Plumbers, Local 122

National Labor Relations Board - Board Decisions

Apr 23, 1971

190 N.L.R.B. 33 (N.L.R.B. 1971)

PLUMBERS , LOCAL 122 33
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada , Local 122, AFL-CIO and The
Conduit and Foundation Corp. and R . A. Hamilton
Corporation , a Joint Venture and Laborers Interna-
tional Union of North America, Heavy and General
Laborers' Local 472, AFL-CIO. Case 22-CD-175
April 23, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by The Conduit and Foundation Corp. and
R. A. Hamilton Corporation, a Joint Venture, herein
called the Employer, alleging that United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
Local 122, AFL-CIO, herein called Plumbers, had vi-
olated Section 8(b)(4)(D) of the Act. A duly scheduled
hearing was held in Newark, New Jersey, before Hear-
ing Officer Louis A. Cappadona on September 28,
1970, at which Laborers International Union of North
America, Heavy and General Laborers' Local 472,
AFL-CIO, herein called Laborers, intervened. All par-
ties appeared and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to
adduce evidence bearing upon the issues.' Briefs were
thereafter filed by the Employer and Laborers.
Pursuant to the provisions of Section 3(b) of the Act,
the National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the Hearing Officer's rulings
made 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
The Conduit and Foundation Corp. is a Pennsyl-
vania corporation engaged in the construction of com-
mercial structures in the State of New Jersey and other
States. During the past 12 months, it received revenues
in excess of $500,000 for construction work performed
in the State of New Jersey, and during the same period
it purchased materials in excess of $50,000 from out-
' Plumbers withdrew from the hearing prior to its close and expressly
waived the right to present any further evidence or to cross-examine wit-
nesses
side the State of New Jersey, which were shipped di-
rectly to a jobsite in Livingston, New Jersey.
R. A. Hamilton Corporation is a New Jersey corpo-
ration engaged in the construction of commercial struc-
tures in the State of New Jersey. During the past 12
months it received revenues in excess of $500,000 for
construction work performed in the State of New Jer-
sey, and during the same period it purchased materials
in excess of $50,000 from outside the State of New
Jersey, which were shipped directly to the jobsite at
Livingston, New Jersey.
The above-named two corporations formed a joint
venture for construction work at the Livingston, New
Jersey, shopping mall here involved and are the Em-
ployer in this case.
We find that the Employer is engaged in 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 herein.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find, that Plumbers
and Laborers are labor organizations within the mean-
ing of Section 2(5) of the Act.
III THE DISPUTE
A. The Facts
The Employer has a subcontract with N. K. Winston
Company, herein called Winston, the general contrac-
tor for the construction of a shopping mall at Living-
ston, New Jersey. The subcontract provides for the
installation of storm drainage sewers in the parking lot
which will serve the mall. This work began on August
18, 1970, and the subcontract required that it be com-
pleted by November 15, 1970.
The work involved the installation of corrugated
metal bituminous-coated storm drainage pipe which
ranges from 2 to 8 feet in diameter. After operating
engineers of the Employer dig a trench and lower the
sections of pipe, the Employer's laborers use pick and
shovel to grade the trench properly and join the sec-
tions of pipe with a collar-like fastener secured with
nuts and bolts. There is no sweating or welding of
sections of pipes or fasteners. The laborers then shovel
back dirt to cover the pipe so that the operating engi-
neers can complete backfilling the trench without dam-
aging the pipe. The pipe will carry only rain water and
melted ice and snow away from the parking lot area to
drainage canals. No sewage or other waste water from
the shopping mall will be transported by the pipe. All
water carried by the pipe will be free-flowing rather
than under pressure.
190 NLRB No. 7
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer and Laborers have adopted and are
bound by the collective-bargaining agreement between
Laborers and the Associated General Contractors of
New Jersey. The agreement, in part, covers the installa-
tion of storm drainage sewers, the work here in dispute.
Pursuant to the agreement, the Employer assigned the
work to its laborers.
On or about August 25, 1970, Patrick Rush, business
manager for Plumbers, told Stephen Fleming, the Em-
ployer's project manager at the jobsite, that the Em-
ployer's laborers were doing plumbers' work, and re-
quested that the work be reassigned to Plumbers'
members. Thomas Knowles, the Employer's manager
of construction was informed of this conversation by
Fleming, and a decision was made to deny Plumbers'
request.
On August 26, 1970, Plumbers commenced picket-
ing the jobsite with signs which stated: "PLUMBERS
LOCAL 122 NOT PROPERLY REPRESENTED
AT THIS JOB." The picketing continued until Sep-
tember 1, 1970, when it was voluntarily discontinued.
At or about this time, Plumbers also requested the
township of Livingston to compel the Employer to
reassign the work to licensed plumbers, allegedly as
required by an ordinance of the township adopting the
Plumbing Code of New Jersey. Township officials
refused this request on the ground that the ordinance
did not require that the work be done only by licensed
plumbers. Plumbers thereupon brought suit in a state
court to enforce its interpretation of the ordinance. As
appears from the amended complaint in this state court
suit, which was placed in evidence by Plumbers, Plum-
bers in part demanded a judgment of the state court
directing the Employer to employ licensed plumbers
for such installation, and for other relief.
The record contains no evidence of any decision by
the state court.
B. The Work in Dispute
The dispute concerns the installation of storm drain-
age pipes or sewers in the new parking lot being con-
structed as part of the Livingston shopping mall.
C. Applicability of the Act
Before the Board may proceed 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 satisfies us that there is a reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred . The dispute is thus properly before us for
determination.
D. The Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to the various relevant factors
involved .' The following factors are relevant in making
a determination of the present dispute:
1. Certifications and collective-bargaining agreements
There is no outstanding Board order or certification
involving the disputed work, nor does Plumbers have
any collective-bargaining agreement assigning it the
work. However, Laborers and the Employer have
adopted the collective-bargaining agreement currently
in force between Associated General Contractors of
New Jersey and Laborers, recognizing Laborers as the
exclusive collective-bargaining representative for all
employees of the Employer engaged in certain types of
work, including work of the nature currently in dis-
pute.
2. The Employer's practice
The Employer considers the work here in dispute to
be relatively unskilled work involving principally the
use of picks and shovels and light hand wrenches. In
accordance with the collective-bargaining agreement,
the Employer has assigned the disputed work to its own
employees, who are laborers.
3. Area practice
The record shows that laborers have been perform-
ing work such as is here in dispute for the past 30 years.
This evidence is uncontradicted by Plumbers.
4. Efficiency and economy of operations
The record contains uncontradicted evidence that
the performance of the disputed work by laborers is
both efficient and economical and is not and has never
been considered to constitute a health or safety danger
to the community.
5. License requirements
According to uncontradicted testimony adduced by
the Employer, there are no license requirements for
employees performing the disputed work.
Plumbers contends that the previously mentioned
ordinance of the township of Livingston is applicable to
the dispute and requires that the work be performed by
licensed plumbers. In support of this contention, Plum-
bers placed in evidence a copy of an amended com-
' International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Co.), 135 NLRB 1402.
PLUMBERS , LOCAL 122 35
plaint it had filed in a civil action in a state court against
the Employer and others, alleging that the ordinance
adopted the Plumbing Code of New Jersey; setting
forth certain alleged portions of the Code requiring that
the installation of storm drainage facilities adjacent to
any building, structure, or conveyance to a point of
connection to a public or private sewerage system or
other acceptable terminal be performed by licensed
plumbers;3 further alleging that although Plumbers had
requested officials of the township of Livingston to
compel the Employer to comply with the ordinance
and provisions of the Code as construed by Plumbers,
such officials refused to do so; and requesting the court
in effect to construe the ordinance and Code as con-
tended for by Plumbers and to enjoin the Employer
from performing the disputed work with employees
other than licensed plumbers.
Even assuming, arguendo, the accuracy of the ex-
cerpts from the Code set forth in Plumbers' amended
complaint, and further assuming the inapplicability of
the portions of the Code not excerpted by Plumbers, we
are not persuaded, particularly in the face of the inter-
pretation adopted by the township of Livingston, that
the ordinance and Code require the disputed work to
be done by licensed plumbers.
Conclusions
The evidence set forth above indicates that the Em-
ployer's own employees, currently represented by La-
borers, are entitled to perform the work in dispute.
Plumbers in effect conceded at the hearing that if,
contrary to its position, the Board regards the present
dispute as a jurisdictional dispute within the meaning
of Section 8(b)(4)(D), on the present record Laborers
is entitled to the work. Plumbers' defense is that the
township's ordinance requires the disputed work to be
done by licensed plumbers, but that if the state court
rules against it, Plumbers will make no further claim
for the work. In addition, Plumbers asks that the Board
withhold action until the court has ruled on its claim.
In the alternative Plumbers asks the Board to interpret
the ordinance and Code, to reverse the officials of the
township of Livingston and find that the ordinance and
Code require the disputed work to be performed by
licensed plumbers, and to consider such finding to be
a controlling factor in determining the present dispute.
We find no merit in Plumbers' contentions. On the
basis of the ruling of the Livingston township officials
and of the evidence in the present record, we conclude
that there is no requirement that the disputed work be
performed by licensed plumbers. We also conclude,
upon the basis of the findings and reasoning set forth
above, that the Employer's laborers are entitled to per-
form the work in dispute.' In making this determina-
tion, it is to be noted that we are assigning the disputed
work to employees who are represented by Laborers,
but not to that labor organization or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this case, the
National Labor Relations Board hereby makes the fol-
lowing determination of dispute:
1. Employees of The Conduit and Foundation Corp.
and R. A. Hamilton Corporation, a Joint Venture, who
are currently represented by Laborers International
Union of North America, Heavy and General Labor-
ers' Union Local 472, AFL-CIO, are entitled to per-
form the work of installing storm drainage sewers in
the new parking lot being constructed for the shopping
mall in Livingston, New Jersey.
2. United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the
United States and Canada, Local 122, AFL-CIO, is not
entitled, by means proscribed by Section 8(b)(4)(D) of
the Act, to force or require The Conduit and Founda-
tion Corp. and R. A. Hamilton Corporation, a Joint
Venture, to assign such work to plumbers represented
by it.
3. Within 10 days from this Decision and Determina-
tion of Dispute, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, Local 122, AFL-
CIO, shall notify the Regional Director for Region 22,
in writing, whether or not it will refrain from forcing
or requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the work in
dispute to plumbers represented by it rather than to the
Employer's employees currently represented by Labor-
ers International Union of North America, Heavy and
General Laborers' Local 472, AFL-CIO.
' Although the portions of the Code set forth in the amended complaint
provide that permits should be issued only to master plumbers "except as
provided in 14 1 2 and 14 1 3," the provisions of 14 1 2 and 14 1 3 were not
attached
' If subsequent court decisions or other new evidence not presently in th.
record shows that the Livingston ordinance requires the disputed work t,
be done by licensed plumbers, a motion for a reopening of this matter woul,
be the appropriate means for requesting that we give consideration to th
effect of such new evidence on our conclusions