Plumbers, Local 122

PLUMBERS, LOCAL 122 33 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 122, AFL-CIO and The Conduit and Foundation Corp. and R. A. Hamilton Corporation, a Joint Venture and Laborers Interna- tional Union of North America, Heavy and General Laborers' Local 472, AFL-CIO. Case 22-CD-175 April 23, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by The Conduit and Foundation Corp. and R. A. Hamilton Corporation, a Joint Venture, herein called the Employer, alleging that United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 122, AFL-CIO, herein called Plumbers, had vi- olated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held in Newark, New Jersey, before Hear- ing Officer Louis A. Cappadona on September 28, 1970, at which Laborers International Union of North America, Heavy and General Laborers' Local 472, AFL-CIO, herein called Laborers, intervened. All par- ties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues.' Briefs were thereafter filed by the Employer and Laborers. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case 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 affirmed. Upon the entire record in this case, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER The Conduit and Foundation Corp. is a Pennsyl- vania corporation engaged in the construction of com- mercial structures in the State of New Jersey and other States. During the past 12 months, it received revenues in excess of $500,000 for construction work performed in the State of New Jersey, and during the same period it purchased materials in excess of $50,000 from out- ' Plumbers withdrew from the hearing prior to its close and expressly waived the right to present any further evidence or to cross-examine wit- nesses side the State of New Jersey, which were shipped di- rectly to a jobsite in Livingston, New Jersey. R. A. Hamilton Corporation is a New Jersey corpo- ration engaged in the construction of commercial struc- tures in the State of New Jersey. During the past 12 months it received revenues in excess of $500,000 for construction work performed in the State of New Jer- sey, and during the same period it purchased materials in excess of $50,000 from outside the State of New Jersey, which were shipped directly to the jobsite at Livingston, New Jersey. The above-named two corporations formed a joint venture for construction work at the Livingston, New Jersey, shopping mall here involved and are the Em- ployer in this case. We find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that Plumbers and Laborers are labor organizations within the mean- ing of Section 2(5) of the Act. III THE DISPUTE A. The Facts The Employer has a subcontract with N. K. Winston Company, herein called Winston, the general contrac- tor for the construction of a shopping mall at Living- ston, New Jersey. The subcontract provides for the installation of storm drainage sewers in the parking lot which will serve the mall. This work began on August 18, 1970, and the subcontract required that it be com- pleted by November 15, 1970. The work involved the installation of corrugated metal bituminous-coated storm drainage pipe which ranges from 2 to 8 feet in diameter. After operating engineers of the Employer dig a trench and lower the sections of pipe, the Employer's laborers use pick and shovel to grade the trench properly and join the sec- tions of pipe with a collar-like fastener secured with nuts and bolts. There is no sweating or welding of sections of pipes or fasteners. The laborers then shovel back dirt to cover the pipe so that the operating engi- neers can complete backfilling the trench without dam- aging the pipe. The pipe will carry only rain water and melted ice and snow away from the parking lot area to drainage canals. No sewage or other waste water from the shopping mall will be transported by the pipe. All water carried by the pipe will be free-flowing rather than under pressure. 190 NLRB No. 7 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer and Laborers have adopted and are bound by the collective-bargaining agreement between Laborers and the Associated General Contractors of New Jersey. The agreement, in part, covers the installa- tion of storm drainage sewers, the work here in dispute. Pursuant to the agreement, the Employer assigned the work to its laborers. On or about August 25, 1970, Patrick Rush, business manager for Plumbers, told Stephen Fleming, the Em- ployer's project manager at the jobsite, that the Em- ployer's laborers were doing plumbers' work, and re- quested that the work be reassigned to Plumbers' members. Thomas Knowles, the Employer's manager of construction was informed of this conversation by Fleming, and a decision was made to deny Plumbers' request. On August 26, 1970, Plumbers commenced picket- ing the jobsite with signs which stated: "PLUMBERS LOCAL 122 NOT PROPERLY REPRESENTED AT THIS JOB." The picketing continued until Sep- tember 1, 1970, when it was voluntarily discontinued. At or about this time, Plumbers also requested the township of Livingston to compel the Employer to reassign the work to licensed plumbers, allegedly as required by an ordinance of the township adopting the Plumbing Code of New Jersey. Township officials refused this request on the ground that the ordinance did not require that the work be done only by licensed plumbers. Plumbers thereupon brought suit in a state court to enforce its interpretation of the ordinance. As appears from the amended complaint in this state court suit, which was placed in evidence by Plumbers, Plum- bers in part demanded a judgment of the state court directing the Employer to employ licensed plumbers for such installation, and for other relief. The record contains no evidence of any decision by the state court. B. The Work in Dispute The dispute concerns the installation of storm drain- age pipes or sewers in the new parking lot being con- structed as part of the Livingston shopping mall. C. Applicability of the Act Before the Board may proceed 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 satisfies us that there is a reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred . The dispute is thus properly before us for determination. D. The Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to the various relevant factors involved.' The following factors are relevant in making a determination of the present dispute: 1. Certifications and collective-bargaining agreements There is no outstanding Board order or certification involving the disputed work, nor does Plumbers have any collective-bargaining agreement assigning it the work. However, Laborers and the Employer have adopted the collective-bargaining agreement currently in force between Associated General Contractors of New Jersey and Laborers, recognizing Laborers as the exclusive collective-bargaining representative for all employees of the Employer engaged in certain types of work, including work of the nature currently in dis- pute. 2. The Employer's practice The Employer considers the work here in dispute to be relatively unskilled work involving principally the use of picks and shovels and light hand wrenches. In accordance with the collective-bargaining agreement, the Employer has assigned the disputed work to its own employees, who are laborers. 3. Area practice The record shows that laborers have been perform- ing work such as is here in dispute for the past 30 years. This evidence is uncontradicted by Plumbers. 4. Efficiency and economy of operations The record contains uncontradicted evidence that the performance of the disputed work by laborers is both efficient and economical and is not and has never been considered to constitute a health or safety danger to the community. 5. License requirements According to uncontradicted testimony adduced by the Employer, there are no license requirements for employees performing the disputed work. Plumbers contends that the previously mentioned ordinance of the township of Livingston is applicable to the dispute and requires that the work be performed by licensed plumbers. In support of this contention, Plum- bers placed in evidence a copy of an amended com- ' International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Co.), 135 NLRB 1402. PLUMBERS , LOCAL 122 35 plaint it had filed in a civil action in a state court against the Employer and others, alleging that the ordinance adopted the Plumbing Code of New Jersey; setting forth certain alleged portions of the Code requiring that the installation of storm drainage facilities adjacent to any building, structure, or conveyance to a point of connection to a public or private sewerage system or other acceptable terminal be performed by licensed plumbers;3 further alleging that although Plumbers had requested officials of the township of Livingston to compel the Employer to comply with the ordinance and provisions of the Code as construed by Plumbers, such officials refused to do so; and requesting the court in effect to construe the ordinance and Code as con- tended for by Plumbers and to enjoin the Employer from performing the disputed work with employees other than licensed plumbers. Even assuming, arguendo, the accuracy of the ex- cerpts from the Code set forth in Plumbers' amended complaint, and further assuming the inapplicability of the portions of the Code not excerpted by Plumbers, we are not persuaded, particularly in the face of the inter- pretation adopted by the township of Livingston, that the ordinance and Code require the disputed work to be done by licensed plumbers. Conclusions The evidence set forth above indicates that the Em- ployer's own employees, currently represented by La- borers, are entitled to perform the work in dispute. Plumbers in effect conceded at the hearing that if, contrary to its position, the Board regards the present dispute as a jurisdictional dispute within the meaning of Section 8(b)(4)(D), on the present record Laborers is entitled to the work. Plumbers' defense is that the township's ordinance requires the disputed work to be done by licensed plumbers, but that if the state court rules against it, Plumbers will make no further claim for the work. In addition, Plumbers asks that the Board withhold action until the court has ruled on its claim. In the alternative Plumbers asks the Board to interpret the ordinance and Code, to reverse the officials of the township of Livingston and find that the ordinance and Code require the disputed work to be performed by licensed plumbers, and to consider such finding to be a controlling factor in determining the present dispute. We find no merit in Plumbers' contentions. On the basis of the ruling of the Livingston township officials and of the evidence in the present record, we conclude that there is no requirement that the disputed work be performed by licensed plumbers. We also conclude, upon the basis of the findings and reasoning set forth above, that the Employer's laborers are entitled to per- form the work in dispute.' In making this determina- tion, it is to be noted that we are assigning the disputed work to employees who are represented by Laborers, but not to that labor organization or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoing findings and the entire record in this case, the National Labor Relations Board hereby makes the fol- lowing determination of dispute: 1. Employees of The Conduit and Foundation Corp. and R. A. Hamilton Corporation, a Joint Venture, who are currently represented by Laborers International Union of North America, Heavy and General Labor- ers' Union Local 472, AFL-CIO, are entitled to per- form the work of installing storm drainage sewers in the new parking lot being constructed for the shopping mall in Livingston, New Jersey. 2. United Association of Journeymen and Appren- tices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 122, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require The Conduit and Founda- tion Corp. and R. A. Hamilton Corporation, a Joint Venture, to assign such work to plumbers represented by it. 3. Within 10 days from this Decision and Determina- tion of Dispute, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 122, AFL- CIO, shall notify the Regional Director for Region 22, 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 work in dispute to plumbers represented by it rather than to the Employer's employees currently represented by Labor- ers International Union of North America, Heavy and General Laborers' Local 472, AFL-CIO. ' Although the portions of the Code set forth in the amended complaint provide that permits should be issued only to master plumbers "except as provided in 14 1 2 and 14 1 3," the provisions of 14 1 2 and 14 1 3 were not attached ' If subsequent court decisions or other new evidence not presently in th. record shows that the Livingston ordinance requires the disputed work t, be done by licensed plumbers, a motion for a reopening of this matter woul, be the appropriate means for requesting that we give consideration to th effect of such new evidence on our conclusions