Plumbers, Local 65

484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Local 65 and Kieffer Bros. Construction Company, Inc.` and Laborers In- ternational Union of North America, AFL-CIO, Lo- cal No. 1262. Case 14-CD-353 May 24, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Kieffer Bros. Construction Company, Inc., hereinafter called Kieffer or the Employer, alleg- ing that United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Local No. 65, hereinafter called Plumbers, had violated Section 8(b)(4)(D) of the Act. A hearing was held pursuant to notice at Shelbyville, Illinois, on January 21, 1971, before Hearing Officer John H. Martin. The Employer, Plumbers, and Laborers International Union of North America, AFL-CIO, Local No. 1262, hereinafter called Laborers, appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues. The Employer and Plumbers have filed briefs with the National Labor Relations Board. 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 powers in connection with this case to a three-member panel. The rulings of the Hearing Officer made at the hear- ing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I THE EMPLOYER All parties stipulated that Kieffer is a Kentucky cor- poration engaged in the construction business as a pip- ing contractor installing sewer, gas, and water pipelines in the State of Illinois, and that during the past year Kieffer, in the course and conduct of its business opera- tions, purchased pipe and pipeline products and other goods valued in excess of $50,000, which goods and materials were transported and delivered directly to its principal place of business in Mt. Carmel, Illinois, or I The name of the Employer appears in the caption as amended at the hearing 190 NLRB No. 89 to construction sites located in the State of Illinois, directly from points located outside the State of Illinois. The parties agree, and we find, that Kieffer 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. Background and Facts of the Dispute The dispute herein involves the stringing, hooking, and signaling of pipe by Kieffer in connection with the laying of water transmission lines for the city of Shelby- ville, Illinois. Kieffer performs work at two jobsites on this project. The first is situated outside the Shelbyville city limits and will be referred to herein as the country site. The second is situated within the city limits of Shelbyville and will be referred to herein as the city site. The record reveals that the dispute herein was confined to the country site. Members of Plumbers performed all the hooking and signaling at the city site, with no competing claims from Laborers; similarly, members of Laborers per- formed all the stringing work at the city site, with no competing claims on this work being made by Plum- bers. Consequently, the discussion and assignment made herein will be confined to the country site. The work involved in stringing pipe consists of plac- ing joints or lengths of pipe along a road next to a ditch. The work involved in hooking pipe consists of attach- ing these joints of pipe to a machine commonly known as a Cherry Picker so that the pipe may be lowered into the ditch. The signaling operation involved standing at the edge of the ditch and giving directions to the Cherry Picker operator as the pipe is lowered into the ditch. Kieffer is a party to collective-bargaining agreements with both Plumbers and Laborers. The Plumbers agreement states in pertinent part: Article III Jurisdiction of Work The Employer agrees that the following described work shall be performed by employees covered by the terms of this agreement: 42. All pipe transportation lines for gas, oil, gaso- line, fluids and liquids, water aqueducts, and water lines, and booster stations of every description. The Laborers contract states in pertinent part: Article XVI PLUMBERS, LOCAL 65 485 Laborers Jurisdiction did not resume on the Shelbyville project until Septem- It is further agreed that the following work shall ber 28. be done by Laborers: ... handling, distributing, laying and making of all joints on watermains, ... signal men by any made [sic] or method, .. . On June 24, 1970,2 Kieffer held a prejob conference attended by, inter alios, representatives of Plumbers and Laborers, in which Kieffer's requirements for the Shelbyville job were explained. In the course of this conference Plumbers and Laborers agreed that they would follow what is commonly known as the 1941 Agreement between their respective international un- ions regarding the assignment of work to be performed on the Shelbyville project. Work on the country site began on July 13 but members of Plumbers failed to appear on this date. Kieffer accordingly assigned mem- bers of Laborers to do all of the work on the project (excepting that work performed by members of other unions not here involved). On July 16, Plumbers Business Agent Benton visited the country site and claimed the hooking and signaling work being done by members of Laborers. Laborers continued to claim this work and, in order to avoid delay, Kieffer agreed that a member of Laborers and a member of Plumbers could share this work although the signaling and hooking operation was normally con- sidered a one-man job. On August 24, while members of Laborers were pre- paring to string pipe, Plumbers Job Stewart Bodine told Foreman Keepes that if Laborers continued to string pipe, he (Bodine) would shut the job down. Bodine then left the jobsite, called Business Agent Benton, and was told that this matter would be discussed in a Plumbers meeting the following evening. Members of Laborers continued to string the pipe. Although Benton denied ever claiming the stringing of pipe, Eugene Kieffer, secretary and treasurer of the Employer, testified that during the latter part of August Benton told him that Plumbers should be performing this work. On August 27, Job Steward Bodine told Kieffer that Plumbers would go out on strike if members of Labor- ers continued to share with Plumbers the hooking and signaling work. From August 27 to September 3 only members of Plumbers were assigned the hooking and signaling. On September 3, Bodine and one other plumber were discharged. A member of Laborers was then assigned to do the hooking and signaling work. On September 4, Plumbers went on strike and began picketing both the city and the country sites, in part to protest Kie- ffer's action in allowing Laborers to perform hooking and signaling work after Bodine was terminated. Work B. The Work in Dispute This proceeding pertains to the assignment of the work involved in stringing, hooking, and signaling pipe at Kieffer's country site. C. The Contentions of the Parties Plumbers maintains that the Notice of Hearing in this matter was defective in that it related only to the 10(k) aspects of the hearing and did not give notice as to any other matter.' Plumbers contends that this con- stitutes a denial of due process. In addition, Plumbers states that it does not now, and never has in the past, claimed stringing work. Moreover, Plumbers argues that a method of voluntary settlement has been agreed upon in this case due to the fact that Kieffer requested the National Joint Board for the Settlement of Jurisdic- tional Disputes to take action in this matter. Finally, Plumbers contends that the hooking and signaling work was assigned to Plumbers at Kieffer's prejob con- ference and that the area practice requires that Plum- bers be assigned this work. Kieffer argues that Laborers should be assigned the work because the collective-bargaining agreement with this Union clearly spells out that the disputed work is within its jurisdiction, while Plumbers agreement is ambiguous on this score. Kieffer contends that Plum- bers did claim the stringing work through both Job Steward Bodine and Business Agent Benton. Kieffer denies that there has been any agreement by all parties to the dispute to submit this issue to the National Joint Board, and further denies that the disputed work of hooking and signaling was assigned to Plumbers at the prejob conference. Finally, Kieffer contends that com- pany, industry, and area practice, as well as the effi- ciency of operations and the degree of skill involved in the disputed work, require that the work be assigned to Laborers. D. Applicability of the Statute Before the Board may proceed to a determination 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) has been violated. As indicated above, Job Steward Bodine, on August 24, and again on August 27, threatened that Plumbers would go out on strike if Laborers continued to per- form the disputed work. Moreover, one of the reasons for Plumbers strike against Kieffer on September 4 was ' Apparently what Plumbers means by this argument is that no All dates are 1970 unless otherwise indicated 8(b)(4)(D) violation was alleged in the notice 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fact that members of Laborers were performing hooking and signaling work on September 3. We find, therefore, that there is reasonable cause to believe that violations of Section 8(b)(4)(D) have oc- curred and that the dispute is properly before us for determination under Section 10(k) of the Act.' E. 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 all relevant factors. In In- ternational Association of Machinists, Lodge No. 1743, AFL-CIO (JA. Jones Construction Co.), 135 NLRB 1402, 1410-11, the Board set forth the following crit- eria to be considered in the making of an affirmative award in a 10(k) proceeding: The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g., the skills and work involved, certifications by the Board, company and industry practice, agree- ments between unions and between employers and unions, awards of arbitrators, joint boards, and the AFL-CIO in the same or related cases, the assign- ment made by the employer, and the efficient oper- ation of the employer's business. Among the factors referred to above are some which are of little or no use in resolving the present dispute. There is no evidence indicating that there have been certifications issued by the Board covering any em- ployees of Kieffer. In addition, although Plumbers claims that hooking and signaling was orally assigned to it during Kieffer's prejob conference, this claim is not proved to our satisfaction by the evidence in the record. Indeed, it is clear that, as Benton acknowledged in the hearing, both Plumbers and Laborers interpreted the 1941 Agreement as giving this work to themselves. Moreover, while Plumbers and Laborers parent Inter- national unions have met at least once in an attempt to interpret this 1941 Agreement, it is not at all clear that a definite accord has been reached. We therefore set forth below those other factors which we find relevant in determining this dispute. 1. Company and industry practice In approximately 75 percent of Kieffer's Illinois jobs, laborers have performed the disputed work, while in the remaining 25 percent the work has been performed by plumbers. Although the record is unclear as to the prevailing practice in Shelby County (in which Shelby- ville is located), it appears that in the State of Illinois as a whole the assignments of the disputed work have been in line with those made by Kieffer. 2. Bargaining agreements The portion of the Plumbers contract outlining its jurisdiction covers the laying of water transmission lines in general terms, while the Laborers contract is more specific and extends to handling, distributing, lay- ing, and making of all joints on water mains and to signal work of any description. The specificity of the Laborers agreement is a factor which favors it. 3. Skill of the employees The record clearly shows that the work involved in this dispute does not require any especially advanced skills, and those skills which are required can be ac- quired in a relatively short period of time. Moreover, there is no showing of the need for the utilization of the advanced skills possessed by plumbers. Laborers ap- pear to be both capable of performing the work effi- ciently and experienced in doing so. 4. Efficiency and economy of operations As indicated above, laborers are fully capable of per- forming the disputed work. Moreover, the record re- veals that when laborers were performing this work they accomplished at least as much, if not more, work than when plumbers were performing the work. Not only were Kieffer's costs of operations increased when plumbers were performing the disputed work, but also these costs were compounded when both a laborer and a plumber were performing the one-man job of hooking and signaling. Thus, assignment to plumbers will in- crease cost without increasing efficiency. Conclusions As noted above ,-, Plumbers contends that there has been an agreement upon a voluntary method of adjustment of this dispute . This argument is based upon the fact that Kieffer notified the National Joint Board of the existence of the dispute herein We find this contention to be without merit We do not consider Kieffer's mere notification to the National Joint Board that a dispute exists to be, ipso facto, a commitment to be bound by that body's decision Moreover, the other party to the instant dispute , Laborers, have not evidenced a willingness to submit the dispute to the Joint Board Laborers , in its collective-bargaining agreement with Kieffer, is required to make such a submission only if Associated General Contractors of Illinois and Central Illinois Laborers Distract Council expressly approve . The record is clear that neither of these two bodies has granted such approval Upon the record as a whole, and after full considera- tion of all relevant factors involved, we believe that employees represented by Laborers rather than those represented by Plumbers are entitled to the work in dispute.' We rely upon the facts that an assignment to ' Plumbers contends that it does not now claim , and never has claimed, stringing work The record is clear, however, that Job Steward Bodine threatened a strike if laborers continued to perform this work In addition, although Benton denied ever claiming stringing , Eugene Kieffer testified PLUMBERS, LOCAL 65 laborers is consistent with Kieffer's and the industry's prevailing practice, that the Laborers collective-bar- gaining agreement specifically covers the disputed work, that the employees represented by Laborers pos- sess the requisite skills to perform the work, and that such an assignment will result in efficiency and economy of operations. Accordingly, we shall deter- mine the dispute before us by awarding the work in dispute, the stringing, hooking, and signaling of pipe at Kieffer's country site in its Shelbyville water transmis- sion project, to those employees represented by Labor- ers. In consequence, we also find that Plumbers has not been, and is not now, entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Kieffer to assign the disputed work to its members.' Scope of Determination Kieffer, in its brief, requests that the Board's award be extended to all of its future projects in the central Illinois area . Although the Board need not restrict its award to a single job if there is evidence that similar disputes will occur in the future,' we conclude that the evidence here does not warrant a finding extending to Kieffer's future projects in central Illinois. Therefore that Benton did claim stringing work at the same time he claimed hooking and signaling Because of these factors, and because there is no assurance that officials of Plumbers will not claim this work in the future, we shall include stringing in the assignment ' As mentioned above, Plumbers contends that the Notice of Hearing in this matter was defective The argument is made that this Notice related only to the 10(k) aspects of the hearing and did not give notice as to any "expanded scope of the hearing " We find this contention to be without merit. The original Notice of Hearing clearly states that the 10(k) hearing arose out of the 8(b)(4)(D) charge filed by Kieffer on September 17 It is axiomatic that in a 10(k) proceeding , findings are made not that Section 8(b)(4)(D) has been violated , but merely that there is reasonable cause so to believe ' Building and Construction Trades Council of Las Vegas (Charles Dorf- man), 173 NLRB No 208 487 we will limit our award to the project presently under consideration. 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 proceed- ing, the National Labor Relations Board hereby makes the following determination of the dispute: 1. Employees employed by Kieffer Bros. Construc- tion Company, Inc., and represented by Laborers In- ternational Union of North America, AFL-CIO, Local No. 1262, are entitled to perform the disputed work of stringing, hooking, and signaling pipe at the country site of Kieffer's project of laying water transmission lines for the city of Shelbyville, Illinois. 2. United Association of Journeymen and Appren- tices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Local No. 65, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Kieffer Bros. Construc- tion Company, Inc., to assign the disputed work to employees who are represented by that labor organiza- tion. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Association of Jour- neymen and Apprentices of the Plumbing and Pipefit- ting Industry of the United States and Canada, AFL- CIO, Local No. 65, shall notify the Regional Director for Region 14, in writing, whether it will refrain from forcing or requiring Kieffer Bros. Construction Com- pany, Inc., by means proscribed in Section 8(b)(4)(D), to assign the work in dispute to employees represented by it rather than to employees represented by Laborers International Union of North America, AFL-CIO, Lo- cal No. 1262.