Plumbers & Fitters Local 761, Etc.

PLUMBERS & FITTERS LOCAL 761, ETC. 133 As indicated above, the alleged unlawful statements of Walker to the employees, even if they were actually made, despite a finding here to the contrary, do not warrant a remedial order in view of their isolated character and because they would not reasonably be calculated to have a significant effect on the employees' organizational rights. Middletown Manufacturing Company, Inc., 141 NLRB 234. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Nevada Tank and Casing is a Nevada corporation engaged in commerce and in a business affecting commerce within the meaning of the Act. 2. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths & Forgers, Local #10, AFL-CIO, is a labor organization within the meaning of the Act. 3. Respondent Nevada Tank and Casing has not engaged in unfair labor practices as alleged in the complaint. RECOMMENDATION Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint be dismissed in its entirety Plumbers & Fitters Local 761 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fit- ting Industry of the United States and Canada, AFL-CIO and Matt J. Zaich Construction Co. Plumbers & Fitters Local 761 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fit- ting Industry of the United States and Canada, AFL-CIO and Zarubica Company International Union of Operating Engineers, Local Union No. 12, AFL-CIO and Matt J. Zaich Construction Co. and Zarubica Company. Cases Nos. f21-CD-134-1, 21-CD-134-P2, and 21-CD- 135. August 21, 1963 DECISION, DETERMINATION OF DISPUTES, AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10(k) of the National Labor Relations Act following the filing of charges under Section 8(b) (4) (D) of the Act. A hearing was held before Hearing Officer Ben Grodsky on January 8, 9, 11, 15, 17, and 21, 1963. All parties appeared at the hearing I and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. 1 Associated General Contractors of America, Southern California Chapter (hereinafter referred to as the AGC), and the Southern California District Council of Laborers and its Affiliated Local Unions (hereinafter referred to as the Laborers), intervened Inter- national Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No 92 (herein the Boilermakers), after having intervened, later withdrew on the ground that it would be bound by any subsequent Joint Board determination 144 NLRB No. 12. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Briefs filed by the Employers, the Laborers, and the Associated Gen- eral Contractors have been duly considered. Upon the entire record in this case, the Board' makes the following findings : 3 1. Matt J. Zaich Construction Co. (hereinafter referred to as Zaich Construction) and Zarubica Company (hereinafter referred to as Zarubica) are each separately engaged as general engineering con- tractors, specializing in underground work in heavy construction, in- cluding pipe, tunnels, and bridges. During the calendar year 1962, each of the Employers received goods and materials valued in excess of $50,000 directly from outside the State of California or from sup- pliers in California who themselves received such materials directly from outside the State of California. As stipulated by the parties, we find that the Employers are engaged in commerce and in an industry affecting commerce, within the meaning of the Act. 2. The parties further stipulated, and we find, that Plumbers R Fitters Local 761 of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (hereinafter referred to as the Plum- bers), International Union of Operating Engineers, Local Union No. 12, AFL-CIO (hereinafter referred to as the Operating Engineers), and Southern California District Council of Laborers and its Affili- ated Local Unions are labor organizations within the meaning of Sec- tion 2(5) of the Act. We also find that the International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 92 is a labor organization within the meaning of the Act. 3. The dispute : Work at Issue Since on or about July 27, 1962, Zaich Construction and Zarubica have been engaged in the construction and installation of a waterline conduit from the Glendale area to Oxnard and Simi Valley, Cali- fornia, for the Calleguas Municipal Water District. Zaich Construc- tion has a contract for the construction of unit 2 of the project and 2Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Leedom and Fanning]. 3 On May 3, 1963, several months after the close of the hearing, the Respondent Unions filed a motion to quash the notice of hearing , on the ground that they had offered to enter into a settlement agreement with the Regional Director disposing of the alleged violations; had notified the Employers that they withdrew any claim to the work tasks in question ; and were willing to enter into a settlement agreement satisfactory to the Board Thereafter, the Employers, the Laborers, and the AGC each filed an opposition to the motion to quash Having duly considered the matter, and particularly in view of the provisions of Sec- tion 10(k) directing the Board to hear and determine the dispute unless resolved by all the parties, the Board is of the opinion that in the circumstances of this case it would not effectuate the policies of the Act to grant the Respondents' motion, and it is accord- ingly denied. PLUMBERS & FITTERS LOCAL 761, ETC . 135 Zarubica for the construction of unit 3. The work at issue involves the pipelaying operation of the Employers under these contracts. The pipe to be laid is steel core concrete pipe 48 inches in diameter and comes in 40-foot lengths. As presently performed by both Em- ployers, a laborer first slings a cable around the center of the pipe which is on the bank near the excavation. A soap mixture is then put on the narrow end of the pipe, called the spigot, and a rubber gasket is placed on it. The pipe is then hoisted by power equipment, manned by an operating engineer, who receives signals from an oiler, also an operating engineer (both members of the Operating Engineers), who is in turn assisted by a laborer (the sling man) in making sure that the pipe goes into the excavation without swinging wildly. One of the laborers in the ditch waiting for the pipe has already dug a hole where the cable will ultimately rest so that it can be removed when the pipe has been put in place. The pipe is then lowered into the excava- tion. One laborer stands inside the established pipe to receive the spigot of the new pipe. Another, who is in charge of the operation and is called the pipelayer, receives the new pipe at its wider or "bell" end. When the pipe has been lowered and is properly aligned, the pipelayer pushes the new pipe into the established pipe, thus making the initial joint. The laborer inside the established pipe, designated the pipelayer's helper, places some metal blocks called "spacers" be- tween the bell of the old pipe and the spigot of the new pipe so that the pipe will fit properly. When the joint has been completed, it is neces- sary to grout or cement the pipe both inside and out. On the outside, a laborer places a steel banded cloth ring, called a "diaper," around the joint. A laborer on top of the excavation prepares a thin grout, or cement and sand mixture, which is then poured into the diaper, making a cement joint on the outside of the pipe. This joint is then covered with sand and the excavation is back-filled. The inside grouting will be done later by a laborer known as a "pointer," who is at work perhaps a thousand feet back in the pipe. The pointer, in two separate opera- tions, grouts the inside joint where the spacers are, so that the pipe has a smooth concrete finish from beginning to end. In addition, approximately 4 percent of the pipe joints on Zarubica's job and approximately 20 percent of the pipe joints of Zaich Con- struction's job must be completed by welding. In both instances, the welding is done on the inside of the pipe and precedes the inside grouting operation. At the time of the picketing discussed below, both Zaich Con- struction and Zarubica employed laborers to do all the work, except for the crane work, which was done by operating engineers, and the welding, which was done by boilermakers. A question exists as to what portion of the work is actually sought by the Plumbers. In this regard, the Plumbers' demands varied at 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times from the work awarded it by the National Joint Board for the Settlement of Jurisdictional Disputes. However, a composite of the testimony indicates, in our view, that the Plumbers seeks all the work assigned it by the National Joint Board,4 which work is presently being done by laborers; and seeks in addition the welding of joints presently being done by boilermakers. Evidence of Conduct Violative of Section 8 (b) (4) (D) As stated above, the Employers had commenced on or about July 27, 1962, to install separate units of a waterline conduit for the Calleguas Municipal Water District. Pursuant to a contract between the Under- ground Engineering Contractors Association (hereinafter referred to as the UECA), of which the Employers were members, and the La- borers, Zaich Construction and Zarubica had assigned the work in dispute herein (other than the welding) to laborers. Early in August 1962, the Plumbers unsuccessfully sought to have Zaich Construction sign a contract with it. Thereafter, on or about August 21, the Plumbers picketed at the jobsite of both Zaich Con- struction and Zarubica, carrying signs which read that the Employers were not paying Plumbers' wages. At that time, the Employers re- fused to sign a contract with the Plumbers. No work stoppages ensued from the picketing. On August 27, the Plumbers submitted the jurisdictional dispute over this work (other than the welding) to the National Joint Board for the Settlement of Jurisdictional Disputes in the Building and Con- struction Industry. The Joint Board thereupon notified the parties (other than the Boilermakers) that it would hold a hearing on the dis- pute. On August 30, the UECA notified the Joint Board, on behalf of Zaich Construction and Zarubica, that they were not bound by any determination of that Board, and that the National Labor Relations Board was the proper forum for the resolution of the dispute between the parties. The Laborers also refused to make any submission to the Joint Board as requested. Despite this alleged lack of jurisdiction over the Employers, the Joint Board determined on September 28 that the work in dispute should be assigned to the Plumbers, and noti- fied all interested parties of its decision. On November 29, the Plumbers again picketed at the jobsite of Zaich Construction and Zarubica, its placards at each site now reading, "Not conforming with Decision of N.J.B." As a result, the operating engineers employed by the two Employers, as instructed by Operating Engineers, refused to cross the picket lines, and the jobs were shut down. 4 This encompassed the "installation, including rigging, handling, lowering into ditch, aligning, leveling, and making of joints, of 48-Inch steel core concrete pipe." PLUMBERS & FITTERS LOCAL 761, ETC. 137 Contention of the Parties The Plumbers contends that the notice of hearing should be quashed. It argues that, as to all of the work in dispute except the welding, it was rightfully seeking to have the Employers assign to its members work previously awarded it by the National Joint Board. In addi- tion, the Plumbers rests its claim to this work on an agreement between the International Plumbers and the International Laborers setting forth the jurisdiction of the two unions, entered into on January 23, 1941. As to the welding, the Plumbers contends that it is entitled to this work by virtue of an agreement between the International Boiler- makers and the International Plumbers, dated August 1941. Finally, the Plumbers insists that the waterline being installed is a distribu- tion line as opposed to a transmission line, and that plumbers are customarily employed to do the work tasks in question on distribution lines. The Employers contend that they have not agreed upon the Joint Board as a method for the voluntary adjustment of the disputes, and are in no way bound by the decisions of the Joint Board. They further contend that they have assigned the work to laborers on the basis of a contract with the Laborers, the skills and work involved, their own and industry practice, and the efficient operation of the work. The Employers base the assignment of welding to boilermakers on industry practice. The Laborers contends that no jurisdictional dispute within the meaning of Section 10 (k) exists because one of the two contending groups of employees-the plumbers represented by the Plumbers Union-are not in fact employees of either Employer, and that con- sequently there does not exist a dispute between two or more employee groups claiming the right to perform the work, within the meaning of the CBS case.' Alternatively, the Laborers argues that it is en- titled to the work on the basis of the same factors relied upon by the Employers. Applicability of the Statute Before the Board proceeds with a determination of 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. The record furnishes reasonable cause for believing that the Plumb- ers picketed the jobsites in part for the purpose of forcing Zaich Con- struction and, Zarubica to assign the work in dispute to employees represented by the Plumbers instead of to employees represented by the Laborers and Boilermakers. The Plumbers thereby succeeded in 6 N.L R B. v. Radio and Television Broadcast Engineers Union, Local 1212, IBEW (Columbia Broadcasting System), 364 U S 573 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD producing a work stoppage by the employee members of the Operating Engineers. The Plumbers contends, however, that its picketing followed an award to it of the work in disputes by the Joint Board pursuant to an agreed-upon method for settlement of jurisdictional disputes by the parties. It supports this contention by stating that both Zaich Construction and, Zarubica were members of the AGC at the time the dispute arose, and that the AGC contract with the Laborers provides for the submission of jurisdictional disputes to the National Joint Board? In essence, the Plumbers asserts that Zaich Construction and Zaich Company, another corporation owned by Matt J. Zaich and admittedly a member of the AGC at the time of the dispute, are a single entity, and that Zaich Construction was thus bound to the Joint Board. The evidence discloses that Matt J. Zaich operates both corporations under separate contractor's licenses. Both corporations have the same presi- dent and vice president but a different secretary, and Zaich is the sole stockholder in each. Generally, the Zaich Company does storm drain work, also known as large box conduit or channel work, whereas Zaich Construction does pipeline work which for the most part involves sewer construction. The crew works interchangeably on jobs for the two corporations and is under the same general supervision on either job. However, it is clear that the two corporations maintain separate books, bank accounts, and payrolls, make their own unem- ployment compensation and other deductions, and carry their own liability insurance and workmen's compensation. Although Zaich Construction rents whatever equipment it needs from Zaich Company, the pro-rata cost is paid by Zaich Construction. Zaich Company became a corporation in the early 1950's whereas Zaich Construction did not come into existence until 1958. Matt Zaich testified that his reasons for forming Zaich Construction included : his desire to create another corporation in which he hoped, as a reward for loyalty, to make the vice president of Zaich Company an active stockholder; his judgment that Zaich Construction would be in a good competitive position by being able to rent equipment from Zaich Company; and the advice of his tax adviser. Zaich also testified that although Zaich Company was a member of AGC at the time he started Zaich Construction, he made the latter a member in the UECA in order to be associated with some of his colleagues in the heavy con- struction industry. 6 This phase of the argument is directed toward all the work in dispute except the welding. 7It is undisputed that the essential difference between the UECA and the AGC con- tracts with the Laborers is that the former does not, whereas the latter does, provide for the settlement of jurisdictional disputes by the Joint Board PLUMBERS & FITTERS LOCAL 761, ETC. 139 At the hearing, the labor relations director of the AGC stated that Zaich Construction was not a member of that organization, that com- panies related to member companies are not themselves members by that fact alone, and that each business entity has to make separate application to AGC in order to be a member ands be bound by that Association's contracts with labor organizations. From all the above, we find that the AGC contract is not binding on Zaich Construction. Accordingly, we further find that Zaich Con- struction was not bound by the jurisdictional dispute processes of the Joint Board. Zarubica Company sent a letter of resignation to the AGC on April 25, 1962, and was informed by letter dated May 16 that its resignation had been accepted. Respondents contend, however, that negotiations between the AGC and the Laborers for a new contract to replace the one which had expired on May 1, 1962, culminated in an agreement between the parties on May 15, and that Zarubica's resignation 1 day later was thus untimely. In support of this con- tention, Respondents read into the record a portion of article II, section C of the AGC-Laborers contract which states that signatory members of the contract shall remain liable for the terms of the con- tract irrespective of whether they resign from AGC prior to the expiration date of the contract. However, a proviso to article II states that the provisions of the contract conferring jurisdiction on the Joint Board for the settlement of jurisdictional disputes shall not be binding upon a member subsequent to his resignation. It is clear, therefore, that at the time of the picketing Zarubica was not bound to the Joint Board. Apart from this absence of contract, moreover, the record is clear that neither Zaich Construction nor Zarubica had stipulated with either Respondent Union involved herein or with the Joint Board that it would be bound by the Joint Board plan. As for the Plumbers further contention that it is entitled to all the work in dispute under certain jurisdictional guidelines contained in agreements with the International Laborers and the International Boilermakers, the record discloses that neither Employer was a party to, nor has ever expressed an intention to be bound by, either agreement.8 In Local Union 825, International Union of Operating Engineers, AFL-CIO (Schwerman Co. of Pa., Inc.), 139 NLRB 1426, the Board held that an interunion agreement containing a method for the volun- tary adjustment of a jurisdictional dispute did not preclude the Board from considering the dispute where the employer was not a party 8 Although the Plumbers has not stated so specifically, it follows that it feels the Board is thus precluded from making a determination of the disputes 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereto and had not adopted the agreement. Accordingly, we find this contention to be without merit. As to the Laborers contention that a true jurisdictional dispute does not exist because the employees represented by the Plumbers are not now employees of these Employers, the Board has held that Sections 8(b) (4) (D) and 10(k) are not limited in their application to work disputes between two groups of employees both currently working for the same employer.' Accordingly, we find the Laborers contention without merit. We now turn to the dispute involving the welding. The award of the Joint Board to the Plumbers did not include welding. However, the Plumbers clearly claims that work for its members, as does the Boilermakers, whose members are currently performing the work. The record discloses that Zarubica has a contract with the Boiler- makers Union, dated October 1, 1962, which provides as follows : The Union and the Contractor agree that in the event any jurisdictional dispute shall arise, such dispute shall be settled in accordance with the practice of the Building and Construc- tion Trades Department of the American Federation of Labor, without permitting the same to interfere in any way with the progress or prosecution of the work. Both parties agree to be governed by whatever decision may be rendered. Thus, it is seen that Zarubica and Boilermakers are bound to the Joint Board as to any jurisdictional dispute involving them. Further- more, the Plumbers, by virtue of membership in the Building and Construction Trades Department of the AFL-CIO, is also bound to the Joint Board.10 There is no question, therefore, that the fore- going establishes an agreed-upon method for voluntary adjustment of the dispute as to Zarubica's welding. As the import of Section 10 (k) of the Act is "to encourage the parties involved in jurisdictional disputes to settle their differences amicably within the stabilizing compass of the collective-bargaining process and its resultant contracts," 11 and as the parties are agreed to do so, we find that we have no jurisdiction to pass upon the merits of Zarubica's welding dispute. Rather, as the Board has held, it will quash the notice of hearing in a proceeding once it appears that all parties have agreed upon a voluntary method of adjusting the O International Union of Operating Engineers , Local 66, AFL-CIO (Frank P. Badolato it Son), 135 NLRB 1392; International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Treasurers and Ticket Sellers Local No. 862, AFL- CIO (Allied Maintenance Company of Pennsylvania, Inc), 137 NLRB 738. " International Union of Operating Engineers, Local 66, AFL.-CIO (Frank P Badolato it Son), supra, at 1395 U Ironworkers Local No. 768 , International Association of Bridge, Structural and Orna- mental Ironworkers, AFL-CIO (Armco Drainage and Metal Products Cc , Inc ), 137 NLRB 1758, and footnote 1 therein. PLUMBERS & FITTERS LOCAL 761, ETC. 141 the dispute, whether or not the chosen method had theretofore been utilized to decide the issue.12 We shall therefore quash the notice of hearing with respect to the welding work of Zarubica sought by the Plumbers. The record further discloses , however, that Zaich Construction does not have a contract with the Boilermakers Union and is in no way whatsoever bound to the Joint Board. Accordingly, any determina- tion to be made by the Joint Board with respect to the welding on the Zaich Construction project would have no binding effect upon that employer. On the basis of the entire record, we find that there is reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred, and that the disputes other than the one involving Zarubica's welding are properly before the Board for determination under Section 10 (k) of the Act. The Merits of the Dispute The parties stipulated that there are no outstanding Board certifica- tions as to either of the Employers for any of the work in dispute. We shall first discuss the merits of the dispute between the Plumbers and Laborers, which involves all the work in contention except the welding. 1. Contract provisions Zaich Construction and Zarubica are both members of the UECA, which has a contract with the Laborers, the latest contract being dated May 1, 1962. Neither Employer nor UECA has a contract with the Plumbers. Article I of the UECA-Laborers contract is entitled "Work Cov- ered" and lists 26 specific work tasks over which it states the Laborers has jurisdiction . The work in dispute herein does not appear to be covered. Article XI of the contract is entitled "General Work Coverage" and speaks, in part, of : A. The construction of, in whole or in part , or the improvement or modification thereof, including any structures or operations which are incidental thereto, the assembly, operation, maintenance and repair of all equipment , vehicles and other facilities used in connection with the performance of the aforementioned work and services, and including without limitation the following types or classes of work : 1. . . . water supply, water development, reclamation, irriga- tion, drainage and flood control projects, water mains, pipe lines, sanitation and sewer projects, dams , aqueducts, canals, reservoirs, "Id., pp. 135,136 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intakes, channels, levees, dikes, revetments, quarrying of break- water or riprap stone; ... . Although apparently broad in its coverage, we do not believe that article XI alone can be relied on as necessarily dispositive of the specific work tasks involved in this proceeding. 2. Work skills The Employers contend that the work involved is very skilled and requires experienced employees. Specifically, they state that the in- side pointer must plaster the overhead are in such a manner that the grout will adhere to that surface , that the pipelayer must know the nature of the soil and be able to determine whether it is safe to work in the excavation or whether a collapse is imminent, and that the align- ing of the pipe must be made to rigid specifications. In their opinion, the men who are now working for them in the ditch have developed, through their long experience, a sixth sense by which they can deter- mine how safe the ditch is and how much time they will have in which to work safely after they have removed the lateral supports in the ditch so as to lower the pipe. At the hearing, there was testimony on behalf of several heavy construction contractors to the effect that their laborer employees have been with them for approximately 5 to 15 years and have been be- come increasingly skilled in their duties. Several contractors also testi- fied that plumbers had never done this type of work and that it would take years before they could become skilled at it. The Plumbers states that the work is actually semiskilled and that it has done it as part of the plumber's trade. At the meeting between the Plumbers and the Employers on December 3, 1962, however, the Plumbers displayed a lack of knowledge as to what the work entailed and stated its willingness to have a laborer do the work if he were cleared into the Plumbers Union. 3. Company and industry practice The evidence in the record leaves little doubt that plumbers are customarily employed to do analogous work tasks on distribution lines. Because the Plumbers contends that the line now under construction is a distribution line, whereas the Laborers argues that it is a trans- mission line, it is necessary to differentiate between the two types of lines. An analysis of the testimony taken at the hearing in this regard discloses that a transmission line is usually made of reinforced concrete pipe, is laid 10 to 30 feet in depth, is constructed of pipe of a greater diameter than 24 inches, and requires considerable shoring of the ditch before the pipe can be laid. On the other hand, a utility or distribution PLUMBERS & FITTERS LOCAL 761, ETC. 143 line is generally made of a different kind of pipe, transite pipe, is less than 24 inches in diameter, is usually laid in depths of 4 to 5 feet, requires no shoring of the ditch, and can have many of its joints made on the bank instead of in the ditch. In addition, a transmission line is for transportation of water from one area to another and does not have any local distribution system, whereas a distribution line distributes water in a particular locality to consumer outlets. It is uncontradicted that the units of line which Zaich Construc- tion and Zarubica were installing for the Calleguas Municipal Water District are reinforced concrete pipe, 48 inches in diameter, have no distribution laterals on them, and are being laid in the manner and to the depth of transmission lines in general. Accordingly, we find that these units are transmission lines. At the hearing, five persons engaged in heavy construction work, including Zaich, Zarubica, and Weeshoff, who are putting in sections of the Calleguas Municipal Water District line, and the president and executive secretary of the UECA, testified that it is customary prac- tice for these employers, and traditional throughout the industry, for the work in dispute to be assigned to members of the Laborers on trans- mission line projects. Zarubica stated that as far back as the 1920's only laborers had done this work; Zaich said that he always used la- borers for this work; another employer testified that he had used la- borers to do this work for many years, and had been, prior to that, a laborer himself doing similar work. In addition, there was a great deal of testimony at the hearing with respect to similar work that had been done in the past by these and other employers. On 12 other transmission lines, only laborers had been utilized to perform all the tasks which are presently in dispute. The Plumbers attempted to show that they had done similar work on eight or nine transmission lines in the past, including work done for the Hood Company on unit 1 of the Calleguas Municipal Water District line. However, it appears that on that particular job, in addi- tion to a plumber who did the welding, only one other plumber and a pipefitter, cleared into the Plumbers, were employed; and the re- mainder of the crew were laborers. On another job, the plumbers em- ployed were actually laborers who were forced to become members of the Plumbers for that job, but proceeded to their next job as laborers. On three other jobs, the lines which were constructed appeared to be distribution lines, as one serviced a pumping station, another was a lateral off a main line, and the third was for municipal fire use and had numerous outlets to fire hydrants. Another alleged transmission line likewise had all the indicia of a distribution line, the pipe being less than 30 inches in diameter, the ditches being only 4 or 5 feet deep, little shoring being done in the ditches, and the joints being made on the 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bank. Finally, there was a lack of evidence to bear out the claim that the other lines were in fact transmission lines. 4. Efficiency and safety of operations Zaich Construction and Zarubica state that the efficiency of their laborer employees is a consequence of the fact that many of these employees have been employed by them for a period of approximately 5 to 1-5 years. Related to their efficiency is their versatility, the ability not only to perform their prime tasks, but to continually assist on other aspects of the work such as shoring and grading the ditch, and throwing sand and backfill over the newly laid pipe. Their pro- ficiency in this regard is reflected in the fact that several of the key employees spend their entire time doing other related jobs on days when no pipelaying can be done. The Employers stress the inter- relationship of the different work tasks and the importance of the men in the ditch being able to work on different phases of the operation. The Employers are also very concerned with the safety aspect of the work. It is clear that where the ditches are 20 to 30 feet in depth, the men operate under hazardous conditions, with cave-ins an ever- present possibility, and the addition of men in the ditch increases the chances of an accident. Since the Plumbers does not seek to do the grading, shoring, backfilling, or other tasks related to the actual pipelaying, the Employers express concern about the presence of too many men in the ditch.13 For this reason, the Employers desire to use only experienced versatile laborers in this type of work. In fact, Matt Zaich testified that even if he were required to assign plumbers the work in dispute, he would still employ a laborer- foreman as a safety precaution because of that man's experience. 5. Agreement between Plumbers and Laborers The agreement of January 23, 1941, between the International Plumbers and the International Laborers was intended to clarify the jurisdiction of the respective Unions over different jobs which were a part of "all work on subways, tunnels, highways, viaducts, streets, and roadways in connection with sewers and water mains." [Em- phasis supplied.] Both Unions submitted into evidence jurisdictional dispute decisions of the Building and Construction Trades Depart- ment of the AFL pursuant to this agreement. A compilation of all these decisions shows that all water main work awarded to the 13 Although the Plumbers stated at the hearing that it was willing to have plumbers perform these related tasks , and that it had communicated this position to the Employers at the meeting of December 3 , the Employers did not recall any mention of this issue. In any event, there was no satisfactory showing that Plumbers was entitled to such related tasks PLUMBERS & FITTERS LOCAL 761, ETC. 145 Plumbers was limited to work done inside a building or where the water main led to a building.14 At the hearing, Mladin Zarubica, president of Zarubica, indicated that this 1941 agreement would not even apply to a waterline. He stated that a water main is a pipe that has an outlet to every property along its run, the word "main" indicating that it is the main supply of water in a given street to the properties on that street; on the other hand, a waterline transports water from a principal water source to a city, airfield, or other large installation, which is then serviced by water mains. Robert Wilkin, executive secretary of the UECA, corroborated Zarubica's testimony in this regard. We turn now to the merits of the dispute between the Plumbers and the Boilermakers, which involves only the welding. (a) Assignment made by the Employer Zaich Construction, the only Employer over whose dispute the Board has jurisdiction, does not have a contract with either union for the welding of transmission line joints. Originally, the Em- ployer subcontracted the welding to a member of the Plumbers Union. Shortly thereafter, this individual went on vacation, but found a replacement to do his work, a member of the Boilermakers Union who was still doing the welding at the time of the hearing. (b) Industry practice In its brief, the Employer urges the Board to determine this dispute in favor of the Boilermakers and contends that it is the practice in the industry to assign welding work on transmission lines to boiler- makers. The record clearly shows that on 3 of the 4 other units of the Calleguas Municipal Water District line which have been awarded, and on 11 other transmission lines which were laid between 1945 and 1960, members of the Boilermakers Union have been used (or in 1 case will be used) to do the welding. The contractor who was the second lowest bidder on the units of the present line which were awarded to Zaich Construction and Zarubica testified that he had used boilermakers to weld joints for 16 years, and had planned to use them on the jobs he bid on unsuccessfully. 6. Agreement between the Plumbers and Boilermakers The International Plumbers and the Boilermakers Unions signed an agreement on August 1, 1941, the purpose of which was to resolve 14 In fact, for the first 2 years of this agreement, the Laborers were being awarded all work on water mains laid on streets and roadways. Thereafter, the Laborers were re- stricted to work on sewers. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jurisdictional disputes between the two unions. The pertinent provi- sions of this agreement are sections 14 and 16 which reads as follows : SEC. 14. Plate fabricated aqueducts or water lines to the point where it enters city or town distributing system, whether riveted or welded, is the work of the Boilermakers. SEC. 16. All other classes of manufactured pipe-regardless of material-used in the pipefitting industry, is the work of the United Associated. At the hearing, the business manager of the Plumbers stated that by the terms of the 1941 agreement the Plumbers was entitled to the welding. However, as we have already found above, the line is in fact a transmission line, and, by the terms of section 14, would appear to be the work of the Boilermakers. Section 16, covering "other" situations, appears to be of little help because of its inherent ambiguities. There is, for one thing, no defuii- tion in the agreement of the phrase "used in the pipefitting industry." In addition, there is uncertainty as to whether the phrase "all other classes of manufactured pipe" was meant only to cover the type of pipe in existence at the time of the agreement. In this regard, there is conflicting testimony at the hearing as to whether the pipe being laid for the Calleguas Municipal Water District line had been in use in 1941. Conclusion In International Association of Machinists Lodge No. 1743, AFL- CIO (J. A. Jones Construction Co.), 135 NLRB 1402, the Board set forth the following criteria to be considered in the making of an affirmative award under the CBS decision: 15 The Board will consider all relevant factors in determining who is entitled to the work in dispute, e:g., the skills and work in- volved, certifications by the Board, company and industry prac- tice, agreements between unions and between employers and unions, awards of arbitrators, joint boards and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer's business. Having taken all these factors into consideration, and upon the record as a whole, we believe that laborers, rather than plumbers, are entitled to the work in dispute between these two groups. In reaching this conclusion, we rely upon the work skills of the laborers, company and industry practice, and the efficiency and safety of the operations. We reject the contention that the agreement between the International Plumbers and the Laborers assigns the work in dispute to plumbers. Rather, that agreement and the awards rendered pursuant to it bear 15 N L R.B v Radio & Television Broadcast Engineers Union, Local 1212 , IBETV, supra PLUMBERS & FITTERS LOCAL 761, ETC. 147 out the contention of the Laborers and the Employers that it is re- stricted to distribution lines alone. We further believe that boiler- makers, rather than plumbers, are entitled to do the welding on the Zaich Construction job, and rely on the present practice in the industry in reaching this determination. We also reject the contention that an agreement between the International Plumbers and the Boilermakers Unions, setting out the jurisdiction of the respective unions , offers any support for the position of the Plumbers . One section of that agreement appears to uphold the Boilermakers contention , and the other section is too ambiguous and obscure to be relied upon for sup- port of the Plumbers contention. Based on the foregoing , we shall determine the first dispute by de- ciding that laborers, rather than plumbers, are entitled to the work of installation, including rigging, handling , lowering into ditch, aligning, leveling, and making of joints, of 48-inch steel core concrete pipe. In making this determination , we are assigning the disputed work to laborers who are represented by the Laborers Union, but not to the Laborers Union or its members. We shall determine the second dispute by deciding that boiler- makers rather than plumbers are entitled to the work of welding trans- mission line joints. In making this determination , we are assigning the work to welders who are represented by the Boilermakers, and not to the Boilermakers or its members. Our assignments are to be regarded, moreover, as limited to the facts and circumstances of the Employers' construction operations, and as directed at the controversies which gave rise to these proceed- ings. Also, in view of the assignments we have made, we shall provide in our determination that the Plumbers was not, and is not, entitled to use methods proscribed by Section 8(b) (4) (D) of the Act to force or require Zaich Construction or Zarubica to assign work to its mem- bers rather than to employees represented by the Laborers. We shall further provide that the Plumbers was not, and is not, entitled to use methods proscribed by Section 8(b) (4) (D) of the Act to force or re- quire Zaich Construction to assign work to its members rather than to employees represented by the Boilermakers. The Scope of the Determination The Laborers urges the Board to make the award applicable only to those jobs on which the disputes arose. On the other hand, the Re- spondent -and the AGC contend that the award should cover all the pipeline work for the Calleguas Municipal Water District. The Em- ployers take an intermediate position, and contend that the award should cover those jobs on which the disputes arose and, any subse- quent jobs by the same contractors on the same project. 727-083-64-vo1. 144-11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As we pointed out in the Badolato case,16 if there is evidence that similar disputes may occur in the future, the Board need not as a policy matter restrict itself to a single job determination. At the hearing in this case, it was shown that the entire project will require approximately 21/2 years to complete, and that Zarubica had already been awarded the contract on unit 5 of the same project. Accordingly, we hold that the determination should apply not only to the jobs upon which the disputes arose, but to all similar work done or to be done by Zaich Construction and Zarubica on any other units on the Calleguas Municipal Water District, but not to other employers not parties herein. DETERMINATION OF DISPUTES Upon the basis of the foregoing findings and the entire record in this case, the Board makes the following Determination of Disputes pursuant to Section 10 (k) of the Act : 1. Employees engaged as laborers, currently represented by the Southern California District Council of Laborers and its affiliated Labor Unions, are entitled to perform the installation, including rigging, handling, lowering into ditch, aligning, leveling, and making of joints, of 48-inch steel core concrete pipe for Matt J. Zaich Con- struction Co. and Zarubica Company on the Calleguas Municipal Water District line. Accordingly, Plumbers & Fitters Local 761 of the United Association of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, and International Union of Operating Engineers, Local Union No. 12, AFL-CIO, are not entitled to force or require Matt J. Zaich Construction Co. or Zarubica Company to assign the above- mentioned disputed work to plumbers represented by Local 761. 2. Employees engaged as boilermakers, currently represented by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 92, are entitled to per- form the welding of transmission line joints for Matt J. Zaich Con- struction Co. on the Calleguas Municipal Water District line. Ac- cordingly, Plumbers & Fitters Local 761 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, and Interna- tional Union of Operating Engineers, Local Union No. 12, AFL-CIO, are not entitled to force or require Matt J. Zaich Construction Co. to assign the above-mentioned disputed work to plumbers represented by Local 761. 3. Within 10 days from this Decision and Determination of Dis- putes, Plumbers & Fitters Local 761 of the United Association of ie Internatwnai Union of Operating Engineers, Local 66, AFL-CIO (Frank P. Badolato 4 Son), supra at 1401. METROPOLITAN LIFE INSURANCE COMPANY 149 Journeymen and Apprentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, AFL-CIO, and Interna- tional Union of Operating Engineers, Local Union No. 12, AFL-CIO, shall notify the Regional Director for the Twenty-first Region, in writing, whether or not they will refrain from forcing or requiring either Matt J. Zaich Construction Co., or Zarubica Company as to laborers only, by means proscribed by Section 8(b) (4) (D) to assign the work in dispute to plumbers rather than to laborers and boilermakers. [The Board quashed the notice of hearing with respect to the weld- ing of transmission line joints for the Zarubica Company.] Metropolitan Life Insurance Company and Insurance Workers International Union, AFL-CIO, Petitioner. Case No. 13-RC- 9051. August 21, 1963 DECISION ON REVIEW On March 14,1963, the Regional Director for the Thirteenth Region issued a Decision and Direction of Election in the above-entitled pro- ceeding, finding appropriate a unit of all Metropolitan Insurance consultants, canvassing agents, and all regular and office account agents of the Employer at its district and detached offices located in the Greater Chicago, Illinois, area. Thereafter, in accordance with Section 102.67 of the Board's Rules and Regulations, as amended, both Petitioner and the Employer filed with the Board timely re- quests for review of such Decision and Direction of Election, averring that substantial questions of fact and law were raised with respect to the Regional Director's unit determination. The Petitioner ques- tions the geographic scope of the unit as found by the Regional Director, while the Employer challenges the Regional Director's decision to include insurance consultants in the unit found appropri- ate. The Board, by telegraphic Order on April 4, 1963, granted both requests for review and stayed the election. Thereafter, the Employer and the Petitioner filed briefs.' The Board has considered the entire record in this case with respect to the Regional Director's determination under review, together with the briefs of the parties, and hereby affirms the Regional Director to the extent consistent with our decision herein. 1 The Employer has requested oral argument. Because, in our opinion, the record and briefs adequately set forth the issues and positions of the parties, this request is thereby denied. 144 NLRB No. 15.