Plumbers, Local 58

National Labor Relations Board - Board Decisions

Aug 23, 1972

198 N.L.R.B. 1032 (N.L.R.B. 1972)

1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices of Plumbers and the Laborers are labor organizations
the Plumbing and Pipe Fitting Industry of the within the meaning of Section 2(5) of the Act.
United States & Canada, Local No. 58, AFL-CIO
and Carrothers Construction Company, Inc. and
International Laborers Union of North America,
Local Union No. 578, AFL-CIO. Case 27-CD-138
August 23, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Carrother's Construction Com-
pany, Inc., herein called Employer, alleging a
violation of Section 8(b)(4)(D) of the Act by United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States & Canada, Local No. 58, AFL-CIO, herein
called Plumbers. Pursuant to a notice, a hearing was
held on April 17, 1972, in Colorado Springs,
Colorado, before Hearing Officer Allison C. Nutt.
The Employer, the Plumbers, and International
Laborers Union of North America, Local Union No.
578, AFL-CIO,' herein called Laborers, appeared at
the hearing and were all afforded full opportunity to
be heard, to examine and cross-examine witnesses,
and to adduce evidence bearing on the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
Upon the basis of the entire record in this case, the
Board makes the following findings:
1. THE BUSINESS OF THE COMPANY
The parties stipulated, and we find, that the
Employer is a Kansas corporation presently engaged
in constructing an addition to the municipal sewage
plant at Colorado Springs, Colorado.2
II. THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that the
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer, as general contractor, has a
contract with the city of Colorado Springs , Colorado,
to install additional facilities at the municipal sewage
disposal plant within the city . The contract calls for
construction and installation of tanks and settling
basins which will be connected to existing facilities
and interconnected by underground piping of cast
iron , steel , or virtified clay. Installation of the
underground piping is the work in dispute here.
The Employer, which has collective-bargaining
agreements with Laborers and four other AFL-CIO
building trade unions , but not with Plumbers, in
accordance with its usual practice, assigned the
pipelaying work to its employees represented by
Laborers . 3 Thereafter, from January 12, 1972, the
Plumbers picketed the project with signs stating that
the Employer was paying substandard wages. All
crafts except Laborers refused to cross the picket line
and the project was delayed.
The parties stipulated that there is no agreed-upon
method for settling jurisdictional disputes by which
all parties are bound and that there are no outstand-
ing Board certifications which apply to any of the
work involved herein . There is no contention that
either Union is unable to supply qualified men to
perform the work in dispute.
B. The Work in Dispute
As noted above , this dispute concerns the assign-
ment of the work involved in the installation of the
yard piping for the additional facilities being con-
structed at the municipal sewage disposal plant
within the city of Colorado Springs , Colorado.
C. Contentions of the Parties
Two briefs were filed in this case , one in behalf of
the Employer and Laborers and one in behalf of
Respondent. In all respects the Laborers position
coincides with that of the Employer.
The Employer assigned the work in dispute to
employees represented by the Laborers and favors
that assignment rather than one to members of the
Plumbers . To support this position it introduced
evidence that its past practice and that of the area,4
I The Laborers was allowed to intervene at the heanng since it claims the
work in dispute
2 During its most recent fiscal year the Employer performed services
outside of the State of Kansas valued at more than $50 ,000 and received
goods which came to it directly from other States valued at more than
$50,000.
3 Work on the project began in September 1971 and will not be
completed until about July 1973
4 At the hearing and in their brief the Employer and Laborers argued
that the Board should determine this dispute with respect to the entire state
198 NLRB No. 145
PLUMBERS, LOCAL 58 1033
plus the factors of efficiency and economy, favor
assignment of the disputed work to laborers. The
Employer also contends that the disputed work is
covered by the jurisdictional section of its collective-
bargaining agreement with Laborers, which favors its
assignment since it has no such agreement with
Plumbers. Finally it contends that skill is not a factor
here because the piping involved is prefabricated,
requiring no fabrication of pipe on the job which
would necessitate skills not possessed by laborers.
The Plumbers has two basic contentions. First it
contends that there is insufficient evidence in the
record of this case to establish reasonable cause to
believe that Section 8(b)(4)(D) of the Act has been
violated, and accordingly it has moved, in its brief, to
quash the notice of hearing and dismiss the com-
plaint against it. Second, it argues, in the alternative,
that on the merits employees represented by Plumb-
ers should be awarded the disputed work because
factors such as skill and past practice in the area
favor such an award.
D. Applicability of the Statute
The charges herein allege a violation of Section
8(b)(4)(D) of the Act. The record shows that on
December 29, 1971, Plumbers sent a letter to the
Employer demanding it pay the area union wage
rate. On January 12, 1972, Plumbers set up a picket
at the jobsite informing the public that the Employer
was not paying the union rate. Evidence submitted at
the hearing shows that none of the trade union
employees working on the site, except laborers,
would cross the picket and the project thereby
suffered some delays. On January 18, 1972, repre-
sentatives of Laborers and Plumbers met and George
Dragosh, business representative of Plumbers, alleg-
edly stated that the picket would remain until
plumbers got the disputed work. Although Mr.
Dragosh denied making the aforementioned state-
ment, we find it unnecessary to resolve this conflict
in testimony since the record contains a telegram
dated January 21, 1972, from the Plumbers to the
Laborers, wherein the existence of a jurisdictional
dispute is acknowledged.
We find, therefore, that there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has
occurred and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.5
of Colorado. To that end they argued the area practice in Colorado as a
whole , as well as in Colorado Springs, the situs of the instant dispute For
reasons discussed infra we have considered the scope of this dispute as
limited to Colorado Springs
3 Because of this finding , Plumbers motion to quash the notice of hearing
and dismiss the complaint is hereby denied
E.' Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after taking
into account the evidence supporting the claims of
the parties and balancing all relevant factors.6
We shall set forth below those factors which we
find relevant in determining the dispute herein.
1. Employer's assignment
It was established in the record that the Employer
assigned the disputed work, from the beginning of
the project, to employees represented by Laborers
and prefers that assignment.
Accordingly, consideration of employer assign-
ment favors award of the disputed work to laborers.
2. Collective-bargaining agreements
The Employer is party to a statewide contract for
heavy-highway and engineering construction in
Colorado, to which Laborers is also signatory, that
covers the work in dispute in its jurisdictional
section. The agreement does not require that the
disputed work be assigned to laborers but it does
include such work as being within the claimed
jurisdiction of Laborers.
The Employer has no collective-bargaining agree-
ments with Plumbers.
We thus find that this factor favors awarding the
disputed work to laborers.
3. Skill and training
Plumbers contends, and the record bears out the
fact, that plumbers are highly skilled, with extensive
training in their craft, while laborers are generally
untrained. However, the record also shows that the
work involved in this dispute is relatively uncompli-
cated and does not require the degree of skills
possessed by plumbers. Thus, the evidence shows the
piping herein is prefabricated, requiring only simple
coupling accomplished with unsophisticated tools
such as wrenches that are easily handled by laborers.
We therefore find that considerations of skill and
training do not favor either plumbers or laborers, as
both possess the necessary ability to perform the
particular work involved in the instant dispute.
4. Efficiency and economy of operation
The Employer at this time is successfully using
6 N LR B v. Radio & Television Broadcast Engineers Union , Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S 573; International Association of Machinists,
Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB
1402,1410-11
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three laborers to man the crew doing the disputed
work. These men perform all the operations involved
in the installation of the piping, including trenching,
laying the pipe, and backfilling. If plumbers were
used for laying the pipe two additional men would
have to be hired because the same number of
laborers would still be needed for trench preparation
and backfilling. Additionally, the record indicates
that a composite crew would not be as efficient as the
present crew because plumbers would only be doing
a single operation and would therefore have to wait
around while the trench was dug and then later
refilled. Thus the combined effect of using plumbers
would be to prolong the job and increase its cost.
We find therefore that the factors of efficiency and
economy of operation militate in favor of awarding
the disputed work to employees represented by
Laborers.
5. Employer's past practice
The Employer introduced evidence that laborers
have been used for practically all of the previous
yard piping it has done. Although Plumbers correctly
points out that the Employer had not done work in
the immediate Colorado Springs area previous to this
and another job currently under way, it is using
laborers on these two projects. Nevertheless, direct-
ing our attention under this section to the Employer's
practice and not to the area practice, the record is
clear that the Employer generally uses laborers to do
this particular work.
We thus find that the Employer's past practice,
although not a controlling factor, does favor award
of the disputed work to laborers.
6. Area practice
As to the Colorado Springs area practice, we agree
with the Respondent that the evidence is somewhat
less than conclusive. Both parties agree that the
nature of the work varies as to the degree of
difficulty, etc., resulting in the use of plumbers on
some occasions and laborers on others. Significant in
this regard is evidence submitted by the Employer
that on previous expansion projects involving this
same treatment plant laborers did the yard piping
which was similar to the work in issue on the present
expansion.
In light of all of the circumstances, we find the
practice in the Colorado Springs area favors assign-
ment of the disputed work to laborers.
7. Extent of award
The parties spent considerable time and gave
particular attention to the question of whether the
relevant considerations in this case are local, i.e.,
Colorado Springs area, or statewide. Although some
factors with incidental statewide aspects , such as the
Colorado collective-bargaining agreement to which
the Employer and Laborers are parties , were consid-
ered, as indicated, supra, we are of the opinion that
the dispute herein is local and should be limited to
the work on this job. We hold this opinion particular-
ly in view of the absence of any past history of
disputes between the parties.
CONCLUSION
Upon consideration of all pertinent factors in the
entire record, we conclude that the work in dispute
involves the installation of the yard piping for the
additional facilities being constructed at the munici-
pal sewage disposal plant within the city of Colorado
Springs, Colorado, and such work should be assigned
to the employees represented by the Laborers rather
than those represented by the Plumbers. We reach
the conclusion relying on the Employer's assignment,
the collective-bargaining agreement between the
Employer and Laborers, the factors of efficiency and
economy of operation, and the Employer's past
practice.
Accordingly, we shall award the disputed work to
those employees who are represented by the Labor-
ers and not those represented by the Plumbers. Our
present determination is limited to the particular
dispute which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the foregoing
findings and the entire record in this proceeding, the
National Labor Relations Board makes the following
Determination of Dispute:
1. Employees of Carrothers Construction Compa-
ny, Inc., Paolo, Kansas, currently represented by
International Laborers Union of North America,
Local Union No. 578, AFL-CIO, are entitled to
perform the work of installing the yard piping on the
expansion of the municipal sewage disposal plant in
Colorado Springs, Colorado.
2. United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry
of the United States & Canada, Local No. 58,
AFL-CIO, is not entitled, by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require
Carrothers Construction Company, Inc., to assign
the above work to plumbers represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, United Association
of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States & Canada,
PLUMBERS , LOCAL 58 1035
Local No. 58, AFL-CIO, shall notify the Regional by Section 8(b)(4)(D) of the Act, to assign the work
Director for Region 27, in writing, whether or not it in dispute in a manner inconsistent with the above
will refrain from forcing or requiring Carrothers determination.
Construction Company, Inc., by means proscribed