municipal Water District. Zaich Construc-
tion has a contract for the construction of unit 2 of the project and
2Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with these cases to a three-member panel
[Chairman McCulloch and Members Leedom and Fanning].
3 On May 3, 1963, several months after the close of the hearing, the Respondent Unions
filed a motion to quash the notice of hearing , on the ground that they had offered to
enter into a settlement agreement with the Regional Director disposing of the alleged
violations; had notified the Employers that they withdrew any claim to the work tasks in
question ; and were willing to enter into a settlement agreement satisfactory to the Board
Thereafter, the Employers, the Laborers, and the AGC each filed an opposition to the
motion to quash
Having duly considered the matter, and particularly in view of the provisions of Sec-
tion 10(k) directing the Board to hear and determine the dispute unless resolved by all
the parties, the Board is of the opinion that in the circumstances of this case it would
not effectuate the policies of the Act to grant the Respondents' motion, and it is accord-
ingly denied.
PLUMBERS & FITTERS LOCAL 761, ETC . 135
Zarubica for the construction of unit 3. The work at issue involves
the pipelaying operation of the Employers under these contracts.
The pipe to be laid is steel core concrete pipe 48 inches in diameter
and comes in 40-foot lengths. As presently performed by both Em-
ployers, a laborer first slings a cable around the center of the pipe
which is on the bank near the excavation. A soap mixture is then put
on the narrow end of the pipe, called the spigot, and a rubber gasket
is placed on it. The pipe is then hoisted by power equipment, manned
by an operating engineer, who receives signals from an oiler, also
an operating engineer (both members of the Operating Engineers),
who is in turn assisted by a laborer (the sling man) in making sure that
the pipe goes into the excavation without swinging wildly. One of the
laborers in the ditch waiting for the pipe has already dug a hole where
the cable will ultimately rest so that it can be removed when the
pipe has been put in place. The pipe is then lowered into the excava-
tion. One laborer stands inside the established pipe to receive the
spigot of the new pipe. Another, who is in charge of the operation
and is called the pipelayer, receives the new pipe at its wider or "bell"
end. When the pipe has been lowered and is properly aligned, the
pipelayer pushes the new pipe into the established pipe, thus making
the initial joint. The laborer inside the established pipe, designated
the pipelayer's helper, places some metal blocks called "spacers" be-
tween the bell of the old pipe and the spigot of the new pipe so that the
pipe will fit properly. When the joint has been completed, it is neces-
sary to grout or cement the pipe both inside and out. On the outside,
a laborer places a steel banded cloth ring, called a "diaper," around
the joint. A laborer on top of the excavation prepares a thin grout, or
cement and sand mixture, which is then poured into the diaper, making
a cement joint on the outside of the pipe. This joint is then covered
with sand and the excavation is back-filled. The inside grouting will
be done later by a laborer known as a "pointer," who is at work perhaps
a thousand feet back in the pipe. The pointer, in two separate opera-
tions, grouts the inside joint where the spacers are, so that the pipe
has a smooth concrete finish from beginning to end.
In addition, approximately 4 percent of the pipe joints on Zarubica's
job and approximately 20 percent of the pipe joints of Zaich Con-
struction's job must be completed by welding. In both instances,
the welding is done on the inside of the pipe and precedes the inside
grouting operation.
At the time of the picketing discussed below, both Zaich Con-
struction and Zarubica employed laborers to do all the work, except
for the crane work, which was done by operating engineers, and the
welding, which was done by boilermakers.
A question exists as to what portion of the work is actually sought
by the Plumbers. In this regard, the Plumbers' demands varied at
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times from the work awarded it by the National Joint Board for the
Settlement of Jurisdictional Disputes. However, a composite of the
testimony indicates, in our view, that the Plumbers seeks all the work
assigned it by the National Joint Board,4 which work is presently
being done by laborers; and seeks in addition the welding of joints
presently being done by boilermakers.
Evidence of Conduct Violative of Section 8 (b) (4) (D)
As stated above, the Employers had commenced on or about July 27,
1962, to install separate units of a waterline conduit for the Calleguas
Municipal Water District. Pursuant to a contract between the Under-
ground Engineering Contractors Association (hereinafter referred to
as the UECA), of which the Employers were members, and the La-
borers, Zaich Construction and Zarubica had assigned the work in
dispute herein (other than the welding) to laborers.
Early in August 1962, the Plumbers unsuccessfully sought to have
Zaich Construction sign a contract with it. Thereafter, on or about
August 21, the Plumbers picketed at the jobsite of both Zaich Con-
struction and Zarubica, carrying signs which read that the Employers
were not paying Plumbers' wages. At that time, the Employers re-
fused to sign a contract with the Plumbers. No work stoppages ensued
from the picketing.
On August 27, the Plumbers submitted the jurisdictional dispute
over this work (other than the welding) to the National Joint Board
for the Settlement of Jurisdictional Disputes in the Building and Con-
struction Industry. The Joint Board thereupon notified the parties
(other than the Boilermakers) that it would hold a hearing on the dis-
pute. On August 30, the UECA notified the Joint Board, on behalf of
Zaich Construction and Zarubica, that they were not bound by any
determination of that Board, and that the National Labor Relations
Board was the proper forum for the resolution of the dispute between
the parties. The Laborers also refused to make any submission to the
Joint Board as requested. Despite this alleged lack of jurisdiction
over the Employers, the Joint Board determined on September 28
that the work in dispute should be assigned to the Plumbers, and noti-
fied all interested parties of its decision.
On November 29, the Plumbers again picketed at the jobsite of Zaich
Construction and Zarubica, its placards at each site now reading, "Not
conforming with Decision of N.J.B." As a result, the operating
engineers employed by the two Employers, as instructed by Operating
Engineers, refused to cross the picket lines, and the jobs were shut
down.
4 This encompassed the "installation, including rigging, handling , lowering into ditch,
aligning , leveling, and making of joints, of 48-Inch steel core concrete pipe."
PLUMBERS & FITTERS LOCAL 761, ETC. 137
Contention of the Parties
The Plumbers contends that the notice of hearing should be quashed.
It argues that, as to all of the work in dispute except the welding, it
was rightfully seeking to have the Employers assign to its members
work previously awarded it by the National Joint Board. In addi-
tion, the Plumbers rests its claim to this work on an agreement between
the International Plumbers and the International Laborers setting
forth the jurisdiction of the two unions, entered into on January 23,
1941. As to the welding, the Plumbers contends that it is entitled to
this work by virtue of an agreement between the International Boiler-
makers and the International Plumbers, dated August 1941. Finally,
the Plumbers insists that the waterline being installed is a distribu-
tion line as opposed to a transmission line, and that plumbers are
customarily employed to do the work tasks in question on distribution
lines.
The Employers contend that they have not agreed upon the Joint
Board as a method for the voluntary adjustment of the disputes, and
are in no way bound by the decisions of the Joint Board. They further
contend that they have assigned the work to laborers on the basis of a
contract with the Laborers, the skills and work involved, their own
and industry practice, and the efficient operation of the work. The
Employers base the assignment of welding to boilermakers on industry
practice.
The Laborers contends that no jurisdictional dispute within the
meaning of Section 10 (k) exists because one of the two contending
groups of employees-the plumbers represented by the Plumbers
Union-are not in fact employees of either Employer, and that con-
sequently there does not exist a dispute between two or more employee
groups claiming the right to perform the work, within the meaning
of the CBS case.' Alternatively, the Laborers argues that it is en-
titled to the work on the basis of the same factors relied upon by the
Employers.
Applicability of the Statute
Before the Board proceeds with a determination of 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.
The record furnishes reasonable cause for believing that the Plumb-
ers picketed the jobsites in part for the purpose of forcing Zaich Con-
struction and, Zarubica to assign the work in dispute to employees
represented by the Plumbers instead of to employees represented by
the Laborers and Boilermakers. The Plumbers thereby succeeded in
6 N.L R B. v. Radio and Television Broadcast Engineers Union, Local 1212, IBEW
(Columbia Broadcasting System), 364 U S 573
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
producing a work stoppage by the employee members of the Operating
Engineers.
The Plumbers contends, however, that its picketing followed an
award to it of the work in disputes by the Joint Board pursuant to
an agreed-upon method for settlement of jurisdictional disputes by
the parties. It supports this contention by stating that both Zaich
Construction and, Zarubica were members of the AGC at the time the
dispute arose, and that the AGC contract with the Laborers provides
for the submission of jurisdictional disputes to the National Joint
Board?
In essence, the Plumbers asserts that Zaich Construction and Zaich
Company, another corporation owned by Matt J. Zaich and admittedly
a member of the AGC at the time of the dispute, are a single entity,
and that Zaich Construction was thus bound to the Joint Board. The
evidence discloses that Matt J. Zaich operates both corporations under
separate contractor's licenses. Both corporations have the same presi-
dent and vice president but a different secretary, and Zaich is the sole
stockholder in each. Generally, the Zaich Company does storm drain
work, also known as large box conduit or channel work, whereas Zaich
Construction does pipeline work which for the most part involves
sewer construction. The crew works interchangeably on jobs for
the two corporations and is under the same general supervision on
either job. However, it is clear that the two corporations maintain
separate books, bank accounts, and payrolls, make their own unem-
ployment compensation and other deductions, and carry their own
liability insurance and workmen's compensation. Although Zaich
Construction rents whatever equipment it needs from Zaich Company,
the pro-rata cost is paid by Zaich Construction.
Zaich Company became a corporation in the early 1950's whereas
Zaich Construction did not come into existence until 1958. Matt Zaich
testified that his reasons for forming Zaich Construction included :
his desire to create another corporation in which he hoped, as a reward
for loyalty, to make the vice president of Zaich Company an active
stockholder; his judgment that Zaich Construction would be in a good
competitive position by being able to rent equipment from Zaich
Company; and the advice of his tax adviser. Zaich also testified that
although Zaich Company was a member of AGC at the time he started
Zaich Construction, he made the latter a member in the UECA in
order to be associated with some of his colleagues in the heavy con-
struction industry.
6 This phase of the argument is directed toward all the work in dispute except the
welding.
7It is undisputed that the essential difference between the UECA and the AGC con-
tracts with the Laborers is that the former does not, whereas the latter does, provide for
the settlement of jurisdictional disputes by the Joint Board
PLUMBERS & FITTERS LOCAL 761, ETC. 139
At the hearing, the labor relations director of the AGC stated that
Zaich Construction was not a member of that organization, that com-
panies related to member companies are not themselves members by
that fact alone, and that each business entity has to make separate
application to AGC in order to be a member ands be bound by that
Association's contracts with labor organizations.
From all the above, we find that the AGC contract is not binding on
Zaich Construction. Accordingly, we further find that Zaich Con-
struction was not bound by the jurisdictional dispute processes of
the Joint Board.
Zarubica Company sent a letter of resignation to the AGC on
April 25, 1962, and was informed by letter dated May 16 that its
resignation had been accepted. Respondents contend, however, that
negotiations between the AGC and the Laborers for a new contract
to replace the one which had expired on May 1, 1962, culminated
in an agreement between the parties on May 15, and that Zarubica's
resignation 1 day later was thus untimely. In support of this con-
tention, Respondents read into the record a portion of article II,
section C of the AGC-Laborers contract which states that signatory
members of the contract shall remain liable for the terms of the con-
tract irrespective of whether they resign from AGC prior to the
expiration date of the contract. However, a proviso to article II
states that the provisions of the contract conferring jurisdiction on
the Joint Board for the settlement of jurisdictional disputes shall not
be binding upon a member subsequent to his resignation.
It is clear, therefore, that at the time of the picketing Zarubica was
not bound to the Joint Board. Apart from this absence of contract,
moreover, the record is clear that neither Zaich Construction nor
Zarubica had stipulated with either Respondent Union involved
herein or with the Joint Board that it would be bound by the Joint
Board plan.
As for the Plumbers further contention that it is entitled to all
the work in dispute under certain jurisdictional guidelines contained
in agreements with the International Laborers and the International
Boilermakers, the record discloses that neither Employer was a party
to, nor has ever expressed an intention to be bound by, either
agreement.8
In Local Union 825, International Union of Operating Engineers,
AFL-CIO (Schwerman Co. of Pa., Inc.), 139 NLRB 1426, the Board
held that an interunion agreement containing a method for the volun-
tary adjustment of a jurisdictional dispute did not preclude the Board
from considering the dispute where the employer was not a party
8 Although the Plumbers has not stated so specifically, it follows that it feels the Board
is thus precluded from making a determination of the disputes
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereto and had not adopted the agreement. Accordingly, we find
this contention to be without merit.
As to the Laborers contention that a true jurisdictional dispute
does not exist because the employees represented by the Plumbers
are not now employees of these Employers, the Board has held that
Sections 8(b) (4) (D) and 10(k) are not limited in their application
to work disputes between two groups of employees both currently
working for the same employer.' Accordingly, we find the Laborers
contention without merit.
We now turn to the dispute involving the welding. The award of
the Joint Board to the Plumbers did not include welding. However,
the Plumbers clearly claims that work for its members, as does the
Boilermakers, whose members are currently performing the work.
The record discloses that Zarubica has a contract with the Boiler-
makers Union, dated October 1, 1962, which provides as follows :
The Union and the Contractor agree that in the event any
jurisdictional dispute shall arise, such dispute shall be settled
in accordance with the practice of the Building and Construc-
tion Trades Department of the American Federation of Labor,
without permitting the same to interfere in any way with the
progress or prosecution of the work. Both parties agree to be
governed by whatever decision may be rendered.
Thus, it is seen that Zarubica and Boilermakers are bound to the
Joint Board as to any jurisdictional dispute involving them. Further-
more, the Plumbers, by virtue of membership in the Building and
Construction Trades Department of the AFL-CIO, is also bound
to the Joint Board.10 There is no question, therefore, that the fore-
going establishes an agreed-upon method for voluntary adjustment
of the dispute as to Zarubica's welding.
As the import of Section 10 (k) of the Act is "to encourage the
parties involved in jurisdictional disputes to settle their differences
amicably within the stabilizing compass of the collective-bargaining
process and its resultant contracts," 11 and as the parties are agreed to
do so, we find that we have no jurisdiction to pass upon the merits
of Zarubica's welding dispute. Rather, as the Board has held, it
will quash the notice of hearing in a proceeding once it appears that
all parties have agreed upon a voluntary method of adjusting the
O International Union of Operating Engineers , Local 66, AFL-CIO (Frank P. Badolato
it Son), 135 NLRB 1392; International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States and Canada, Treasurers and
Ticket Sellers Local No. 862, AFL- CIO (Allied Maintenance Company of Pennsylvania,
Inc), 137 NLRB 738.
" International Union of Operating Engineers, Local 66, AFL.-CIO (Frank P Badolato
it Son), supra, at 1395
U Ironworkers Local No. 768 , International Association of Bridge , Structural and Orna-
mental Ironworkers, AFL-CIO (Armco Drainage and Metal Products Cc , Inc ), 137
NLRB 1758, and footnote 1 therein.
PLUMBERS & FITTERS LOCAL 761, ETC. 141
the dispute, whether or not the chosen method had theretofore
been utilized to decide the issue.12 We shall therefore quash the
notice of hearing with respect to the welding work of Zarubica sought
by the Plumbers.
The record further discloses , however, that Zaich Construction does
not have a contract with the Boilermakers Union and is in no way
whatsoever bound to the Joint Board. Accordingly, any determina-
tion to be made by the Joint Board with respect to the welding on the
Zaich Construction project would have no binding effect upon that
employer.
On the basis of the entire record, we find that there is reasonable
cause to believe that a violation of Section 8(b) (4) (D) has occurred,
and that the disputes other than the one involving Zarubica's welding
are properly before the Board for determination under Section 10 (k)
of the Act.
The Merits of the Dispute
The parties stipulated that there are no outstanding Board certifica-
tions as to either of the Employers for any of the work in dispute.
We shall first discuss the merits of the dispute between the Plumbers
and Laborers, which involves all the work in contention except the
welding.
1. Contract provisions
Zaich Construction and Zarubica are both members of the UECA,
which has a contract with the Laborers, the latest contract being dated
May 1, 1962. Neither Employer nor UECA has a contract with the
Plumbers.
Article I of the UECA-Laborers contract is entitled "Work Cov-
ered" and lists 26 specific work tasks over which it states the Laborers
has jurisdiction . The work in dispute herein does not appear to be
covered.
Article XI of the contract is entitled "General Work Coverage"
and speaks , in part, of :
A. The construction of, in whole or in part , or the improvement
or modification thereof, including any structures or operations
which are incidental thereto, the assembly, operation, maintenance
and repair of all equipment , vehicles and other facilities used in
connection with the performance of the aforementioned work
and services, and including without limitation the following types
or classes of work :
1. . . . water supply , water development , reclamation , irriga-
tion, drainage and flood control projects, water mains, pipe lines,
sanitation and sewer projects, dams , aqueducts , canals, reservoirs,
"Id., pp. 135,136
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intakes, channels , levees, dikes , revetments , quarrying of break-
water or riprap stone; ... .
Although apparently broad in its coverage, we do not believe that
article XI alone can be relied on as necessarily dispositive of the
specific work tasks involved in this proceeding.
2. Work skills
The Employers contend that the work involved is very skilled and
requires experienced employees. Specifically, they state that the in-
side pointer must plaster the overhead are in such a manner that the
grout will adhere to that surface , that the pipelayer must know the
nature of the soil and be able to determine whether it is safe to work
in the excavation or whether a collapse is imminent, and that the align-
ing of the pipe must be made to rigid specifications. In their opinion,
the men who are now working for them in the ditch have developed,
through their long experience, a sixth sense by which they can deter-
mine how safe the ditch is and how much time they will have in which
to work safely after they have removed the lateral supports in the ditch
so as to lower the pipe.
At the hearing , there was testimony on behalf of several heavy
construction contractors to the effect that their laborer employees have
been with them for approximately 5 to 15 years and have been be-
come increasingly skilled in their duties . Several contractors also testi-
fied that plumbers had never done this type of work and that it would
take years before they could become skilled at it.
The Plumbers states that the work is actually semiskilled and that
it has done it as part of the plumber's trade. At the meeting between
the Plumbers and the Employers on December 3, 1962, however, the
Plumbers displayed a lack of knowledge as to what the work entailed
and stated its willingness to have a laborer do the work if he were
cleared into the Plumbers Union.
3. Company and industry practice
The evidence in the record leaves little doubt that plumbers are
customarily employed to do analogous work tasks on distribution lines.
Because the Plumbers contends that the line now under construction is
a distribution line, whereas the Laborers argues that it is a trans-
mission line, it is necessary to differentiate between the two types of
lines.
An analysis of the testimony taken at the hearing in this regard
discloses that a transmission line is usually made of reinforced concrete
pipe, is laid 10 to 30 feet in depth, is constructed of pipe of a greater
diameter than 24 inches , and requires considerable shoring of the ditch
before the pipe can be laid. On the other hand, a utility or distribution
PLUMBERS & FITTERS LOCAL 761, ETC. 143
line is generally made of a different kind of pipe, transite pipe, is less
than 24 inches in diameter, is usually laid in depths of 4 to 5 feet,
requires no shoring of the ditch, and can have many of its joints made
on the bank instead of in the ditch. In addition, a transmission line is
for transportation of water from one area to another and does not have
any local distribution system, whereas a distribution line distributes
water in a particular locality to consumer outlets.
It is uncontradicted that the units of line which Zaich Construc-
tion and Zarubica were installing for the Calleguas Municipal Water
District are reinforced concrete pipe, 48 inches in diameter, have no
distribution laterals on them, and are being laid in the manner and to
the depth of transmission lines in general. Accordingly, we find that
these units are transmission lines.
At the hearing, five persons engaged in heavy construction work,
including Zaich, Zarubica, and Weeshoff, who are putting in sections
of the Calleguas Municipal Water District line, and the president and
executive secretary of the UECA, testified that it is customary prac-
tice for these employers, and traditional throughout the industry, for
the work in dispute to be assigned to members of the Laborers on trans-
mission line projects. Zarubica stated that as far back as the 1920's
only laborers had done this work; Zaich said that he always used la-
borers for this work; another employer testified that he had used la-
borers to do this work for many years, and had been, prior to that,
a laborer himself doing similar work.
In addition, there was a great deal of testimony at the hearing
with respect to similar work that had been done in the past by these
and other employers. On 12 other transmission lines, only laborers had
been utilized to perform all the tasks which are presently in dispute.
The Plumbers attempted to show that they had done similar work on
eight or nine transmission lines in the past, including work done for
the Hood Company on unit 1 of the Calleguas Municipal Water
District line. However, it appears that on that particular job, in addi-
tion to a plumber who did the welding, only one other plumber and a
pipefitter, cleared into the Plumbers, were employed; and the re-
mainder of the crew were laborers. On another job, the plumbers em-
ployed were actually laborers who were forced to become members of
the Plumbers for that job, but proceeded to their next job as laborers.
On three other jobs, the lines which were constructed appeared to
be distribution lines, as one serviced a pumping station, another was a
lateral off a main line, and the third was for municipal fire use and had
numerous outlets to fire hydrants. Another alleged transmission line
likewise had all the indicia of a distribution line, the pipe being less
than 30 inches in diameter, the ditches being only 4 or 5 feet deep, little
shoring being done in the ditches, and the joints being made on the
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bank. Finally, there was a lack of evidence to bear out the claim that
the other lines were in fact transmission lines.
4. Efficiency and safety of operations
Zaich Construction and Zarubica state that the efficiency of their
laborer employees is a consequence of the fact that many of these
employees have been employed by them for a period of approximately
5 to 1-5 years. Related to their efficiency is their versatility, the ability
not only to perform their prime tasks, but to continually assist on
other aspects of the work such as shoring and grading the ditch, and
throwing sand and backfill over the newly laid pipe. Their pro-
ficiency in this regard is reflected in the fact that several of the key
employees spend their entire time doing other related jobs on days
when no pipelaying can be done. The Employers stress the inter-
relationship of the different work tasks and the importance of the
men in the ditch being able to work on different phases of the
operation.
The Employers are also very concerned with the safety aspect of
the work. It is clear that where the ditches are 20 to 30 feet in depth,
the men operate under hazardous conditions, with cave-ins an ever-
present possibility, and the addition of men in the ditch increases
the chances of an accident. Since the Plumbers does not seek to do
the grading, shoring, backfilling, or other tasks related to the actual
pipelaying, the Employers express concern about the presence of
too many men in the ditch.13 For this reason, the Employers desire
to use only experienced versatile laborers in this type of work. In
fact, Matt Zaich testified that even if he were required to assign
plumbers the work in dispute, he would still employ a laborer-
foreman as a safety precaution because of that man's experience.
5. Agreement between Plumbers and Laborers
The agreement of January 23, 1941, between the International
Plumbers and the International Laborers was intended to clarify the
jurisdiction of the respective Unions over different jobs which were
a part of "all work on subways, tunnels, highways, viaducts, streets,
and roadways in connection with sewers and water mains." [Em-
phasis supplied.] Both Unions submitted into evidence jurisdictional
dispute decisions of the Building and Construction Trades Depart-
ment of the AFL pursuant to this agreement. A compilation of all
these decisions shows that all water main work awarded to the
13 Although the Plumbers stated at the hearing that it was willing to have plumbers
perform these related tasks , and that it had communicated this position to the Employers
at the meeting of December 3 , the Employers did not recall any mention of this issue.
In any event , there was no satisfactory showing that Plumbers was entitled to such related
tasks
PLUMBERS & FITTERS LOCAL 761, ETC. 145
Plumbers was limited to work done inside a building or where the
water main led to a building.14
At the hearing, Mladin Zarubica, president of Zarubica, indicated
that this 1941 agreement would not even apply to a waterline. He
stated that a water main is a pipe that has an outlet to every property
along its run, the word "main" indicating that it is the main supply
of water in a given street to the properties on that street; on the
other hand, a waterline transports water from a principal water
source to a city, airfield, or other large installation, which is then
serviced by water mains. Robert Wilkin, executive secretary of the
UECA, corroborated Zarubica's testimony in this regard.
We turn now to the merits of the dispute between the Plumbers
and the Boilermakers, which involves only the welding.
(a) Assignment made by the Employer
Zaich Construction, the only Employer over whose dispute the
Board has jurisdiction, does not have a contract with either union
for the welding of transmission line joints. Originally, the Em-
ployer subcontracted the welding to a member of the Plumbers
Union. Shortly thereafter, this individual went on vacation, but
found a replacement to do his work, a member of the Boilermakers
Union who was still doing the welding at the time of the hearing.
(b) Industry practice
In its brief, the Employer urges the Board to determine this dispute
in favor of the Boilermakers and contends that it is the practice in
the industry to assign welding work on transmission lines to boiler-
makers. The record clearly shows that on 3 of the 4 other units of
the Calleguas Municipal Water District line which have been awarded,
and on 11 other transmission lines which were laid between 1945 and
1960, members of the Boilermakers Union have been used (or in 1
case will be used) to do the welding. The contractor who was the
second lowest bidder on the units of the present line which were
awarded to Zaich Construction and Zarubica testified that he had
used boilermakers to weld joints for 16 years, and had planned to
use them on the jobs he bid on unsuccessfully.
6. Agreement between the Plumbers and Boilermakers
The International Plumbers and the Boilermakers Unions signed
an agreement on August 1, 1941, the purpose of which was to resolve
14 In fact, for the first 2 years of this agreement, the Laborers were being awarded all
work on water mains laid on streets and roadways. Thereafter, the Laborers were re-
stricted to work on sewers.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jurisdictional disputes between the two unions. The pertinent provi-
sions of this agreement are sections 14 and 16 which reads as follows :
SEC. 14. Plate fabricated aqueducts or water lines to the point
where it enters city or town distributing system, whether riveted
or welded, is the work of the Boilermakers.
SEC. 16. All other classes of manufactured pipe-regardless of
material-used in the pipefitting industry, is the work of the
United Associated.
At the hearing, the business manager of the Plumbers stated that
by the terms of the 1941 agreement the Plumbers was entitled to the
welding. However, as we have already found above, the line is in fact
a transmission line, and, by the terms of section 14, would appear
to be the work of the Boilermakers.
Section 16, covering "other" situations, appears to be of little help
because of its inherent ambiguities. There is, for one thing, no defuii-
tion in the agreement of the phrase "used in the pipefitting industry."
In addition, there is uncertainty as to whether the phrase "all other
classes of manufactured pipe" was meant only to cover the type of
pipe in existence at the time of the agreement. In this regard, there
is conflicting testimony at the hearing as to whether the pipe being
laid for the Calleguas Municipal Water District line had been in use
in 1941.
Conclusion
In International Association of Machinists Lodge No. 1743, AFL-
CIO (J. A. Jones Construction Co.), 135 NLRB 1402, the Board set
forth the following criteria to be considered in the making of an
affirmative award under the CBS decision: 15
The Board will consider all relevant factors in determining who
is entitled to the work in dispute, e:g., the skills and work in-
volved, certifications by the Board, company and industry prac-
tice, agreements between unions and between employers and
unions, awards of arbitrators, joint boards and the AFL-CIO in
the same or related cases, the assignment made by the employer,
and the efficient operation of the employer's business.
Having taken all these factors into consideration, and upon the
record as a whole, we believe that laborers, rather than plumbers, are
entitled to the work in dispute between these two groups. In reaching
this conclusion, we rely upon the work skills of the laborers, company
and industry practice, and the efficiency and safety of the operations.
We reject the contention that the agreement between the International
Plumbers and the Laborers assigns the work in dispute to plumbers.
Rather, that agreement and the awards rendered pursuant to it bear
15 N L R.B v Radio & Television Broadcast Engineers Union, Local 1212 , IBETV, supra
PLUMBERS & FITTERS LOCAL 761, ETC. 147
out the contention of the Laborers and the Employers that it is re-
stricted to distribution lines alone . We further believe that boiler-
makers , rather than plumbers , are entitled to do the welding on the
Zaich Construction job, and rely on the present practice in the industry
in reaching this determination . We also reject the contention that an
agreement between the International Plumbers and the Boilermakers
Unions, setting out the jurisdiction of the respective unions , offers
any support for the position of the Plumbers . One section of that
agreement appears to uphold the Boilermakers contention , and the
other section is too ambiguous and obscure to be relied upon for sup-
port of the Plumbers contention.
Based on the foregoing , we shall determine the first dispute by de-
ciding that laborers , rather than plumbers , are entitled to the work of
installation, including rigging, handling , lowering into ditch , aligning,
leveling, and making of joints, of 48-inch steel core concrete pipe. In
making this determination , we are assigning the disputed work to
laborers who are represented by the Laborers Union, but not to the
Laborers Union or its members.
We shall determine the second dispute by deciding that boiler-
makers rather than plumbers are entitled to the work of welding trans-
mission line joints. In making this determination , we are assigning
the work to welders who are represented by the Boilermakers , and not
to the Boilermakers or its members.
Our assignments are to be regarded , moreover , as limited to the
facts and circumstances of the Employers ' construction operations,
and as directed at the controversies which gave rise to these proceed-
ings. Also , in view of the assignments we have made, we shall provide
in our determination that the Plumbers was not, and is not, entitled
to use methods proscribed by Section 8(b) (4) (D ) of the Act to force
or require Zaich Construction or Zarubica to assign work to its mem-
bers rather than to employees represented by the Laborers . We shall
further provide that the Plumbers was not, and is not, entitled to use
methods proscribed by Section 8(b) (4) (D) of the Act to force or re-
quire Zaich Construction to assign work to its members rather than
to employees represented by the Boilermakers.
The Scope of the Determination
The Laborers urges the Board to make the award applicable only
to those jobs on which the disputes arose. On the other hand, the Re-
spondent -and the AGC contend that the award should cover all the
pipeline work for the Calleguas Municipal Water District. The Em-
ployers take an intermediate position, and contend that the award
should cover those jobs on which the disputes arose and , any subse-
quent jobs by the same contractors on the same project.
727-083-64-vo1. 144-11
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we pointed out in the Badolato case,16 if there is evidence that
similar disputes may occur in the future, the Board need not as a
policy matter restrict itself to a single job determination. At the
hearing in this case, it was shown that the entire project will require
approximately 21/2 years to complete, and that Zarubica had already
been awarded the contract on unit 5 of the same project. Accordingly,
we hold that the determination should apply not only to the jobs
upon which the disputes arose, but to all similar work done or to be
done by Zaich Construction and Zarubica on any other units on the
Calleguas Municipal Water District, but not to other employers not
parties herein.
DETERMINATION OF DISPUTES
Upon the basis of the foregoing findings and the entire record in
this case, the Board makes the following Determination of Disputes
pursuant to Section 10 (k) of the Act :
1. Employees engaged as laborers, currently represented by the
Southern California District Council of Laborers and its affiliated
Labor Unions, are entitled to perform the installation, including
rigging, handling, lowering into ditch, aligning, leveling, and making
of joints, of 48-inch steel core concrete pipe for Matt J. Zaich Con-
struction Co. and Zarubica Company on the Calleguas Municipal
Water District line. Accordingly, Plumbers & Fitters Local 761 of
the United Association of Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO, and International Union of Operating Engineers, Local
Union No. 12, AFL-CIO, are not entitled to force or require Matt J.
Zaich Construction Co. or Zarubica Company to assign the above-
mentioned disputed work to plumbers represented by Local 761.
2. Employees engaged as boilermakers, currently represented by
International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local No. 92, are entitled to per-
form the welding of transmission line joints for Matt J. Zaich Con-
struction Co. on the Calleguas Municipal Water District line. Ac-
cordingly, Plumbers & Fitters Local 761 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO, and Interna-
tional Union of Operating Engineers, Local Union No. 12, AFL-CIO,
are not entitled to force or require Matt J. Zaich Construction Co.
to assign the above-mentioned disputed work to plumbers represented
by Local 761.
3. Within 10 days from this Decision and Determination of Dis-
putes, Plumbers & Fitters Local 761 of the United Association of
ie Internatwnai Union of Operating Engineers, Local 66 , AFL-CIO (Frank P. Badolato
4 Son), supra at 1401.
METROPOLITAN LIFE INSURANCE COMPANY 149
Journeymen and Apprentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada, AFL-CIO, and Interna-
tional Union of Operating Engineers, Local Union No. 12, AFL-CIO,
shall notify the Regional Director for the Twenty-first Region, in
writing, whether or not they will refrain from forcing or requiring
either Matt J. Zaich Construction Co., or Zarubica Company as to
laborers only, by means proscribed by Section 8(b) (4) (D) to assign
the work in dispute to plumbers rather than to laborers and
boilermakers.
[The Board quashed the notice of hearing with respect to the weld-
ing of transmission line joints for the Zarubica Company.]
Metropolitan Life Insurance Company and Insurance Workers
International Union, AFL-CIO, Petitioner. Case No. 13-RC-
9051. August 21, 1963
DECISION ON REVIEW
On March 14,1963, the Regional Director for the Thirteenth Region
issued a Decision and Direction of Election in the above-entitled pro-
ceeding, finding appropriate a unit of all Metropolitan Insurance
consultants, canvassing agents, and all regular and office account
agents of the Employer at its district and detached offices located in
the Greater Chicago, Illinois, area. Thereafter, in accordance with
Section 102.67 of the Board's Rules and Regulations, as amended,
both Petitioner and the Employer filed with the Board timely re-
quests for review of such Decision and Direction of Election, averring
that substantial questions of fact and law were raised with respect
to the Regional Director's unit determination. The Petitioner ques-
tions the geographic scope of the unit as found by the Regional
Director, while the Employer challenges the Regional Director's
decision to include insurance consultants in the unit found appropri-
ate. The Board, by telegraphic Order on April 4, 1963, granted both
requests for review and stayed the election. Thereafter, the Employer
and the Petitioner filed briefs.'
The Board has considered the entire record in this case with respect
to the Regional Director's determination under review, together with
the briefs of the parties, and hereby affirms the Regional Director to
the extent consistent with our decision herein.
1 The Employer has requested oral argument . Because, in our opinion , the record and
briefs adequately set forth the issues and positions of the parties, this request is thereby
denied.
144 NLRB No. 15.