L & K Contracting Co., Inc.

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 157, Plumbers and Steamfitters Union, affili- ated with the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO and L & K Contracting Company, Incorporated' and Local 204, Laborers' Interna- tional Union of North America. Case 25-CD- 194 March 10, 1980 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by L & K Contracting Company, Incorporated, herein called the Employer, alleging that Local 157, Plumbers and Steamfitters Union, affiliated with the 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 Plumbers, violated Section 8(b)(4)(D) of the Act by engaging in cer- tain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represent- ed by Local 204, Laborers' International Union of North America, herein called Laborers. Pursuant to notice, a hearing was held before Hearing Officer Frederick G. Winkler on Decem- ber 11, 1979. 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. Thereafter, briefs were filed by the Employer and the Plumbers. The Plumbers also filed a motion to quash the notice of hearing. 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,2 the Board makes the following findings: ' The names of the Employer and the Plumbers Union appear as amended at the hearing. 2 Employer's motion to strike from the Plumbers brief all references to the state court proceeding, Case SC-79-1822, in the Vigo County Superi- or Court is hereby denied. In our judgment, that these references concern a state court proceeding involving different legal issues goes to their weight and not their admissibility. At the hearing, the Plumbers motion to strike certain testimony of wit- ness Thomas Dashiell was referred by the Hearing Officer to the Board. That motion is hereby denied. 248 NLRB No. 32 1. THE BUSINESS OF THE EMPLOYER L & K Contracting Company, Incorporated, is a utility construction contractor engaged in the in- stallation of underground water and sewer lines throughout southern and western Indiana, as well as portions of Illinois. During the past year, the Employer has rendered services and supplied mate- rials in excess of $50,000. The parties stipulated, and we find, that the Employer 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 LABOR ORGANIZATIONS INVOLVED It is uncontested, and we find, that the labor or- ganizations involved are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer, a construction contractor member of the Indiana Constructors, Inc. (ICI), is signatory to a collective-bargaining agreement with various locals of the Laborers' International Union of North America, including Local 204. Effective from April 1, 1979, through January 31, 1982, the agreement covers the disputed work, the installa- tion of waterlines. Since 1965 the Employer has consistently as- signed work, similar to that in dispute here, to members of Laborers' Local 204. As far back as 1969, the Plumbers claimed the work in dispute. In addition to Board decisions involving Plumbers Local 157 and Laborers' Local 204,3 there have also been about 15 disputes between these Unions during the past 10 to 12 years, involving the assign- ment of work similar to that in issue here. Al- though efforts have been made by both the Plumb- ers and Laborers to reach an agreement to avoid these disputes, a binding agreement has not been at- tained. During early October 1979, the Employer was installling a water main for the Terre Haute Water Works. On October 2, 1979, the Plumbers had a meeting with representatives of the Water Works and the Hoosier Energy Division.4 The Plumbers requested that the Employer be removed from its contract to relocate a water main on Hoosier Energy Division property unless the Employer used members of the Plumbers. 3 186 NLRB 1103 (1970); 190 NLRB 346 (1977). The Division owns land on which one of the Employer's projects is taking place and also owns an unrelated electric plant construction pro- ject taking place on land adjacent to the property on which the Employ. er is working. LOCAL 157, PLUMBERS 251 On October 16, 1979, the plumbers began to picket the water works job along Old Highway 41. The lone picketer reappeared at the jobsite on sev- eral subsequent days in October. The picketer's sign read: NOTICE TO THE PUBLIC L&K CONTRACTING CO. Threatens the Wage Standards Established in the Area by PLUMBERS AND FITTERS LOCAL NO. 157 This picketing does not have representation, organization, bargaining, or work jurisdiction as an object. Employees of this and other em- ployers are not solicited to cease service in any manner. When Employer's vice president, Dashiell, attempt- ed to cross the picket line, he was asked if he had a lifetime job and that, if he did not and crossed the picket line, the picket would see that he was black- balled in all constructionunions. Upon crossing the picket line, Dashiell was given a handbill by the picket. According to the testimony of the Plumbers business manager, Osborne, the distribution of the handbill was discontinued after several days be- cause he was advised that it might be misconstrued as an appeal to employees of any secondary em- ployer. The Employer's secretary-treasurer and general superintendent, Lindeman, spoke to a picketer on the Highway 41 project on either October 30 or 31, 1979. The picketer told Lindeman that he was "out there because it was their type of work." 5 On November 6, 1979, at a Hoosier Energy Di- vision jobsite where the Employer was laying water mains which were not part of the construc- tion project, an individual identifying himself as a "pipefitter" denied use of a road to employees of the Employer. When asked if he was a picketer, he said "no" but that a picketer was supposed to be coming. A picket was established at the jobsite on November 8, 1979. B. The Work in Dispute The work in dispute is the installation of water- lines. C. The Contentions of the Parties The Plumbers contends that there is no jurisdic- tional dispute and that the notice of hearing should be quashed. The Plumbers filed a disclaimer stating 6 The Plumbers contends that any statements by any picketers were unauthorized and directly violative of their instructions from the Union that it does not seek an assignment of the work. The Plumbers further asserts that its picketing was solely intended to inform the public that the Em- ployer was paying substandard wages. The Employer contends that the Plumbers has engaged in unlawful conduct designed to force the Employer to assign the disputed work to plumbers rather than to laborers. The Employer and the La- borers claim that the Employer had traditionally assigned the disputed work to laborers. In addition, the Employer asserts that the instant dispute is part of a broader jurisdictional controversy between the Plumbers and the Laborers and that the Board's award here should extend to similar work by the Employer throughout the Plumbers jurisdiction. D. Applicability of the Statute The charge alleges that the Plumbers violated Section 8(b)(4)(D) of the Act. As outlined above, on October 2, 1979, the Plumbers met with repre- sentatives of the Tenre Haute Water Works and the Hoosier Energy Division. At that meeting, the Plumbers sought to have the Employer removed from its contracts with the Water Works unless it used plumbers to perform the work. This is evi- denced by a letter, dated October 8, 1979, from the Water Works manager, J. E. Sauer, to the Plumb- ers secretary-treasuer, Jimmie L. Strange. At the hearing, the Plumbers sole witness, Business Man- ager Grover Osborn, stated that he believed he had read the letter. Osborn did not deny that this meet- ing took place, nor did he state that the letter is in- accurate in any way. After this meeting, the Plumbers picketed the Employer's water works project along Old High- way 41 on several days in October. On November 6, 1979, a plumber attempted to deny employees of the Employer access to the Hoosier Energy Divi- sion project. The Plumbers placed a picket at that jobsite on November 8, 1979. Based on the forego- ing and the entire record, we conclude that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that the dispute is properly before us for determination. E. Merits of the Dispute 1. Board certification and collective-bargaining agreements Neither of the labor organizations has been certi- fied as collective-bargaining representative of the employees involved in the dispute. As stated above, the Laborers has a contractual agreement with the Employer which covers the work in dispute here and which contemplates that the employees represented by Laborers are to per- LOCAL 157, PLUMERS 251 _ _ _ 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form that work.6 Accordingly, we find that this factor favors an award of the work in dispute to employees represented by the Laborers. 2. Company and area practice Since 1965 the Employer has consistently as- signed work similar to that in dispute here to mem- bers of Laborers' Local 204. It also appears that all ICI member-contractors signatory to the ICI-nego- tiated Laborers collective-bargaining agreement use laborers to perform the disputed work. We con- clude that this factor favors an award of the disput- ed work to employees represented by the Laborers. 3. Skills and efficiency and economy The laborers possess the necessary skills to per- form the disputed work. While plumbers also have those skills, the Employer's former president, Wil- liam Lindeman, testified, without contradiction, that use of plumbers along with laborers would re- quire adding two or more plumbers to the payroll on a particular work crew without decreasing the number of laborers used for the job.7 In addition when the laborers perform the work alone, there is a more efficient operation because they have virtu- ally no idle time. We conclude, therefore, that these factors favor an award of the work in dispute to the Employer's employees represented by the Laborers. Conclusions Based on the entire record and after full consid- eration of all relevant factors, we shall assign the work in dispute to employees represented by La- borers. This assignment is consistent with the col- lective-bargaining agreement between the Laborers ° Art. I ("Coverage") of that agreement provides in pertinent part: (c) UTILITY CONSTRUCTION shall include all labor work (in- cluding skilled and semi-skilled) for the construction of an installa- tion of utility lines, metallic and non-metallic (clay, terra-cotta, iron- stone, vitrified, concrete, cast iron, fibre-glass, orangeburge, transite, plastic, etc.), pipe for storm and sanitary sewers and drainage; water lines; water treatment plants; sewage treatment plants; pump stations; lift stations; cables; ducts; air-lines; gas lines; steam lines; conduit lines; making of joints; sheeting; trenching; manhole erectors; digging and backfilling of all ditches; cutting of streets and surfaces and re- finishing of same; in free air or tunnel projects. The unloading and distribution of all pipe and material used in the performance of work as set forth above The connections of utilities to the point of first connection outside the building foundation not to exceed 3 feet from the foundation. The laying of pipe and making of all connections and/or joints on any and all types of utilities . ... [Emphasis supplied.] 7 This was the Employer's practice between 1955 and 1962, the last time plumbers performed the work. and the Employer, employer industry and area practice, requisite skills, and the efficiency and economy of operations. In addition, the Employer has been satisfied with the performance of its em- ployees who are represented by the Laborers. In making this determination, we are assigning the work to employees who are represented by Local 204, Laborers' International Union of North Amer- ica, but not to that Union or its members.8 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. Employees of L & K Contracting Company, Incorporated, Terre Haute, Indiana, who are repre- sented by Local 204, Laborers' International Union of North America, are entitled to perform the in- stallation of waterlines at the project at the Hoosier Energy Division property in Merom, Indiana, and the project on old U.S. Highway No. 41, north of Terre Haute, Indiana, in the vicinity of C. F. In- dustries. 2. Local 157, Plumbers and Steamfitters Union, affiliated with the United Association of Journey- men and Apprentices of the Plumbing and Pipefit- ting 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 L & K Contracting Company, Incorporated, to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 157, Plumbers and Steamfitters Union, 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 Re- gional Director for Region 25, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determina- tion. 8 The Employer urges an award that extends throughout the territorial jurisdiction of Plumbers Local 157, and covers both current and future Employer projects. We are not persuaded, however, that the record sup- ports an award of this scope, and we shall limit our award to the jobsites where the instant dispute arose.