DECISIONS OF NATIONAl LABOR RELATIONS BOARD
Sprinkler Fitters Local 703, United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada, AFL-CIO and Airco Carbon, Div.
of Airco, Inc. and Gross Plumbing and Heating
Company, Inc. and Laborers International
Union of North America, Local No. 91, AFL-
CIO and Oil, Chemical and Atomic Workers
International Union, Local 8-615. Case 3-CD-
539
May 28, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Airco Carbon, Div. of Airco,
Inc., herein called Airco, alleging that Sprinkler
Fitters Local 703, United Association of Journey-
men and Apprentices of the Plumbing and Pipefit-
ting Industry of the United States and Canada,
AFL-CIO, herein called the Sprinkler Fitters, had
violated Section 8(b)(4)(D) of the Act by engaging
in certain proscribed activity with an object of
forcing or requiring Gross Plumbing and Heating
Company, Inc., herein called Gross Plumbing, to
assign certain work to its members rather than to
employees represented by Laborers International
Union of North America, Local No. 91, AFL-
CIO, herein called the Laborers.'
Pursuant to notice, a hearing was held before
Hearing Officer Marjorie Murray on September 8
and 21, 1981. All parties appeared and were afford-
ed 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 Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding 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 af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE CHARGING PARTY
The parties stipulated, and we find, that Airco, a
New York State corporation with its principal
place of business in Niagara Falls, New York, is
i A representative of Oil, Chemical and Atomic Workers International
Union, Local 8-615, herein called the OCAW, appeared at the hearing
but disclaimed any interest in the work in dispute.
261 NLRB No. 162
engaged in the manufacture of graphitized elec-
trodes and anodes. During the past year, Airco
purchased and received goods and materials having
a value in excess of $50,000 shipped directly to it
from points outside the State. The parties also stip-
ulated, and we find, that Airco is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and that it will effectuate the purposes
of the Act to assert jurisdiction herein.
II. THE L ABOR ORGANIZATIONS INVOI.VED
The parties stipulated, and we find, that the
Sprinkler Fitters and the Laborers are labor organi-
zations within the meaning of Section 2(5) of the
Act.
111. THE DISPUTE
A. Background and Facts of the Dispute
During the spring of 1981,2 Airco invited bids
among area contractors, including Gross Plumbing,
to revamp the water system at its Niagara Falls
plant. Gross Plumbing submitted its bid on June 11,
and it was accepted in early July. A formal con-
tract with Airco was signed on July 26.
John A. Figler, superintendent for Gross Plumb-
ing, testified that, sometime in June, William G.
Thompson, the Sprinkler Fitters business manager,
called him to discuss the awarding of the contract
to install a dual-purpose water sprinkler and do-
mestic waterline at the Airco jobsite. Figler told
Thompson that Gross Plumbing was the low
bidder but no award had yet been made. Thomp-
son then asked Figler who Gross Plumbing was
going to put on the job. Figler replied that if it re-
ceived the job it would employ workers from the
Laborers and the OCAW. Thompson responded
that the proposed work at Airco was sprinkler fit-
ters' work. Figler suggested that he discuss the
matter with the Laborers and the OCAW.
On August 3, the Sprinkler Fitters began picket-
ing at the Airco jobsite with signs bearing the
legend "Information Only, Persons Employed by
John J. Gross Plumbing and Heating Inc. on this
job site to perform sprinkler fitters' work are not
members of Sprinkler Fitters Union, Local 703,
United Association of the Plumbers and Pipefitters
International affiliated with the AFL-CIO."
Arthur A. Hensel, personnel manager at Airco,
testified that on August 4 he called the Sprinkler
Fitters headquarters in the hope that it would
remove the pickets from the worksite so that emer-
gency repair work could be done at the plant by an
electrician who refused to cross the picket line. Ac-
2 All dates are in 1981 unless otherwise stated.
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SPRINKLER FITTERS LOCAI. 703
cording to Hensel's testimony, Thompson refused
his request, adding, however, that something might
be arranged as to the picket if Airco were willing
to sign a contract with the Grinnell Company, a
contractor that had a collective-bargaining agree-
ment with the Sprinkler Fitters. The next day
Thompson called Hensel and while talking about
the emergency work at Airco mentioned that the
situation could be resolved if Airco pulled Gross
Plumbing off the job and used the Grinnell Compa-
ny. On August 6 Hensel called Thompson and told
him that Airco was satisfied with Gross Plumbing
and unwilling to change contractors.
According to Thompson's testimony, he called
Figler several times between the last week in June
and the second week in July to find out whether
Gross Plumbing was going to sign a successor con-
tract with Respondent,3 and whether Gross Plumb-
ing was going to work on the Airco project.
Thompson averred that Figler was evasive, claim-
ing that Gross Plumbing had made no decision on
the contract and that the Airco job was still uncer-
tain.
As to the emergency work at the Airco plant,
Thompson testified that on August 4 he received a
call from Henry T. Shiro, International representa-
tive of the OCAW, who told him that a fire had
taken place at the Airco plant, and asked him to
call Hensel in order to allow the pickets to be re-
moved so that emergency repairs could be made.
Thompson called Hensel the next day, but no
agreement could be reached and the pickets re-
mained. However, Thompson asserted that during
their discussion he stated that he would remove the
pickets if Hensel would remove the Gross Plumb-
ing workers from the plantsite during the time that
repairs were being made. Thompson also asked
Hensel to drop the unfair labor practice charges he
had filed with the Board on August 4. Thompson
called Hensel again on August 6, and in the course
of their conversation told Hensel that, if Airco had
any problem with Gross Plumbing in the installa-
tion of the piping, the "Grinnell [Company] would
be glad to sit down and talk about the work." The
picketing continued until August 21, 1981.
B. The Work in Dispute
The parties at the hearing stipulated that the
work in dispute involves the installation of dual-
purpose waterlines at Airco's Niagara Falls work-
site.
3 The Sprinkler Fitters had a collective-bargaining contract with Gross
Plumbing which expired on June 30. 1981. There is no evidence in the
record, however, that Gross Plumbing had hired employees represented
by that Union during the time the contract was in effect. It should be
noted that Figler denied knowledge of any existing contractual relation-
ship
C. Contentions of the Parties
Airco contends that the Sprinkler Fitters violat-
ed Section 8(b)(4)(D) of the Act by seeking to
compel the assignment of the disputed work to its
members. Gross Plumbing submits that the evi-
dence shows that its employees represented by the
Laborers are entitled to the disputed work.
The Sprinkler Fitters takes the position that the
10(k) notice should be quashed. It asserts that it has
expressly disclaimed the work in dispute; that at no
time did it seek to displace Gross Plumbing's em-
ployees; and that it has engaged in peaceful picket-
ing to compel Gross Plumbing to execute a succes-
sor collective-bargaining agreement. It notes that
the record is devoid of any threats on its part to-
wards employees working at the Airco site or at-
tempts by the pickets to interfere with entering or
leaving site. In addition, the Sprinkler Fitters con-
tends that the Laborers, Gross Plumbing, and itself
are obligated through existing collective-bargaining
agreements to submit their jurisdictional disputes to
the Joint Board for Settlement of Jurisdictional
Disputes for determination.
The Laborers asserts that the Sprinkler Fitters
disclaimer of the work in dispute on the second
day of the hearing should not be given effect. In
addition, it contends that the record supports the
assignment of the disputed work to employees rep-
resented by it who are in the employ of Gross
Plumbing.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
The record contains testimony that the Sprinkler
Fitters business manager, Thompson, told Figler,
the superintendent for Gross Plumbing, that the
Airco job was sprinkler fitters' work. There is also
testimony that Thompson told Airco Personnel
Manager Hensel that the picketing of the Airco
jobsite could be resolved if Airco took Gross
Plumbing off the job and instead used the Grinnell
Company, which has a contract with the Sprinkler
Fitters. The record also contains evidence which
conflicts with the above testimony. However, in a
proceeding under Section 10(k) of the Act, the
Board is only required to find that there is reason-
able cause to believe that Section 8(b)(4)(D) has
been violated before making a determination of the
dispute out of which the alleged unfair labor prac-
1123
DECISIONS OF NATIONAL L.ABOR RELATIONS HOARD
tice has arisen. In so finding, we need not conclu-
sively resolve conflicts in testimony. 4 Accordingly,
we conclude that there is reasonable cause to be-
lieve that the Sprinkler Fitters picketed with an
object of forcing Airco to assign the work in dis-
pute to a contractor who would hire employees it
represents in violation of Section 8(b)(4)(D).5
At the close of the hearing, the parties stipulated
that the work in dispute at the Airco plantsite was
the installation of dual-purpose pipes. The attorney
for the Sprinkler Fitters then announced that his
client had no interest in installing dual-purpose
pipes. The Board has found that there is no dispute
where one of the competing groups has effectively
disclaimed the disputed work.6 However, the
Board has given no effect to a hollow disclaimer;
that is, a disclaimer presented for the purpose of
avoiding an authoritative decision on the merits. 7
That is the case presented here. By the last day of
the hearing, it would appear that much of the dis-
puted work had been completed. Indeed, the entire
project at the Airco site was expected to be fin-
ished around the end of October. There was there-
fore little left for the Sprinkler Fitters to disclaim.
Further, the Sprinkler Fitters waited until the end
of the hearing to assert its disclaimer. Thus, we
conclude that the Sprinkler Fitters did not desire to
resolve the dispute in this case and was seeking to
escape the consequences of its unlawful actions.
Under these circumstances, such an empty dis-
claimer cannot be given effect.
We also find without merit the Sprinkler Fitters
contention in its "Supplemental Memorandum"
that the parties have an agreed-upon method for
the voluntary settlement of the dispute. Both the
Sprinkler Fitters and the Laborers, as members of
the Building and Construction Trades Department,
AFL-CIO, are signatory to the agreement estab-
lishing the Joint Board for Settlement of Jurisdic-
tional Disputes and as such are obligated to submit
their jurisdictional disputes to the Joint Board for
determination. Similarly, Gross Plumbing is like-
wise bound by virtue of its collective-bargaining
contract with the Laborers. However, we are ad-
ministratively advised that since June 1, 1981, the
Joint Board has been inoperative, has ceased hear-
ing such disputes, and is incapable of administering
or policing a determination. In these circumstances,
4 International Brotherhood of Electrical Workers, Local Union 103 of
Greater Boston (Maki Electrical Inc), 227 NL.RB 1745 (1977).
5 Local Union No. 3, International Brotherhood of Electrical Workers,
AFL-CIO (Western Electric Company. Incorporated), 141 NLRB 888
(1963).
8 Local Union No. 55, Sheet Metal Workers International Association.
AFL-CIO (Gilbert L Phillips, Inc.), 213 NLRB 479 (1974).
7 Laborers' International Union of North America, Laborers' District
Council of Western Pennsylvania and Local 910, AFL-CIO (Brockway
Glass Company, Inc.), 226 NLRB 142, 143, 144 (1976).
we do not view the obligation by the parties herein
to submit its work disputes to the Joint Board to be
determinative of this case. 8
On the basis of the entire record, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred and that
there exists no agreed-upon method for the volun-
tary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Accordingly, we find
that this 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 factors. 9 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case. 10
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
Gross Plumbing has, or has had, collective-bar-
gaining agreements with both the Laborers and the
Sprinkler Fitters. Only the agreement with the La-
borers is current, and that agreement does not men-
tion the work in dispute. It does, however, contain
provisions covering "trench digging." To the
extent that trenches must be dug to prepare for the
installation of the waterlines involved, it may be
argued that these provisions favor an award, at
least of that portion of the work, to laborers. The
flaw in this argument is that the evidence does not
indicate whether the digging of trenches is consid-
ered to constitute an element of the disputed work.
Certainly, the actual installation of the pipes is not
encompassed by the term "trench digging." Conse-
quently, the ambiguity inherent in the meaning of
"trench digging" vis-a-vis the disputed work and its
scope requires us to reject any such argument. We
therefore cannot accord any weight to the laborers
agreement with Gross Plumbing in determining this
jurisdictional dispute.
As for the expired agreement with the Sprinkler
Fitters, it includes a jurisdictional provision, i.e.,
I Millwrights I.ocal Union No. 1862 and Spokane District Council of Car-
penters, United Brotherhood of Carpenters and Joiners of America, AFIL-
CIO0 (Jelco Inc.), 184 NLRB 547 (1970); Local Union No. 42. Laborers
International Union of North America, AFL-CIO (R. B. Cleveland Compa-
ny), 184 NLRB 686 (1970).
" NL.R.B v. Radio d 7Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Colum-
bia Broadcasting System], 364 U.S. 573 (1961).
IU International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
1124
SPRINKLER FITTERS LOCAI. 703
"installation of all piping or tubing . . . including
overhead and underground water mains," which
would seem to cover the work in dispute. Howev-
er, that agreement terminated before Gross Plumb-
ing contracted with Airco to perform the work in
dispute, and the evidence indicates that Gross
Plumbing had no intention of reviewing the agree-
ment or signing another with the Sprinkler Fitters.
Further, there is no evidence that during the time
the agreement was in effect Gross Plumbing had
employed any employees represented by that
Union. " In these circumstances, we conclude that
the expired Sprinkler Fitters agreement is not enti-
tled to be given any weight in making our determi-
nation.
Accordingly, we find that the respective collec-
tive-bargaining agreements favor neither group of
employees.
2. Employer assignment and practice
In the past, the practice of Gross Plumbing has
been to assign the work in dispute to employees
represented by the Laborers. Gross Plumbing is
satisfied with the results of its assignment and pre-
fers these employees to continue doing the work.
Thus, employer preference clearly weighs in favor
of awarding the work to employees represented by
the Laborers.
3. Area practice
The parties stipulated that no area practice exists
for the installation of pipe on the outside of build-
ings.
4. Employee skills and economy and efficiency
of operation
The record indicates that both groups of employ-
ees possess the necessary skills to perform the work
in dispute. However, Gross Plumbing contends
that during the times that pipelaying and joining
work is suspended laborers may be assigned to
assist other crafts of employees, such as carpenters
or bricklayers. Therefore, we find that economy
and efficiency of operation favors assignment of
the disputed work to the employees represented by
the Laborers.
I Thus, it is evident that Gross Plumbing's agreement with the Sprin-
kler Fitters had no application to the former's hiring practices or assign-
ment of work In this regard. Figler testified that he was unaware that
there had been any contractual relationship between these two parties. In
such circumstances, it is apparent that this agreement had been entered
into as a pro forma measure to have application only in the event that
Gross Plumbing decided to use employees represented by the Sprinkler
Fitters
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by La-
borers International Union of North America,
Local No. 91, AFL-CIO, are entitled to perform
the work in dispute. We reach this conclusion rely-
ing on employer assignment and practice and econ-
omy and efficiency of operation. In making this de-
termination, we are awarding the work in question
to employees who are represented by Laborers In-
ternational Union of North America, Local No. 91,
AFL-CIO, but not to that Union or its members.
The present determination is limited to the particu-
lar controversy 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 basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employess of Gross Plumbing and Heating
Company, Inc., who are represented by Laborers
International Union of North America, Local No.
91, AFL-CIO, are entitled to perform the work of
installing dual-purpose waterlines at the Airco
Carbon, Div. of Airco, Inc., Niagara Falls, New
York, facility.
2. Sprinkler Fitters Local 703, United Associ-
ation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act
to force or require Gross Plumbing and Heating
Company, Inc., to assign the disputed work to em-
ployees represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Sprinkler Fitters
Local 703, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO,
shall notify the Regional Director for Region 3, in
writing, whether or not it will refrain from forcing
or requiring Gross Plumbing and Heating Compa-
ny, Inc., by means proscribed by Section 8(b)(4)(D)
of the Act, to assign the disputed work in a manner
inconsistent with the above determination.
MEMBER FANNING;, dissenting:
I would honor the disclaimer made by the Sprin-
kler and Fitters. In my view the effectiveness of
the disclaimer is not vitiated by its timing or the
small amount of work that remained when it was
made. See my dissenting opinion in Laborers' Inter-
national Union of North America, Laborers' District
1125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Council of Western Pennsylvania and Local 910,
AFL-CIO (Brockway Glass Company, Inc.), 226
NLRB 142 (1976).
As one of the competing labor organizations had
renounced claim to the work in dispute, I would
quash the notice of hearing.
1126
