Plumbers Local No. 32

National Labor Relations Board - Board Decisions

Jun 25, 1971

191 N.L.R.B. 573 (N.L.R.B. 1971)

PLUMBERS LOCAL NO. 32
Plumbers and Pipefitters Local No. 32, affiliated with
the United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the
United States and Canada , AFL-CIO and Tacoma
Chapter of the Associated General Contractors of
America, Inc. and Maintenance and Construction
Service, Inc . and Laborers Local Union No. 893,
Laborers International Union of North America,
AFL-CIO. Case 19-CD-173
June 25, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, BROWN, AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed on December 31, 1970, by the Tacoma
Chapter of the Associated General Contractors of
America, Inc., hereinafter called AGC, an employers'
association of construction contractors, on behalf of
Maintenance and Construction Service, Inc., here-
inafter called Maintenance, alleging that Plumbers and
Pipefitters Local No. 32, affiliated with the United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO, hereinafter called Plumbers,
had violated Section 8(b)(4)(D) of the Act. A hearing
was held pursuant to notice at Seattle, Washington, on
March 30, and April 19, 1971, before Hearing Officer
John M. Cronin. The Charging Party, the Plumbers,
and Lord Bros. Contractors, Inc., hereinafter called
Lord, appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the issues.
The Laborers Local Union No. 893, Laborers Interna-
tional Union of North America, AFL-CIO, hereinafter
called the Laborers, made no appearance. However, a
Laborers representative was present during the second
day of hearing and gave the Laborers position in this
matter. Thereafter, Maintenance and the Plumbers
filed briefs.
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:
191 NLRB No. 103
I. THE EMPLOYERS
573
The parties stipulated that Maintenance, the general
contractor herein, is an Oregon corporation with its
principal place of business located in Oregon City, Ore-
gon; that it has an office located in the State of Wash-
ington at Port Townsend, where it is involved in the
construction of a process and treatment plant for
Crown Zellerbach Corporation hereinafter called
Crown; and that Maintenance's contract with Crown is
valued in excess of $1 million. The parties also stipu-
lated that Maintenance and Lord, the general contrac-
tor and subcontractor respectively herein, are employ-
ers within the meaning of the Act. Upon the facts so
stipulated, we find that both Maintenance and Lord are
engaged in commerce within the meaning of the Act
and that it will effectuate the purposes of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that the Plum-
bers and the Laborers are labor organizations within
the meaning of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute is the placing and joining of
reinforced concrete pipe and related work on that por-
tion of Maintenance 's work subcontracted to Lord on
the Crown jobsite.
B. Background and Facts of the Dispute
In June 1970, Maintenance was awarded the con-
tract to construct a process and treatment plant at Port
Townsend, Washington, by Crown. The project in-
cluded a large network of underground pipe, running
from the main plant to the treatment plant under con-
struction and into the sea. Many different types of pipe
were used, including steel, vitrified clay, and reinforced
concrete. Most of the pipework was done within the
boundaries of the Crown plant. The Plumbers has
made no claim for the work of laying reinforced con-
crete pipe outside plant premises.'
All pipework was done by employees of Mainte-
nance, except for the installation of process sewerlines
of reinforced 30-inch concrete pipe, the disputed work
herein, which was subcontracted on November 30,
1970, by Maintenance to Lord, a company which spe-
cializes in the laying of sewer pipes and reinforced
concrete pipes.
' A sewerline which transverses public property between the plant prop-
erty and the outfall into the sea was completed by Lord with employees
represented by Laborers without incident.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lord uses employees who are members of the Team-
sters to transport the reinforced concrete pipe to the
jobsite and employees represented by Operating Engi-
neers to operate the earthmoving and power equipment
in laying the pipe into the ditches. Laborers employed
by Lord who are members of the Laborers guide the
pipe into place, place the rubber gaskets on the spigot
end of the pipe, and then place the spigot end into the
bell end for final joining. The pipe is then sealed with
mortar. The laborers also assist in backfilling the ditch.
Similar work is done in laying vitrified clay pipe, which
is performed by plumbers, except that clay pipe is
joined by merely fitting two different sized sections of
pipe into each other. Steel pipe is welded and indisputa-
bly within the sphere of plumbers.
Paul Holmes , the Plumbers business representative,
testified that some time between December 15 and 21,
1970, he visited the Crown jobsite and informed the
assistant superintendent , Jim Hart, that the disputed
work came under the Plumbers jurisdiction. Holmes
also stated that he demanded that Maintenance require
Lord to become a party to the master agreement be-
tween Plumbers and the Plumbing and Pipefitting In-
dustry of the Seattle Area, as required of Maintenance
in article IX, section 2, thereof,' with which Mainte-
nance had agreed to comply in a separate agreement.
According to Curtis Allen, Maintenance's president,
Holmes telephoned him on December 17 and told him
to get Lord to sign an agreement with the Plumbers or
to get them off the job. Allen also testified that the next
day Holmes telephoned him again and told him that "I
should break away from my meeting and call him and
tell him that Lord Bros. was off the job or else I was
in bad trouble."
Holmes admitted that, after Lord began laying the
reinforced concrete pipe using laborers, the Plumbers
authorized a work stoppage among the plumbers em-
ployed by Maintenance. According to both Holmes
and Manuel Carter, Maintenance's job superintendent,
the plumbers would all cease work for Maintenance
during those periods when Lord used laborers in laying
and joining the reinforced concrete pipes. The plum-
bers would stand adjacent to the ditch where the labor-
ers were working. After the pipe was laid, the plumbers
would return to their assigned jobs for Maintenance.
The uncontradicted evidence shows that from Decem-
ber 21, 1970, to January 4, 1971, the plumbers engaged
in the aforesaid conduct on 10 separate occasions.
On December 1, 1970, Maintenance and Lord made
application for a visiting contractor membership in the
Tacoma Chapter of the Associated General Contrac-
3 Article IX, section 2, provides that "the Employer shall not subcontract
or otherwise transfer in whole or in part any plumbing or pipefittmg work
unless the person, firm , partnership, joint venture or corporation , to whom
the work is subcontracted or transferred , has signed this agreement "
tors of America. According to the uncontradicted tes-
timony of Allen, shortly thereafter he was informed by
the AGC that Maintenance's application to the AGC
had been accepted. Maintenance had never been a
member of the AGC previously. However, Lord was at
the time of its December 1 application for a visiting
contractor membership already a member of the AGC.
Herbert Lobdell, the Laborers International represent-
ative stated that the Laborers at the present time is in
noncompliance with the National Joint Board for the
Settlement of Jurisdictional Disputes, hereinafter
called the Joint Board.
On January 13, 1971, representatives of the Plum-
bers and the Laborers executed a document stating that
there was no dispute between them as to the disputed
work and that the work is properly within the Plum-
bers jurisdiction.
C. Contentions of the Parties
Maintenance and Lord take the position that the
assignment of the disputed work to the employees of
Lord represented by the Laborers should not be
changed because this assignment is efficient, economi-
cal, and has proven satisfactory. They also rely on the
fact that Lord has a consistent history of assigning the
disputed work to laborers and on Lord's collective-
bargaining agreement with the Laborers. They further
contend that, as members of the AGC, they are no
longer bound by the Joint Board.
The Plumbers contends that there is no reasonable
cause to believe that Section 8(b)(4)(D) has been vi-
olated since its dispute was with Maintenance, all ac-
tions taken were against Maintenance, the actions were
taken to protect the unit work outlined in its contract
with Maintenance, and it did not attempt to force Lord
to do anything, let alone require Lord to assign the
disputed work to it. It also argues that there is no
evidence of any unlawful conduct or demand being
made against Maintenance. In addition, it asserts that
there is no dispute between the two Unions over the
disputed work and therefore no jurisdictional dispute
exists. Plumbers contends that once the two labor orga-
nizations involved in an alleged jurisdictional dispute
have agreed to a settlement of the alleged disputed
work or to be bound by a method for the voluntary
adjustment of such disputes, as here, since both Unions
are members of the Building and Construction Trades
Department, AFL-CIO, and as such bound to the
Joint Board, the Board has no jurisdiction to hear the
matter. Finally, the Plumbers relies on certain arbitra-
tion and Joint Board awards, its contract with Mainte-
nance, and area and industry practice and disputes the
contentions of Maintenance and Lord concerning
economy, skills, and safety.
PLUMBERS LOCAL NO. 32 575
The Laborers, as stated by its International Repre-
sentative, Lobdell, in his testimony at the hearing,
makes no claim to the joining of the reinforced concrete
pipe when done inside a plant premises such as is in-
volved herein, but does claim the work of laying the
pipe and other related work. However, it will be sat-
isfied with a composite crew of plumbers and laborers.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute, pursuant to Section 10(k) of the Act, it
must be -satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated. As set
forth previously, it is undisputed that the Plumbers
caused 10 work, stoppages and refused to work for
Maintenance while the laborers were performing the
disputed work for Maintenance's subcontractor, Lord,
because of the Plumbers claim to perform all the rein-
forced concrete pipework on the Crown plant premises.
We find that the whole purpose of the Plumbers
work stoppages was to insure that its plumbers em-
ployed by Maintenance would obtain the disputed
work which was awarded by Maintenance to Lord and
Lord's employees represented by Laborers. Thus, the
Plumbers ultimate objective was to compel Mainte-
nance to cancel its contract with Lord and thereby
cause the disputed work to be assigned to Plumbers
members instead of to the Laborers members employed
by Lord who were doing it at the time. The Board has
held consistently, and we adhere to the view, that Sec-
tion 8(b)(4)(D) applies to such attempts to force a
change in a subcontracting assignment. We also con-
clude that there exists no effective method for the
voluntary adjustment of the dispute, within the mean-
ing of Section 10(k), as Maintenance and Lord, as
members of the AGC, are not bound by the decisions
of the Joint Board, and the Laborers is in noncompli-
ance with the Joint Board.3
Before making a jurisdictional dispute determina-
tion, the Board is not required to find that a violation
of Section 8(b)(4)(D) did in fact occur, but only that
reasonable cause exists to find such a violation. With-
out ruling on the credibility of the testimony in issue,
on the basis of the entire record, we find that there is
reasonable cause to believe that a violation has oc-
3 On April 9, 1971, the Board's Associate Executive Secretary, by direc-
tion of the Board, denied the Plumbers appeal from the Hearing Officer's
refusal to grant motion to quash notice of hearing, in which Plumbers had
asserted that the Plumbers and Laborers had reached a voluntary adjust-
ment of the dispute; that the parties to the dispute, the Plumbers, the
Laborers, and the "Employer," Maintenance, have all agreed to resolve any
alleged jurisdictional disputes through the Joint Board; that the Plumbers
had no proscribed Section 8(b)(4)(D) objective as the "object" of its conduct
was merely to force Maintenance to comply with its agreement that its
Subcontractors be parties to the master agreement; and that the case is moot
as the work has been completed.
curred and that the dispute is properly before the Board
for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving due
consideration to various relevant factors ." The Board
has held that its determination in a jurisdictional dis-
pute is an act of judgment based on common sense and
experience reached by balancing those factors involved
in a particular case.'
The following factors are relevant in making the de-
termination of the dispute before us:
1. Company practice
Lord presented evidence that it has consistently
throughout its history assigned the disputed work to its
employees who are , represented ,by the Laborers and
that since the commencement of its work on the Crown
jobsite it has assigned the disputed work to its em-
ployees represented by the Laborers.
The Plumbers adduced evidence that it installed steel
and vitrified clay pipe for Maintenance prior to Main-
tenance's subcontracting the disputed work to Lord.
2. Skills of the employees
As mentioned above, Lord has consistently assigned
the disputed work throughout its existence to em-
ployees represented by the Laborers and is satisfied
along with Maintenance with the skills and safety per-
formance of these employees.
Plumbers asserts that the record is devoid of any
evidence that Maintenance was dissatisfied with the
skills or safety performance of its members before it
subcontracted the disputed work to Lord. However,
the record shows that while the members of the Plum-
bers have laid steel and vitrified clay pipe for Mainte-
nance on the Crown site, they have never laid rein-
forced concrete pipe for Maintenance as Maintenance
regularly subcontracts all such work.
3. Economy
Lord adduced testimony that it is more economical
to assign the disputed work to its employees repre-
sented by the Laborers since a laborer receives a rate
of pay less than that of a plumber.
N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers (Columbia Broadcasting
System), 364 US 573.
S International Association of Machinists, Lodge No. 1743 (J. A. Jones
Construction Company), 135 NLRB 1402.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Collective-bargaining agreements
Neither labor organization has been certified by the
Board. Lord, the Employer with immediate authority
to assign the disputed work, assigned it to its employees
represented by the Laborers in conformance with its
contract, as a member of the AGC, with the Laborers.
The Plumbers adduced evidence that on July 8, 1970,
an agreement was entered into between the Plumbers
and Maintenance covering industrial piping. By the
agreement's terms, Maintenance agreed to comply with
all of the terms and conditions of employment con-
tained in the master collective-bargaining agreement
between the Plumbers and the Plumbing and Pipefit-
ting Industry of the Seattle Area, effective from Janu-
ary 3, 1968, through December 29, 1970.6 But there is
no evidence that Lord was party to any arrangement
entered into by Maintenance with the Plumbers as in-
dicated by the fact that Lord testified that as a member
of the AGC it has its own agreement with the Laborers.
CONCLUSIONS
Upon the record as a whole, and after full considera-
tion of all relevant factors, we believe that the work in
dispute should be assigned to laborers employed by
Lord and currently represented by the Laborers, rather
than to plumbers represented by the Plumbers. We
reach this conclusion relying on: Lord's assignment of
the placing and joining of reinforced concrete pipe and
related work to its own employees; the fact that the
assignment is consistent with Lord's past practice; the
fact that Lord's employees possess the requisite skills;
the fact that the assignment to Lord's employees will
result in economy of operations; and Lord's collective-
bargaining agreement with the laborers.
In making this determination, we shall award the
disputed work to Lord's employees who are repre-
sented by the Laborers but not to that- Union or its
members. In consequence, we shall also determine that
6 A new agreement was negotiated in the latter part of 1970, effective
December 30, 1970, through May 31, 1972
the Plumbers was not and is not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force or
require Maintenance to assign all the disputed work to
its members. Our present determination is limited to
the particular controversy which gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and on the basis of the forego-
ing findings and the entire record in this case, the Na-
tional Labor Relations Board makes the following
determination of dispute:
1. Laborers employed by Lord Bros. Contractors,
Inc., currently represented by Laborers Local Union
No. 893, Laborers International Union of North
America, AFL-CIO, are entitled to perform the fol-
lowing work:
Placing and joining of reinforced concrete pipe
and related work on that portion of the work of
Maintenance and Construction Service, Inc., sub-
contracted to Lord Bros. Contractors, Inc.
2. Plumbers and Pipefitters Local No. 32, affiliated
with the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO, is not enti-
tled by means proscribed by Section 8(b)(4)(D) of the
Act to force or require Maintenance and Construction
Service, Inc., to assign all the above-described work to
plumbers.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Plumbers and Pipefitters
Local No. 32, affiliated with the United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
AFL-CIO, shall notify the Regional Director for Re-
gion 19, in writing, whether it will refrain from forcing
or requiring Maintenance and Construction Service,
Inc., by means proscribed by Section 8(b)(4)(D) of the
Act, to assign the work in dispute to plumbers whom
it represents rather than to laborers who are repre-
sented by the Laborers Local Union No. 893, Laborers
International Union of North America, AFL-CIO.