Plumbers Local 149 (G.A.Rich & Sons)

National Labor Relations Board - Board Decisions

Jun 14, 2004

342 N.L.R.B. 1 (N.L.R.B. 2004)

PLUMBERS LOCAL 149 (G.A. RICH & SONS)
342 NLRB No. 1
1
Plumbers & Pipefitters Local Union No. 149 and Cen-
tral Illinois Laborers’ Local 703 a/w Laborers’
International Union of North America and G.A.
Rich & Sons, Inc. Cases 33–CD–429 and 33–CD–
430
June 14, 2004
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
The charge in this proceeding was filed on November 12,
2003,1 by G.A. Rich & Sons, Inc. (Employer), alleging
that Central Illinois Laborers’ Local 703 (Laborers) vio-
lated Section 8(b)(4)(D) of the Act by engaging in pro-
scribed activity with an object of forcing the Employer to
assign certain work to employees represented by the La-
borers rather than to employees represented by the
Plumbers & Pipefitters Local Union No. 149 (Plumbers).
Another charge was filed in this proceeding alleging that
Plumbers violated Section 8(b)(4)(D) of the Act by en-
gaging in proscribed activity with an object of preventing
the Employer from reassigning certain work originally
assigned to Plumbers to employees represented by La-
borers.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that the Employer, an Illinois
corporation, is a mechanical contractor conducting busi-
ness in the State of Illinois, and that, during the past cal-
endar year, the Employer purchased and received goods
at its facility in Illinois valued in excess of $50,000 di-
rectly from vendors located outside the State of Illinois,
and has received gross revenues in excess of $1 million.
The parties further stipulated, and we find, that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that Plumbers and
Laborers are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a mechanical and site-utility contrac-
tor performing commercial plumbing and site-utility

1 All dates herein are 2003, unless otherwise noted.
work throughout Illinois. The Employer is a signatory to
a collective-bargaining agreement with Plumbers, which
expires on May 31, 2006. The Employer is also a signa-
tory to collective-bargaining agreement with Laborers,
which expires on April 30, 2008. The bargaining rela-
tionships between the Employer and both labor organiza-
tions are predicated on Section 8(f) of the Act.
The work in dispute is located within the property lines
of the University of Illinois, Champaign/Urbana in
Champaign, Illinois. The University of Illinois hired
Williams Brothers as a general contractor for the con-
struction of the new Intramural Physical Education
Building (IMPE) and University Campus Recreational
Center. In the autumn of 2003, Williams Brothers sub-
contracted with the Employer to perform the plumbing
and site-utility work on the project. After the Employer
received the contract for the University of Illinois project
in the autumn of 2003, the Employer assigned the work
to employees represented by Plumbers. Thereafter, the
Employer received a telephone call from Laborers’ Busi-
ness Manager Marc Manuel. Manuel expressed his opin-
ion that all of the work at the University of Illinois pro-
ject was Laborers’ work. The Employer’s vice president,
Jack Gilbert, stated that he might be willing to put one
employee represented by Laborers on the job in order to
maintain good relations. Manuel rejected Gilbert’s offer.
According to Gilbert, Manuel then threatened to file a
grievance and picket the job if the work was not assigned
to employees represented by Laborers. Manuel denied
making these threats.
Thereafter, on October 8, Gilbert sent a letter to
Plumbers, formally assigning the University of Illinois
project to employees represented by Plumbers. Gilbert
sent a copy of this letter to Manuel who, on October 13,
sent a letter to the general contractor asserting that the
disputed work ought to have been assigned to employees
represented by Laborers. To support its position, Labor-
ers contended that an agreement dated January 23, 1941,
between the International Hod Carriers, Building and
Common Laborers’ Union of America and the United
Association of Journeymen Plumbers and Steam Fitters
of the United States and Canada (the 1941 Agreement)
provides that all work of the type disputed here is the
work of employees represented by Laborers.2
On October 27, Laborers filed a grievance against the
Employer, alleging that the Employer had violated the
parties’ collective-bargaining agreement by assigning the
disputed work to employees represented by Plumbers.

2 By its terms, the 1941 Agreement applies to “all work on subways,
tunnels, highways, viaducts, streets and roadways in connection with
sewers and water mains.” The 1941 Agreement is discussed below in
the section headed “Interunion agreements.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2
The Employer, in a letter dated November 20, denied
Laborers’ grievance and declined to participate in the
processing of the grievance. In a letter dated November
10, Plumbers informed the Employer that if it were to
reassign the disputed work to employees represented by
Laborers, Plumbers would “strike and picket the pro-
ject.” On November 12, the Employer filed the instant
charges against both labor organizations.
B. Work in Dispute
Although Laborers initially claimed the entire Univer-
sity of Illinois project, it disclaimed certain portions of
the project at the hearing. In accordance with Laborers’
clarification, the work in dispute is all work outside the
buildings related to site-sanitary sewer system, site-storm
sewer system, and underground drainage work, including
all unloading, scattering, grading trenches, hooking pipe,
setting pipe, all pipe connections, backfill and compac-
tion at the University of Illinois Campus Recreational
Center and IMPE project, within the property lines at the
University of Illinois Campus in Champaign/Urbana,
Illinois.
C. Contentions of the Parties
The Employer contends that a jurisdictional dispute
exists and that there is no agreed on method for resolving
the dispute. The Employer contends that there is reason-
able cause to believe that both Laborers and Plumbers
violated Section 8(b)(4)(D) of the Act, and that the work
in dispute should be awarded to the employees repre-
sented by Plumbers based on the factors of collective-
bargaining agreement, employer preference and past
practice, area and industry practice, economy and effi-
ciency of operations, and relative skills and training.
Laborers contends that there is no reasonable cause to
believe that Laborers violated Section 8(b)(4)(D) of the
Act. Laborers denies that Manuel threatened to picket
the University of Illinois job. Laborers further contends
that the work in dispute should be awarded to the em-
ployees represented by Laborers based on area practice
and the 1941 Agreement.
Plumbers contends that the Employer has properly as-
signed the disputed work to employees represented by
Plumbers. In so contending, Plumbers relies on the same
factors the Employer relies on: collective-bargaining
agreement, employer preference and past practice, area
and industry practice, relative skills and training, and
economy and efficiency of operations. Plumbers addi-
tionally relies on a 1998 arbitration decision that ad-
dresses the 1941 Agreement relied on by Laborers.3

3 The 1998 arbitration decision is discussed below in the section
headed “Interunion agreements.”
D. Applicability of the Statute
Before the Board may proceed with determining a dis-
pute pursuant to Section 10(k) of the Act, it must be es-
tablished that: (1) there are competing claims for the
work; (2) there is reasonable cause to believe that Section
8(b)(4)(D) has been violated; and (3) the parties have not
agreed on a method for the voluntary adjustment of the
dispute.4
We find that there are competing claims for the work
here in dispute. Plumbers has at all times claimed the
disputed work for the employees it represents, and these
employees have been performing the work. Laborers
initially claimed the entire University of Illinois project,
but disclaimed certain portions of the project at the hear-
ing. It is clear, however, that Laborers claims the dis-
puted work for the employees it represents.
We also find that there is reasonable cause to believe
that Section 8(b)(4)(D) of the Act has been violated. It is
undisputed that Plumbers, by way of a letter to the Em-
ployer, threatened to picket the job if the Employer reas-
signed the work in dispute to employees represented by
Laborers. Further, Gilbert testified that Manuel threat-
ened that Laborers would picket the job if the disputed
work were not reassigned to employees represented by
Laborers. Although Manuel denied making this threat,
his denial does not prevent the Board from proceeding
under Section 10(k). In order to proceed to a determina-
tion of the dispute, the Board need not rule on the credi-
bility of testimony, but need only find reasonable cause
to believe that the statue has been violated. Electrical
Workers Local 363 (U.S. Information Systems), 326
NLRB 1382, 1383 (1998).
Finally, the parties have stipulated that there is no
method for voluntary adjustment of the dispute to which
all parties are bound. We therefore find that all three
jurisdictional prerequisites are established, and the dis-
pute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573 (1961). The Board
has held that its determination in a jurisdictional dispute
is an act of judgment based on common sense and ex-
perience, reached by balancing the factors involved in a
particular case. Machinists Lodge 1743 (J.A. Jones Con-
struction), 135 NLRB 1402, 1410–1411 (1962).

4 Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422,
423 (2001); Teamsters Local 259 (Globe Newspaper Co.), 327 NLRB
619, 622 (1999); Laborers Local 113 (Super Excavators), 327 NLRB
113, 114 (1998).
PLUMBERS LOCAL 149 (G.A. RICH & SONS)

3
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of a Board certification concern-
ing the employees involved in this dispute. However, the
Employer is signatory to collective-bargaining agree-
ments with both Laborers and Plumbers. Plumbers in-
troduced its collective-bargaining agreement at the hear-
ing. Plumbers’ collective-bargaining agreement with the
Employer expressly refers to work of the kind that is in
dispute. The Employer introduced its collective-
bargaining agreement with Laborers. That collective-
bargaining agreement makes no mention of work of the
kind that is in dispute. Further, there is no testimony
regarding the applicability of Laborers’ collective-
bargaining agreement with the Employer. Accordingly,
we find that this factor favors an award of the disputed
work to employees represented by Plumbers.
2. Employer preference and past practice
The Employer’s vice president, Jack Gilbert, testified
that the Employer prefers to assign the work in dispute to
the employees represented by Plumbers. The Employer
introduced a list of 15 specific projects in which the type
of work at issue here was awarded to employees repre-
sented by Plumbers. Accordingly, we find that the factor
of Employer preference and past practice favors award-
ing the work in dispute to employees represented by
Plumbers.
3. Area and industry practice
Plumbers introduced letters from numerous contractors
in the Champaign/Urbana area on the factor of area prac-
tice. All the letters confirmed that plumbing jobs within
the property lines of the property owners, such as the
project here in dispute, are assigned exclusively to em-
ployees represented by Plumbers. Further, Plumbers
presented a decision by the National Joint Board for Set-
tlement of Jurisdictional Disputes, Building and Con-
struction Industry, confirming that it is industry practice
to assign work of the type here disputed to employees
represented by Plumbers. In its brief, Laborers contends
that the distinction between work inside property lines
and work outside property lines has never been followed
in the Champaign area. However, Laborers introduced
no evidence of area practice or industry practice, and its
unsupported contention is contradicted by the area prac-
tice evidence introduced by Plumbers. Accordingly, we
find that the factor of area and industry practice favors an
award of the work in dispute to employees represented
by Plumbers.
4. Economy and efficiency of operations
At the hearing, Laborers clarified that it was not claim-
ing all of the work on the project, but rather seeking a
split crew of employees represented by Plumbers and
employees represented by Laborers. The Employer’s
vice president, Jack Gilbert, testified that in his 32 years
as a contractor, he has never worked a job with a split
crew of Plumbers and Laborers. Gilbert testified that a
split crew would be “chaotic” and “inefficient,” and that,
as a result of employing a split crew, there would often
be times during which a group of employees would be
idle. Further, Gilbert testified that employing a split
crew could possibly increase labor costs because of pro-
visions of the collective-bargaining agreement concern-
ing the starting time and the minimum number of hours
for which employees must receive compensation. The
record establishes that employees represented by Plumb-
ers currently perform the disputed work in a competent
manner to the satisfaction of the Employer.
Although Plumbers’ business manager, Larry Swope,
testified in general terms about how Laborers-represented
employees might remain busy on a split crew, he also
testified that he had reviewed the blueprints of the project
at issue and that, in his opinion, it would be impossible to
keep both Plumbers and Laborers on a split crew busy the
entire day. The cost of employing a split crew is, on pa-
per, less costly per hour. However, the record shows that
employing a split crew would result in down time, caus-
ing the job to take longer than it would were it performed
by a crew of employees represented by Plumbers. There-
fore, when considering all the circumstances, employing a
crew of employees represented by Plumbers is more eco-
nomical and efficient than employing a split crew. Ac-
cordingly, the factor of economy and efficiency of opera-
tions favors awarding the work in dispute to employees
represented by Plumbers.
5. Relative skills and training
Work to be performed within the property lines of a
property owner (such as the work in dispute) requires a
greater skill level than does work to be performed outside
the property lines. As explained by Gilbert, work per-
formed outside property lines is more repetitious and less
complicated than work within property lines, which re-
quires more expertise and varied abilities, such as the
ability to read blueprints. According to Gilbert, the em-
ployees represented by Plumbers possess the requisite
skills to perform the disputed work while the employees
represented by Laborers do not. Plumbers presented tes-
timony establishing that all of the skills necessary to per-
form the disputed work are taught in the Plumbers’ train-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

4
ing program, which has been in effect for the past 50
years.
Laborers presented testimony regarding its apprentice-
ship program, which has been in existence for the past 5
years. Many of the employees represented by Laborers
have not participated in the program. Laborers offered
little detail about the skills taught in its program, but La-
borers concedes that certain skills necessary to complete
the disputed work, such as blueprint reading, are not
taught in its program.
Thus, while the record clearly establishes that employ-
ees represented by Plumbers have the skills and training
necessary to perform the work in dispute, the record does
not establish that employees represented by Laborers
possess the necessary skills and training. Accordingly,
we find that the factor of relative skills and training fa-
vors an award of the work in dispute to employees repre-
sented by Plumbers.
6. Interunion agreements
Laborers contends that the 1941 Agreement favors an
award of the work in dispute to employees represented
by Laborers. Plumbers contends that the 1941 Agree-
ment favors an award of the work in dispute to employ-
ees represented by Plumbers because the agreement was
“clarified” by a 1998 arbitral decision allocating piping
work inside property lines to Plumbers and piping work
outside the property line to Laborers.
We find that the 1941 Agreement and the arbitral deci-
sion do not support either Laborers’ or Plumbers’ conten-
tion. As stated above, supra fn. 2, the 1941 Agreement
applies to “all work on subways, tunnels, highways, via-
ducts, streets and roadways in connection with sewers and
water mains.” None of the work in dispute here involves
a subway, tunnel, highway, viaduct, street, or roadway.
The 1941 Agreement was also introduced into evidence in
the 1998 arbitration, referenced above, of a jurisdictional
dispute between Laborers’ International Union of North
America (LIUNA) and the United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe Fitting
Industry (UA). In that case, the work in dispute included
the installation of water mains, sewer and storm systems,
a fire main, and associated piping “on site outside the
building and within the private property line” of a truck
assembly plant. Noting that the 1941 Agreement limits
LIUNA’s “participation in piping activities” to “work on
subways, tunnels, highways, viaducts, streets and road-
ways,” the arbitrator found that “[t]he work in question
clearly does not fall within the 1941 description.” We
find likewise with respect to the work in dispute here.
Further, contrary to Plumbers’ contention, the 1998 arbi-
tral decision expressly declines to draw a distinction be-
tween work performed inside the property line and work
performed outside the property line. Accordingly, the
1941 Agreement and the arbitral decision do not favor an
award of the disputed work to either group of employees.5
Conclusions
After considering all the relevant factors, we conclude
that employees represented by Plumbers are entitled to
perform the work in dispute. We reach this conclusion
relying on the factors of collective-bargaining agree-
ments, employer preference and past practice, area and
industry practice, economy and efficiency of operations,
and relative skills and training. In making this determi-
nation, we are awarding the disputed work to employees
represented by Plumbers, not to that labor organization
or its members. This determination is limited to the con-
troversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of G.A. Rich & Sons, Inc., represented
by Plumbers & Pipefitters Local Union No. 149 are enti-
tled to perform all work outside the buildings related to
site-sanitary sewer system, site-storm sewer system, and
underground drainage work, including all unloading,
scattering, grading trenches, hooking pipe, setting pipe,
all pipe connections, backfill and compaction at the Uni-
versity of Illinois Campus Recreational Center and IMPE
project, within the property lines at the University of
Illinois Campus in Champaign/Urbana, Illinois.
2. Central Illinois Laborers’ Local 703 is not entitled
by means proscribed by Section 8(b)(4)(D) of the Act to
force G.A. Rich & Sons, Inc., to assign the disputed
work to employees represented by it.
3. Within 14 days from this date, Central Illinois La-
borers Local 703 shall notify the Regional Director for
Region 33 in writing whether it will refrain from forcing
G.A. Rich & Sons, Inc., by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner in-
consistent with this determination.

5 Because the Employer was not a party to the agreement or to the
arbitral proceeding, Chairman Battista would give little weight to them
even if they were otherwise relevant to the issue involved herein. See
Iron Workers Local 1 (Goebel Forming), 340 NLRB 1158, 1161
(2003).