Plumbers Local 157

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plumbers and Steamfitters Local Union No. 157 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO and Curry Construction Company and Laborers' International Union of North America, AFL-CIO, Local Union No. 204. Case 25-CD-116 October 6, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , following the filing of charges by Curry Construction Company, herein called Employer, alleging that Plumbers and Steamfitters Local Union No. 157 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called Plumb- ers or Local 157, violated Section 8 (b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Employer to assign certain work to Plumbers rather than to employees represented by Laborers' International Union of North America , AFL-CIO, Local Union No. 204, herein called Laborers or Local 204. Pursuant to notice, a hearing was held before Hearing Officer Michael J. Fogerty on June 8, 1971. All parties appeared at the hearing and were afforded full opportunity to be heard,' to examine and cross- examine witnesses , and to adduce evidence bearing on the issues. Thereafter, briefs were filed by Employer and Laborers.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Hearing i Plumbers appeared but left as a demonstration of protest over refusal of this Board to waive its jurisdiction over these issues to the National Joint Board for Settlement of Jurisdictional Disputes, herein called Joint Board 2 Plumbers did not file a brief , but stated by letter it would rely on the brief filed in the earlier 10(k) proceeding It should be noted that this proceeding is, in essence, a continuation of Case 25-CD-107 The issue in Case 25-CD-107 concerned the assignment of "the handling and installation of sewer pipe and all piping in connection with forced mains " Here the only additional matter at issue is the unloading of that sewer pipe and other materials The same job is involved and the parties are all the same. In Case 25-CD-107 the Board issued a decision on June 21, 1971 (Curry Construction Company, 191 NLRB No 25), awarding the work there in issue to the employees of Curry represented by Laborers That case will be referred to as 191 NLRB No 25 3 The parties stipulated that the entire record in 191 NLRB No 25 be incorporated by reference into this proceeding We have therefore Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the briefs of the parties and the entire record in this case3 and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that Employer is a construction company with its principal offices in Bloomington, Indiana, engaged in the utility con- struction business, including the installation of water mains and sewerlines. The parties stipulated, and we find, that Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein (see 191 NLRB No. 25). II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Laborers and Plumbers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute4 The dispute involves the unloading of all piping in connection with forced sewer mains and lift stations pursuant to Employer's contract with the city of Terre Haute, Indiana, for the construction of sewers, lift stations, and forced mains, known as Local Sanitary Sewer Project, Section A, Areas 1 through 4. Employ- er started construction on the sewer project around the first of October 1970. Employer has contracts with Laborers and with Operating Engineers but not with Plumbers. Employer's contract with Laborers is effective from April 1, 1968, to March 31, 1970. On August 4, 1970, Employer assigned, in writing, to employees repre- sented by Laborers all work on the jobsite that is covered by the "Manual of Jurisdiction," a pamphlet which was drafted in October 1961 and outlines the jurisdictional claims of Laborers. Employer has an considered the entire record in that case At the hearing the Employer moved that the instant case be consolidated with Case 25-CD-107 (191 NLRB No 25) under Sec 102 33(a)(2)(d) of the National Labor Relations Board's Rules and Regulations , Series 8, as amended, because the same parties , same project, same work assignment, and same underlying facts are involved in both cases One of the purposes of that rule is to avoid unnecessary costs and delay However, due to the fact that the earlier case, Case 25-CD-107, has already issued as 191 NLRB No . 25, such a consolidation would not only be impractical but would serve no actual purpose Accordingly, Employer's motion to consolidate is hereby denied. 4 As indicated supra, the Board in 191 NLRB No 25, awarded the handling and installation of the piping on this project to the employees of the Employer represented by Laborers . To the extent possible we will limit our discussion herein to the unloading of said sewer pipe For a complete discussion of the background and facts see sec III, A, in 191 NLRB No 25 193 NLRB No. 77 PLUMBERS LOCAL 157 543 agreement with Operating Engineers, effective April 1, 1968, to March 31, 1971, known as the Sewer Agreement and containing a provision for the submission of jurisdictional disputes to the Joint Board. On August 24, 1970, Operating Engineers submitted to Employer a Memorandum of Pre-Job Conference which claimed, among other things, jurisdiction over lift stations including piping, forced mains, tanks, and all water pumps at the Terre Haute job, work which is in dispute here. Employer refused to sign that memorandum. However, on September 2, 1970, Operating Engineers submitted a second Memoran- dum of Pre-Job Conference which did not include claims to the work involving the lift stations, piping, and forced mains, and Employer signed such agree- ment. Following Operating Engineers' claim to the disputed work of installing lift stations and forced mains, Plumbers submitted the matter to the Joint Board. Employer denied that the Joint Board had jurisdiction over the dispute, and notified that board on November 16, 1970, that it had assigned the installation of lift station equipment to members of Operating Engineers and that all other work was assigned to members of Laborers. On November 20, 1970, the Joint Board entered an award in favor of Plumbers. Notwithstanding the Joint Board award of Novem- ber 20, 1970, Employer began work on the project with crews consisting of Laborers and Operating Engineers as it had intended. In essence Operating Engineers operate the heavy equipment; all other work is done by Laborers. The hearing in 191 NLRB No. 25 was held on February 10, 1971. On April 5, 1971, a picket from Local 157 appeared at the jobsite with a sign which stated: For public information only, Curry Construc- tion Company is inducing Laborer's Local 204 to breach an agreement with Plumbers Local 157 to abide by the decision of the National Joint Board for the Settlement of Jurisdictional Disputes. Local 157, affiliated with the International Associ- ation of Plumbers and Pipefitters. As a result of this picketing, employees of Employer represented by Operating Engineers Local 841 ref- used to cross the picket line and the job was shut down. On April 8, 1971, Employer's attorney sent William J. Cour, chairman of the Joint Board, a telegram stating: Without conceding that the contractor is cov- ered by the 11/19/70 [Joint BoardJ decision, that 5 The picketing ceased on May 7, 1971, 25 days after the Joint Board's request to cease picketing, pursuant to an entry in the Federal District Court for the Southern District of Indiana signed by representatives of Region 25 of the NLRB, Plumbers, and Employer decision awarded the installation of lift station equipment and pressure sewers to Local 157. The balance of the work, namely the unloading of material was left unchanged. The current picket- ing was caused by unloading of material in question by members of Laborer's Local 204. On April 12 Cour, by telegram, requested Schoemann, general president of the Plumbers International, to instruct Local 157 to remove the picket and process any additional work assignment complaint. On April 13, the business manager of Plumbers Local 157 refused Schoemann's request to remove the pickets until Employer agreed to abide by the Joint Board's November 20, 1970, decision. On May 14 Cour informed Employer that the Joint Board had been advised of a jurisdictional dispute involving Plumbers, Laborers, and Operating Engi- neers over the unloading of material at the project and would consider the dispute at its May 27 meeting. Employer responded that it did not concede jurisdic- tion to the Joint Board, that the November 20, 1970, award did not award unloading to Plumbers but stated "in other respects there is no basis to change the contractor's assignment," and that Plumbers had forfeited any right to an award by continuing to picket after the Joint Board's instruction to stop picketing.5 On June 11, 1971, the Joint Board entered an award with respect to the unloading of lift station equipment and cast iron pressure sewers in favor of Plumbers. The unloading work is performed at various places on the jobsite, either near where the pipe will be installed or at the storage yard near Employer's field office.6 When a truck arrives with piping one or two Laborers, either members of a pipelaying crew or cleanup crew, working near the unloading site are assigned to unload the truck. The unloading consists of merely rolling the pipe off the side of the truck; fittings are handed down or thrown to the ground. The amount of time involved in unloading is for the most part minimal, although on occasion it may take as long as 1 hour. B. The Work in Dispute The work in dispute involves the unloading of all piping in connection with forced sewer mains and lift stations. C. Contentions of the Parties Plumbers, in 191 NLRB No. 25, contended that Operating Engineers should be a party to the proceeding on the ground that the collective-bargain- 6 At the time of the hearing , although the project had begun, no forced main lift station piping or equipment installation work had yet been performed 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing agreement between Operating Engineers and Employer made Employer a party to the Joint Board proceeding and that therefore Employer was bound by the Joint Board award and the Board should rule that an employer is bound when competing unions are bound by the national agreement. Presumably Plumbers contention is the same herein since it notified the Board that it relies on its brief filed in 191 NLRB No. 25. In support of its claim Plumbers would therefore rely on the Joint Board decisions of November 20, 1970, and June 11, 1971, which purportedly considered a jurisdictional dispute sub- mitted by Plumbers and involving Plumbers, Labor- ers, and Operating Engineers.? Employer contends, as it did in 191 NLRB No. 25, that the only dispute herein is between Plumbers and Laborers; that it is Laborers who have received the disputed work and that Plumbers want that disputed work; and that, since neither of these Unions nor Employer had agreed on any mode of submission of jurisdictional disputes to the Joint Board, there is no voluntary method of adjustment of dispute in this case that satisfied the requirements of Section 10(k) of the Act. In 191 NLRB No. 25, we did in fact find that Employer and Laborers had not agreed to submit the dispute to the Joint Board. Laborers contends that Plumbers assertion that Operating Engineers is involved in this dispute is without support, that Employer as in L & K Contracting Co.8 made it clear it would not agree to submit the dispute to the Joint Board, that it was of the opinion that unloading was considered in 191 NLRB No. 25 as being encompassed by the term "handling" of pipe, and that the Board should arrive at the same result reached in 191 NLRB No. 25. D. Applicability of the Statute Before the Board may proceed to the 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 and that the parties have not agreed on methods for the voluntary adjustment of the dispute. The record shows that Plumbers picketed the jobsite with a sign stating that the Employer was not abiding by a decision of the Joint Board . On April 13, 1970, Plumbers Local's business manager informed the Plumbers International general president that the picket was present to enforce a Joint Board decision and would be removed when the Employer agreed to follow the Joint Board decision . Based on these undisputed facts, and the entry filed in Civil Cause No. TH 71-C-36 in the Federal District Court for the Southern District of Indiana, there is reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred. As noted previously, Plumbers as in 191 NLRB No. 25 asserts that Employer as well as Operating Engineers, Plumbers, and Laborers were parties to contracts designating the Joint Board as the agency for settlement of jurisdictional disputes. For the reasons fully set forth in 191 NLRB No. 25 we find that the Employer is not bound to the Joint Board procedures with respect to the dispute herein, and that there was no agreement upon a voluntary method of adjustment of this dispute. Accordingly, we find there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred 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 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- bargaining representative for a unit of Employer's employees so that the claims of Laborers and Plumbers are unaffected by this factor. As previously stated, Employer and Laborers are parties to a contract which provides that Laborers shall have jurisdiction over that work which was set forth the Manual of Jurisdiction, adopted during October 1961, by Laborers' International Union of North America. The manual has reference tojurisdic- tional claims, including, in part, all work involving pipelaying of any pipe used for main or side sewers and storm sewers. Plumbers admitted, by way of stipulation, that it is not a party to any collective- bargaining agreement with Employer. Accordingly, we find that the contractual agreement between Laborers and Employer favors Laborers. 2. Company and area practice The record reveals that regardless of the geographi- cal location of a job, the Employer has always assigned the unloading of forced main piping and equipment to Laborers. Within the last 5 years Laborers has worked on nine jobs involving the unloading of forced main piping and equipment. All ' As in 191 NLRB No 25, Operating Engineers has made no claim to N Local 157, United Association of Journeymen and Apprentices of the the disputed work and Plumbers is obviously attempting to involve Plumbing and Pipe Fitting Industry of the United S tates and Canada, Operating Engineers as a party here to support its contention that the AFL-CIO (L & K Contracting Company, Inc), 186 NLRB No. 152 dispute falls within the jurisdiction of the Joint Board PLUMBERS LOCAL 157 545 of these jobs except one were within the geographical jurisdiction of Plumbers Local 157. On each job the unloading was assigned to Laborers. Significantly other than the Joint Board awards which Plumbers presented, it offered no other evidence in the instant case or 191 NLRB No. 25 to support its claim that it is performing or has performed the work in dispute within its own geographical jurisdiction or injurisdic- tion of sister locals. Thus, company, area, and industry practice is in favor supporting an award to members of Laborers. 3. Relative skills, economy, and efficiency of operation There is no showing that unloading requires a degree of skills not possessed by laborers. The record also supports a finding that the skills involved can be acquired in a few minutes and that there is no need for the advanced skills possessed by plumbers. Employer testified that laborers have performed the disputed work in a competent and satisfactory manner with due regard for safety. Moreover, laborers have been an efficient employ- ment force for the Employer. The primary reason for such efficiency with respect to unloading is that laborers are always available to unload trucks regardless of when the trucks arrive (they do not arrive on any fixed schedule). If there is a delay in unloading the trucks, Employer could be faced with an overage charge from the trucking company. The employment of plumbers for unloading of trucks would result in considerable inefficiency since they would have to be called to thejobsite for a period of a few minutes to, at most, an hour. The factors of relative skills and efficiency and economy of opera- tion clearly favor Laborers. 4. The Joint Board award Although, as indicated, supra, we do not consider the Joint Board's award binding on Employer and Laborers, we do consider it a factor in determining the proper assignment of the work in dispute. However, in view of all the circumstances, we are of the opinion that the Joint Board's award should not be given controlling weight. CONCLUSION Having considered all pertinent factors, we con- clude that employees represented by Laborers are entitled to perform the work in dispute. Plumbers has adduced no significant evidence in support of its claim whereas the record demonstrates forcefully that numerous relevant and material factors support the existing performance of the work by Employer's employees represented by Laborers. Accordingly, we shall award the work in dispute to employees of Employer who are represented by Laborers. In making this determination we are awarding the disputed work to employees of the Employer who are represented by Laborers Local 204 but not to that Union or its members. Employer, as it did in 191 NLRB No. 25, requests that the Board make a broad determination proscrib- ing Plumbers from unlawfully attempting to force an assignment in the future of work like that involved in this proceeding. The Employer again points to the fact that Plumbers previously sought to secure work assigned to Laborers in L & K Contracting Co., supra. As we indicated in 191 NLRB No. 25, the work in dispute in L & K was not the same work as that involved herein. The Employer also contends that the current dispute is the second involving the Employer, Laborers, and Plumbers to arise in less than 4 months on the same jobsite. However, it is clear that the dispute herein is nothing more than a continuation of the dispute in 191 NLRB No. 25. Moreover, at the time the dispute herein with respect to unloading arose the Board had not issued its award to the members of Laborers in 191 NLRB No. 25. For these reasons we are of the opinion that the determination herein should include only the present job on which the dispute arose. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following determination of dispute. 1. Employees of Curry Construction Company who are currently represented by Laborers' Interna- tional Union of North America, AFL-CIO, Local Union No. 204, are entitled to perform the work of unloading all piping in connection with forced sewer mains and lift stations at the Local Sanitary Sewer Project, Section A, Areas 1 through 4, located in the city of Terre Haute, Indiana. 2. Plumbers and Steamfitters Local Union No. 157 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Curry Construction Company to assign such disputed work to plumbers represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Plumbers and Steam- fitters Local Union No. 157 of the United Association of Journeymen and Apprentices of the Plumbing and 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pipe Fitting Industry of the United States and Company, by means proscribed in Section 8(b)(4)(D), Canada, AFL-CIO, shall notify the Regional Direc- to assign the disputed work to its members rather than tor for Region 25, in writing, whether or not it will to employees represented by Laborers. refrain from forcing or requiring Curry Construction