Plumbers and Pipefitters, Local 178

PLUMBERS AND PIPEFITTERS. LOCAL 178 United Association of Journeymen and Apprentices, Plumbers and Pipefitters, Local 178, AFL-CIO and Garney Companies, Inc. and Laborers Local 676, affiliated with Laborers International Union of North America, AFL-CIO. Case 17-CD-245 September 27, 1979 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following the filing of a charge by Garney Companies, Inc., herein called the Employer, alleging that United As- sociation of Journeymen and Apprentices, Plumbers and Pipefitters, Local 178, AFL-CIO, herein called the Plumbers, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by the Plumb- ers rather then to employees represented by Laborers Local 676, affiliated with Laborers International Union of North America, AFL-CIO, herein called the Laborers. Pursuant to notice, a hearing was held before Hear- ing Officer Robert A. Fetsch on June 28, 1979. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. There- after, the Employer, the Laborers. 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 au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Based upon the entire record in this case and the briefs of the parties, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a Missouri corporation with its office and plant located in Kansas City, Missouri, is engaged in business as a utility contractor and that during 1978, a representative period, it purchased materials and supplies valued in excess of $50,000 directly from suppliers located outside the State of Missouri and also performed services valued in excess of $50,000 for customers located outside the State of Missouri. The parties stipulated, and we find, that the Em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We further find that it will effectuate the purposes of the Act to assert juris- diction herein. II. THE L.ABOR ORGANIZATIONS The parties stipulated. and we find, that the Plumb- ers and the Laborers are labor organizations within the meaning of Section 2(5) of the Act. Iii. THE DISPUTE A. Background and Facts o' the Dispute The Employer was awarded a contract with the city of Springfield. Missouri. in August 1978 to per- form work on two projects connected with the mu- nicipal sewage system: the construction of the James River pump station located in Southern Springfield. Missouri, and the installation of a forced main sewer line running from the pump station for about 2-1/2 miles along the James River. The Employer's me- chanical division is responsible for the construction at the pump station, while its utilities division is respon- sible for the installation of the sewer line. The Em- ployer began work in early 1979 on the building con- struction site of the pump station, where it uses employees represented by the Plumbers to perform plumbing work, including the installation of the grav- ity sewer lines coming into the building and of the forced main sewer lines going out of the building. The plumbers perform work on these sewer lines, how- ever, only as far as either the property line or the first connection. There is no dispute as to the Employer's assignment of plumbing work at the pump station to employees represented by the Plumbers. The dispute in this case involves the installation of the forced main sewer line away from the pump sta- tion. On March 2, 1979, the Employer, in writing, assigned the work of unloading and installing the 24- inch ductile cast iron pipe for the forced main sewer line to employees represented by the Laborers and also signed a one-job contract with the Laborers cov- ering the forced main part of James River pump sta- tion project only. Although employees represented by the Laborers unloaded some pipe for the forced main in February and March 1979, the Employer did not begin installation of the forced main until April 1979. On April 17. 1979, Business Manager Jack Bow- man of the Plumbers told Charles Sapp, the Employ- er's job superintendent for the James River forced main project, that the Plumbers was discussing with the Laborers which Union would do the work of in- 245 NLRB No. 63 463 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stalling the pipe for the forced main. As a result of discussions between Bowman and Business Manager Bill Seaton of the Laborers, Bowman submitted the dispute for consideration by an International vice president of each respective Union pursuant to the provisions of a 1941 agreement between the two In- ternational Unions concerning, inter alia, the division of work on sewers and water mains. The Interna- tional vice presidents met on May 10, 1979, and awarded the work to the Plumbers. On May 15, 1979. Bowman visited the jobsite and told Sapp the Plumb- ers was claiming the disputed work of laying the pipe and making the joints on this site. Sapp responded that he would not change the present assignment of the work to the Laborers. On May 16, 17, and 18. 1979, the Plumbers picketed the forced main jobsite. The Plumbers then submitted the dispute for consid- eration by the Impartial Jurisdictional Disputes Board for the construction industry although the Em- ployer was notified that the dispute would be consid- ered on June 14, 1979, by the Impartial Jurisdictional Disputes Board, it declined to become a party to the proceedings. On June 15, 1979, the Impartial Juris- dictional Disputes Board awarded the disputed work to the Plumbers. The Employer presently uses a crew of three labor- ers and one operating engineer to install the forced main sewer pipe. The operating engineer operates heavy equipment, two laborers work in the ditch, and one laborer works on top of the ditch. The operating engineer unloads the pipe at the jobsite using a high- loader, excavates the ditch with a backhoe, dumps crushed rock into the ditch with a scoop, lowers the pipe into the ditch suspended by a cable from his equipment, and fills in the ditch after the pipe in laid. The two laborers in the ditch level out the bottom of the ditch with hand tools; stand at either end of the pipe to guide it into place by hand when it is being lowered; make the joint between two pieces of pipe by placing a gasket into the belied end of one pipe, lubricating or "soaping" the gasket and both ends of the pipe, and guiding the two pieces of pipe together; unhook the cable around the pipe; and pack the crushed rock into place around the pipe using hand tools. The labor outside the ditch assists the operating engineer in unloading the pipe, in moving the pipe to the ditch, and in dumping crushed rock into the ditch; attaches the cable to the pipe in preparation for lowering it; guides the pipe into the ditch by hand; and performs any necessary drilling and blasting of rock. B. The Work in Dispute The work in dispute herein is the installation of 24- inch ductile cast iron pipe for the forced main sewer line running from the James River pump station along the James River located in Southern Spring- field, Missouri. C. Contentions of the Parties The Plumbers contends that the work should be assigned to employees it represents, arguing that the 1941 agreement between the two Unions, the award of the International vice presidents of the two Unions, and the award of the Impartial Jurisdictional Disputes Board favor such a result. The Laborers contends that the work should be awarded to employees represented by it because of the following factors: the collective-bargaining agree- ment, the Employer's assignment and preference, relative skills, efficiency and economy of operation, employer, area, and industry practice, and safety of operation. The Laborers asserts that the alleged agreement between the Unions is not dispositive of the issues in this case and that the unilateral submis- sion of the dispute to the Impartial Jurisdictional Dis- putes Board is not binding on the parties in this case. The Employer contends that the collective-bargain- ing agreement, the Employer's assignment and prefer- ence, efficiency and economy of operation, employer, area, and industry practice, prevailing wage specifica- tions under the Federal Davis-Bacon Act, and the interests of labor stability in the heavy construction industry all favor assignment of the work to employ- ees represented by the Laborers. The Employer as- serts that the purported 1941 agreement and the award of the Impartial Jurisdictional Disputes Board are entitled to little or no weight in the determination of this dispute. D. Applicability of the Statute Before the Board may proceed to the determina- tion of a 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) of the Act has been violated and that the parties have no agreed-upon method for the voluntary adjustment of the dispute. As to the statutory requirement of reasonable cause to believe that Section 8(b)(4)(D) has been violated, the parties stipulated that on May 14, 1979, the Plumbers began picketing at the Employer's James River forced main sewer line project, with an object of forcing or requiring the Employer to reassign the work of installing the 24-inch ductile cast iron forced main sewer line at the Employer's James River proj- ect from employees represented by the Laborers to individuals represented by the Plumbers. On May 15, 1979, and before the commencement of the picketing, the Plumbers had demanded that the Employer as- 464 PLUMBERS AND PIPEFITTERS, L.O(AI. 178 sign the work in question to employees represented by the Plumbers rather than to employees represented by the Laborers. Based on the foregoing, and on the record as a whole, we find that an object of the Plumbers' picketing was to force or require the as- signment of the disputed work to employees repre- sented by it. Accordingly, we find that reasonable cause exists to believe that Section 8(b)(4)(D) of the Act has been violated. As to whether an agreed-upon method exists for the voluntary adjustment of the dispute, the Plumbers contends that the 1941 agreement between the two Unions provides such a method, which is the submis- sion of the dispute to the general presidents of both International Unions for adjustment. The Laborers, however, asserts that the 1941 agreement has no con- tinuing force or effect and, moreover, does not pro- vide for submission of disputes to the Impartial Juris- dictional Disputes Board. While there was evidence presented to indicate that after reviewing the 1941 agreement the Laborers acquiesced in the submission of the dispute to the International vice presidents of both Unions, no evidence was presented to indicate that the Laborers consented to or participated in the proceedings before the Impartial Jursidictional Dis- putes Board, which is not mentioned in the 1941 agreement as a method to be used in resolving juris- dictional disputes. In any event, the evidence is clear that the Employer was not a party to the 1941 agree- ment and that there is no provision in the contract between the Employer and the Laborers for the sub- mission of jurisdictional disputes to the Impartial Ju- risdictional Disputes Board. Since the Employer, a necessary party, is not bound to submit the dispute to either the International Unions or to the Impartial Jurisdictional Disputes Board, we find that no agreed-upon method exists for the voluntary adjust- ment of the dispute to which all parties are bound. Accordingly, we find the dispute is properly before the Board for determination under Section 10(k) of the Act. 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. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board as the collective-bar- gaining representative for a unit of the Employer's employees, so that the claims of the Laborers and the Plumbers are unaffected by this factor. The Employer and the laborers are parties to a one-job contract covering the torced main part of the James River pump station project only, in which the Employer agrees to be bound to the association con- tract between the Associated General Contractors of Missouri and the Laborers, known as the Heavy and Highway agreement. The Heavy and Highway agree- ment states that it covers: "all private and public con- struction, with the exception of building construction . . [including] all work performed in the construction of ... utilities, sewer lines, sewage disposal plants, purifying plants, water lines, water pollution plants, pumping stations .... " In the agreement, "work" is defined to include "laying. jointing, and pointing of all sewer tile, handling, distributing and laying water lines and making of all joints ... ." Although there have apparently been some nego- tiations between the Plumbers and representatives of the Employer's mechanical division concerning a col- lective-bargaining agreement, the record is clear that at the time of the hearing in this case no contract had been signed. Further, it is undisputed that these nego- tiations concerned only plumbing work being per- formed at the James River pump station itself and not work on the forced main sewer line project. We find that the collective-bargaining agreement between the Laborers and the Employer supports an award of the work to the employees represented by the Laborers. 2. Employer's assignment and preference On March 2, 1979. the Employer assigned the dis- puted work to employees represented by the Labor- ers. The record indicates that the Employer maintains a preference for this assignment. These factors sup- port an award of the work to the employees repre- sented by the lIaborers. 3. Relative skills The record establishes that both groups of employ- ees can perform the disputed work. There is no evi- dence that either group possesses significantly supe- rior skills related to the performance of this work. Therefore, this factor favors neither group of employ- ees. 4. Economy and efficiency of operations The record establishes that laborers presently per- form the disputed work in a competent manner to the satisfaction of the Employer. There is no contention by the Plumbers that employment of plumbers to do the disputed work would result in greater efficienc or in an economic benefit t!.r the Employer. Rather, the 46S I)l:((ISIONS OF NAI()ONAL I.ABOR RELATIONS BOARD record revealk that if the Employer used plumbers to do the disputed work the result would be a consider- athl more inefficient and uneconomical operation, hecausc it would have to use four employees instead olf its current three-man crew to install the pipe. It is undisputed that the Plumbers has only claimed that part of the work now being performed by laborers which inxolvles lowering the pipe into the ditch and making the joint. The Plumbers has not claimed the other work now performed by laborers, such as un- loading pipe. drilling and blasting rock, and grading the bed of the ditch. Plumbers Business Manager Bowma n testified that he had requested the Employer to assign two plumbers to the job. one to work outside the ditch attaching the cable to the pipe and guiding the pipe into the ditch and the other to work in the ditch making the joints. The Employer witnesses tes- tified that it ould still be necessary to employ two laborers on the job. One would work in the ditch doing the grading and guiding the pipe into place. l'he other would work outside the ditch unloading pipe. assisting the operating engineer. and performing any drilling and blasting. Furthermore, the record re- veals that the two plumbers would have relatively long intervals between periods when they were actu- ally performing the work of guiding the pipe and making the joint, when they would have to wait idly while the laborers prepared the ditch. Inasmuch as the evidence indicates that it would be more efficient and economical to assign the work to employees represented by the I.aborers, we find that these factors favor such an assignment. 5. Employer, area, and industry practice The record establishes that since 1970 the Em- ployer has performed 13 to 14 jobs in the States of Missouri. Kansas Arkansas, and Texas. on which the work of installing ductile cast iron sewer lines was assigned to and performed by laborers represented by various different local unions affiliated with Laborers International Union of North America. AFL-CIO. Except for the present job, only one of these jobs was located within the geographical jurisdiction of the Plumbers, and that was in Republic. Missouri, in 1970. Employees represented by the Laborers were used to install a 12-inch ductile cast iron forced main on that job. It is undisputed that the Employer has an established practice of using only laborers to install pipe. regardless of whether the pipe is metallic or not, on all of its sewer line projects, which number over 100 per year. Further, it is undisputed that the Em- ployer has never employed plumbers to perform the installation of any pipe on any of its sewer line proj- ects. The record also establishes that other emploNers within the geographical jurisdiction of the Plumbers have consistently used only employees represented by the Laborers to install sewer lines of all types. includ- ing ductile cast iron pipe. The uncontradicted testi- mony indicates that employees represented by the La- borers are presently installing ductile cast iron pipe on four sewer line projects within the Plumbers' juris- diction. The Plumbers presented evidence of only one job on which its members installed ductile cast iron sewer pipe and that job involved only work on a building construction site. In addition, the record contains eight letters, sent by various contractors, which assigned the work in dispute to the Laborers. Although two of the letters of assignment were written after the Plumbers claimed the work involved in this case, all of the letters re- ferred to jobs occurring within the geographical juris- diction of the Plumbers and the Laborers. Thus, employer, area, and industry practice is a factor which strongly supports and award of the dis- puted work to employees represented by the Labor- ers. 6. Awards by the International vice presidents and the Impartial Jurisdictional Disputes Board Although, as indicated in section D above, we do not consider these awards binding on the Employer. we do consider the awards to be factors in determin- ing the proper assignment of the work in dispute. In view of all the circumstances in this case, however, we are of the opinion that these awards should not be given controlling weight. Thus, the record does not indicate what evidence, if any. was presented in the proceedings which formed the basis for these awards; there is no written record of the award made by the International vice presidents; and the award of the Impartial Jurisdiction Disputes Board consists simply of a letter setting forth the ultimate decision, which does not explain the reasoning followed or the sup- porting data, so that we are unable to evaluate the award according to our own standards to determine the degree of deference to which it is entitled.' This factor, therefore, favors neither group of employees. 7. The 1941 agreement The Plumbers relies heavily on the 1941 agreement between the two Unions to support its claim to the disputed work. The agreement, by its own terms, however, does not resolve the issue in this case as to the assignment of the work of installing metallic I See International Union o Operating Engineers. Local Union No 158, .4FI. (IO(E C Ernst. In , 172 NLRB 1667, 1670 ( 1978). PLtUMBERS AND PIPEFIFIERS. LOCAI. 1? sewer pipe, which is mentioned nowhere in the docu- ment. Thus, the agreement states that it concerns: "all work on subways, tunnels. highway, viaducts. streets and roadways in connection with sewers and water mains." It divides the work between the two Unions as follows: All the leveling, caulking and making of all joints by any mode or method on water mains, gas. gasoline and transportation lines is the work of [the plumbers] .... All of the laying of clay, terra cotta, ironstone vitrified concrete or non-metallic pipe and the making of joints for main and side sewers and drainage only is the work of the laborers. Furthermore, it appears that the two Unions have had a longstanding controversy over the division of this particular work which has never been effectively resolved by their interpretation of this agreement.2 Fi- nally, no evidence was presented to indicate that this agreement remains in effect without modification. Therefore, we find that this factor favors neither group of employees. Conclusion Upon the record as a whole, and after consider- ation of all relevant factors involved, we conclude that the Employer's employees who are represented by the Laborers are entitled to perform the work in dispute. We reach this conclusion relying on the col- 2See, e.g.. Plumbers and Steamfitters Local Union No. 157 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL CIO (Curry Construction Company), 191 NLRB 302 (1971): Local No. 7. Albany, New York and Vicin- ity, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry (James H. Maloy, Inc.), 150 NLRB 461. 466 (1964); Local 69, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL CIO (Belle::a Company, Inc.), 149 NLRB 599. 602 (1964). lective-bargaining agreement. the Lmpplocr', ashign- ment and preference. the econlom and cticicnc ot operations, and the emplomer. area, and industr\ practice, all of which favor an aard of the disputed work to employees represented bh the lb.horcrs In making this determination. we are assigning the \ ork to employee represented b\ the l.aborers but nlot to that Ilnion or its members. The determination in thil case is limited to the particular controx ers x lhich gave rise to this proceeding. DETERMINA I ION OF I)IS1 l'l Pursuant to Section O0(k) of the National Liabor Relations Act, as amended. and upon the basis of the foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of Garney Companies. Inc.. who are represented by Laborers Local 676, affiliated with l.a- borers International Union of North America. AFL CIO, are entitled to perform the installation of 24- inch ductile cast iron pipe for the forced main sewer line running from the James River pump station along the James River located in Southern Spring- field, Missouri. 2. United Association of Journeymen and Appren- tices, Plumbers and Pipefitters, Local 178, AFL ('10. is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Garne5 Companies, Inc., to assign the disputed work to em- ployees represented by that labor organization. 3. Within 10 days from the day of this Decision and Determination of Dispute. United Association of Journeymen and Apprentices, Plumbers and Pipefil- ters, Local 178. AFL.CIO, shall notify the Regional Director for Region 17, in writing, whether or not it will refrain from forcing or requiring Garney Compa- nies, Inc., by means proscribed by Section 8(b4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination.