Plumbers, Local 65

National Labor Relations Board - Board Decisions

May 24, 1971

190 N.L.R.B. 484 (N.L.R.B. 1971)

484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada , AFL-CIO, Local 65 and Kieffer
Bros. Construction Company, Inc.` and Laborers In-
ternational Union of North America , AFL-CIO, Lo-
cal No . 1262. Case 14-CD-353
May 24, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by Kieffer Bros. Construction Company,
Inc., hereinafter called Kieffer or the Employer, alleg-
ing that United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO, Local No.
65, hereinafter called Plumbers, had violated Section
8(b)(4)(D) of the Act. A hearing was held pursuant to
notice at Shelbyville, Illinois, on January 21, 1971,
before Hearing Officer John H. Martin. The Employer,
Plumbers, and Laborers International Union of North
America, AFL-CIO, Local No. 1262, hereinafter
called Laborers, appeared at the hearing and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bear-
ing on the issues. The Employer and Plumbers have
filed briefs with the National Labor Relations Board.
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 powers
in connection with this case to a three-member panel.
The rulings of the Hearing Officer made at the hear-
ing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board makes
the following findings:
I THE EMPLOYER
All parties stipulated that Kieffer is a Kentucky cor-
poration engaged in the construction business as a pip-
ing contractor installing sewer, gas, and water pipelines
in the State of Illinois, and that during the past year
Kieffer, in the course and conduct of its business opera-
tions, purchased pipe and pipeline products and other
goods valued in excess of $50,000, which goods and
materials were transported and delivered directly to its
principal place of business in Mt. Carmel, Illinois, or
I The name of the Employer appears in the caption as amended at the
hearing
190 NLRB No. 89
to construction sites located in the State of Illinois,
directly from points located outside the State of Illinois.
The parties agree, and we find, that Kieffer 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. Background and Facts of the Dispute
The dispute herein involves the stringing, hooking,
and signaling of pipe by Kieffer in connection with the
laying of water transmission lines for the city of Shelby-
ville, Illinois. Kieffer performs work at two jobsites on
this project. The first is situated outside the Shelbyville
city limits and will be referred to herein as the country
site. The second is situated within the city limits of
Shelbyville and will be referred to herein as the city site.
The record reveals that the dispute herein was confined
to the country site.
Members of Plumbers performed all the hooking and
signaling at the city site, with no competing claims
from Laborers; similarly, members of Laborers per-
formed all the stringing work at the city site, with no
competing claims on this work being made by Plum-
bers. Consequently, the discussion and assignment
made herein will be confined to the country site.
The work involved in stringing pipe consists of plac-
ing joints or lengths of pipe along a road next to a ditch.
The work involved in hooking pipe consists of attach-
ing these joints of pipe to a machine commonly known
as a Cherry Picker so that the pipe may be lowered into
the ditch. The signaling operation involved standing at
the edge of the ditch and giving directions to the Cherry
Picker operator as the pipe is lowered into the ditch.
Kieffer is a party to collective-bargaining agreements
with both Plumbers and Laborers. The Plumbers
agreement states in pertinent part:
Article III
Jurisdiction of Work
The Employer agrees that the following described
work shall be performed by employees covered by
the terms of this agreement:
42. All pipe transportation lines for gas, oil, gaso-
line, fluids and liquids, water aqueducts, and water
lines, and booster stations of every description.
The Laborers contract states in pertinent part:
Article XVI
PLUMBERS, LOCAL 65 485
Laborers Jurisdiction did not resume on the Shelbyville project until Septem-
It is further agreed that the following work shall ber 28.
be done by Laborers:
... handling, distributing, laying and making of
all joints on watermains, ... signal men by any
made [sic] or method, .. .
On June 24, 1970,2 Kieffer held a prejob conference
attended by, inter alios, representatives of Plumbers
and Laborers, in which Kieffer's requirements for the
Shelbyville job were explained. In the course of this
conference Plumbers and Laborers agreed that they
would follow what is commonly known as the 1941
Agreement between their respective international un-
ions regarding the assignment of work to be performed
on the Shelbyville project. Work on the country site
began on July 13 but members of Plumbers failed to
appear on this date. Kieffer accordingly assigned mem-
bers of Laborers to do all of the work on the project
(excepting that work performed by members of other
unions not here involved).
On July 16, Plumbers Business Agent Benton visited
the country site and claimed the hooking and signaling
work being done by members of Laborers. Laborers
continued to claim this work and, in order to avoid
delay, Kieffer agreed that a member of Laborers and a
member of Plumbers could share this work although
the signaling and hooking operation was normally con-
sidered a one-man job.
On August 24, while members of Laborers were pre-
paring to string pipe, Plumbers Job Stewart Bodine told
Foreman Keepes that if Laborers continued to string
pipe, he (Bodine) would shut the job down. Bodine then
left the jobsite, called Business Agent Benton, and was
told that this matter would be discussed in a Plumbers
meeting the following evening. Members of Laborers
continued to string the pipe. Although Benton denied
ever claiming the stringing of pipe, Eugene Kieffer,
secretary and treasurer of the Employer, testified that
during the latter part of August Benton told him that
Plumbers should be performing this work.
On August 27, Job Steward Bodine told Kieffer that
Plumbers would go out on strike if members of Labor-
ers continued to share with Plumbers the hooking and
signaling work. From August 27 to September 3 only
members of Plumbers were assigned the hooking and
signaling.
On September 3, Bodine and one other plumber were
discharged. A member of Laborers was then assigned
to do the hooking and signaling work. On September
4, Plumbers went on strike and began picketing both
the city and the country sites, in part to protest Kie-
ffer's action in allowing Laborers to perform hooking
and signaling work after Bodine was terminated. Work
B. The Work in Dispute
This proceeding pertains to the assignment of the
work involved in stringing, hooking, and signaling pipe
at Kieffer's country site.
C. The Contentions of the Parties
Plumbers maintains that the Notice of Hearing in
this matter was defective in that it related only to the
10(k) aspects of the hearing and did not give notice as
to any other matter.' Plumbers contends that this con-
stitutes a denial of due process. In addition, Plumbers
states that it does not now, and never has in the past,
claimed stringing work. Moreover, Plumbers argues
that a method of voluntary settlement has been agreed
upon in this case due to the fact that Kieffer requested
the National Joint Board for the Settlement of Jurisdic-
tional Disputes to take action in this matter. Finally,
Plumbers contends that the hooking and signaling
work was assigned to Plumbers at Kieffer's prejob con-
ference and that the area practice requires that Plum-
bers be assigned this work.
Kieffer argues that Laborers should be assigned the
work because the collective-bargaining agreement with
this Union clearly spells out that the disputed work is
within its jurisdiction, while Plumbers agreement is
ambiguous on this score. Kieffer contends that Plum-
bers did claim the stringing work through both Job
Steward Bodine and Business Agent Benton. Kieffer
denies that there has been any agreement by all parties
to the dispute to submit this issue to the National Joint
Board, and further denies that the disputed work of
hooking and signaling was assigned to Plumbers at the
prejob conference. Finally, Kieffer contends that com-
pany, industry, and area practice, as well as the effi-
ciency of operations and the degree of skill involved in
the disputed work, require that the work be assigned to
Laborers.
D. Applicability of the Statute
Before the Board may proceed to a determination 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 indicated above, Job Steward Bodine, on August
24, and again on August 27, threatened that Plumbers
would go out on strike if Laborers continued to per-
form the disputed work. Moreover, one of the reasons
for Plumbers strike against Kieffer on September 4 was
' Apparently what Plumbers means by this argument is that no
All dates are 1970 unless otherwise indicated 8(b)(4)(D) violation was alleged in the notice
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that members of Laborers were performing
hooking and signaling work on September 3.
We find, therefore, that there is reasonable cause to
believe that violations of Section 8(b)(4)(D) have oc-
curred and that the dispute is properly before us for
determination under Section 10(k) of the Act.'
E. 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 all relevant factors. In In-
ternational Association of Machinists, Lodge No. 1743,
AFL-CIO (JA. Jones Construction Co.), 135 NLRB
1402, 1410-11, the Board set forth the following crit-
eria to be considered in the making of an affirmative
award in a 10(k) proceeding:
The Board will consider all relevant factors in
determining who is entitled to the work in dispute,
e.g., the skills and work involved, certifications by
the Board, company and industry practice, agree-
ments between unions and between employers and
unions, awards of arbitrators, joint boards, and the
AFL-CIO in the same or related cases, the assign-
ment made by the employer, and the efficient oper-
ation of the employer's business.
Among the factors referred to above are some which
are of little or no use in resolving the present dispute.
There is no evidence indicating that there have been
certifications issued by the Board covering any em-
ployees of Kieffer. In addition, although Plumbers
claims that hooking and signaling was orally assigned
to it during Kieffer's prejob conference, this claim is not
proved to our satisfaction by the evidence in the record.
Indeed, it is clear that , as Benton acknowledged in the
hearing, both Plumbers and Laborers interpreted the
1941 Agreement as giving this work to themselves.
Moreover, while Plumbers and Laborers parent Inter-
national unions have met at least once in an attempt to
interpret this 1941 Agreement, it is not at all clear that
a definite accord has been reached. We therefore set
forth below those other factors which we find relevant
in determining this dispute.
1. Company and industry practice
In approximately 75 percent of Kieffer's Illinois jobs,
laborers have performed the disputed work, while in
the remaining 25 percent the work has been performed
by plumbers. Although the record is unclear as to the
prevailing practice in Shelby County (in which Shelby-
ville is located), it appears that in the State of Illinois
as a whole the assignments of the disputed work have
been in line with those made by Kieffer.
2. Bargaining agreements
The portion of the Plumbers contract outlining its
jurisdiction covers the laying of water transmission
lines in general terms, while the Laborers contract is
more specific and extends to handling, distributing, lay-
ing, and making of all joints on water mains and to
signal work of any description. The specificity of the
Laborers agreement is a factor which favors it.
3. Skill of the employees
The record clearly shows that the work involved in
this dispute does not require any especially advanced
skills, and those skills which are required can be ac-
quired in a relatively short period of time. Moreover,
there is no showing of the need for the utilization of the
advanced skills possessed by plumbers. Laborers ap-
pear to be both capable of performing the work effi-
ciently and experienced in doing so.
4. Efficiency and economy of operations
As indicated above, laborers are fully capable of per-
forming the disputed work. Moreover, the record re-
veals that when laborers were performing this work
they accomplished at least as much, if not more, work
than when plumbers were performing the work. Not
only were Kieffer's costs of operations increased when
plumbers were performing the disputed work, but also
these costs were compounded when both a laborer and
a plumber were performing the one-man job of hooking
and signaling . Thus , assignment to plumbers will in-
crease cost without increasing efficiency.
Conclusions
As noted above ,-, Plumbers contends that there has been an agreement
upon a voluntary method of adjustment of this dispute . This argument is
based upon the fact that Kieffer notified the National Joint Board of the
existence of the dispute herein We find this contention to be without merit
We do not consider Kieffer's mere notification to the National Joint Board
that a dispute exists to be , ipso facto, a commitment to be bound by that
body's decision Moreover, the other party to the instant dispute , Laborers,
have not evidenced a willingness to submit the dispute to the Joint Board
Laborers , in its collective -bargaining agreement with Kieffer, is required to
make such a submission only if Associated General Contractors of Illinois
and Central Illinois Laborers Distract Council expressly approve . The record
is clear that neither of these two bodies has granted such approval
Upon the record as a whole, and after full considera-
tion of all relevant factors involved, we believe that
employees represented by Laborers rather than those
represented by Plumbers are entitled to the work in
dispute.' We rely upon the facts that an assignment to
' Plumbers contends that it does not now claim , and never has claimed,
stringing work The record is clear, however, that Job Steward Bodine
threatened a strike if laborers continued to perform this work In addition,
although Benton denied ever claiming stringing , Eugene Kieffer testified
PLUMBERS , LOCAL 65
laborers is consistent with Kieffer's and the industry's
prevailing practice, that the Laborers collective-bar-
gaining agreement specifically covers the disputed
work, that the employees represented by Laborers pos-
sess the requisite skills to perform the work, and that
such an assignment will result in efficiency and
economy of operations. Accordingly, we shall deter-
mine the dispute before us by awarding the work in
dispute, the stringing, hooking, and signaling of pipe at
Kieffer's country site in its Shelbyville water transmis-
sion project, to those employees represented by Labor-
ers. In consequence, we also find that Plumbers has not
been, and is not now, entitled, by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require
Kieffer to assign the disputed work to its members.'
Scope of Determination
Kieffer, in its brief, requests that the Board's award
be extended to all of its future projects in the central
Illinois area . Although the Board need not restrict its
award to a single job if there is evidence that similar
disputes will occur in the future,' we conclude that the
evidence here does not warrant a finding extending to
Kieffer's future projects in central Illinois. Therefore
that Benton did claim stringing work at the same time he claimed hooking
and signaling Because of these factors , and because there is no assurance
that officials of Plumbers will not claim this work in the future, we shall
include stringing in the assignment
' As mentioned above, Plumbers contends that the Notice of Hearing in
this matter was defective The argument is made that this Notice related
only to the 10(k) aspects of the hearing and did not give notice as to any
"expanded scope of the hearing " We find this contention to be without
merit. The original Notice of Hearing clearly states that the 10(k) hearing
arose out of the 8(b)(4)(D) charge filed by Kieffer on September 17 It is
axiomatic that in a 10(k) proceeding , findings are made not that Section
8(b)(4)(D ) has been violated , but merely that there is reasonable cause so
to believe
' Building and Construction Trades Council of Las Vegas (Charles Dorf-
man), 173 NLRB No 208
487
we will limit our award to the project presently under
consideration.
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 proceed-
ing, the National Labor Relations Board hereby makes
the following determination of the dispute:
1. Employees employed by Kieffer Bros. Construc-
tion Company, Inc., and represented by Laborers In-
ternational Union of North America, AFL-CIO, Local
No. 1262, are entitled to perform the disputed work of
stringing, hooking, and signaling pipe at the country
site of Kieffer's project of laying water transmission
lines for the city of Shelbyville, Illinois.
2. United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, Local No. 65, is
not entitled, by means proscribed by Section 8(b)(4)(D)
of the Act, to force or require Kieffer Bros. Construc-
tion Company, Inc., to assign the disputed work to
employees who are represented by that labor organiza-
tion.
3. Within 10 days from the date of this Decision and
Determination of Dispute, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefit-
ting Industry of the United States and Canada, AFL-
CIO, Local No. 65, shall notify the Regional Director
for Region 14, in writing, whether it will refrain from
forcing or requiring Kieffer Bros. Construction Com-
pany, Inc., by means proscribed in Section 8(b)(4)(D),
to assign the work in dispute to employees represented
by it rather than to employees represented by Laborers
International Union of North America, AFL-CIO, Lo-
cal No. 1262.