Plumbers, Local 13

PLUMBERS, LOCAL 13 United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the' United States and Canada, Local 13 and Building Trades Employers Association of Rochester , Inc.,' and its Member Frank DiMino, Inc.' and Laborers International Union of North America, Local 435: Case 3-CD-375 February 18, 1972 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following the filing of charges by BTEA, alleging that Local 13 vi- olated Section 8(b)(4)(D) of the National Labor Rela- tions Act, as amended, by engaging in certain pro- scribed activity with an object of forcing or requiring the assignment of certain work described below to em- ployees represented by Local 13 rather than to em- ployees of the Employer represented by the Laborers. A hearing was held before Hearing Officer Carl B. Newsome on on September 13 and October 13, 1971. All parties' appeared at the hearing and were afforded a full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues.' Intervenor, Local 435, was the only party to file a brief in support of its position. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings made by the Hearing Officer 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: Hereinafter referred to as Local 13 or Plumbers Hereinafter referred to as BTEA Hereinafter referred to as DiMino or Employer Hereinafter referred to as Local 435 or Laborers who was allowed to intervene herein by reason of contract interest Local 435 was permitted to intervene in the proceedings herein on the basis of a collective-bargaining agreement with Frank DiMino, Inc `.The parties stipulated that the Section 10(k) hearing record in Case 3-CD-374 ( Local No 435, Laborers International Union (Building Trades Employers Assn )) involving the same type of work in dispute in the instant case be incorporated in the record herein Accordingly , it is incorporated in and made a part of the record herein See fn 6 I THE BUSINESS OF THE EMPLOYER 471 Frank DiMino, Inc., a member of the excavating and paving division of the Building Trades Employers As- sociation of Rochester, Inc., New York, is an excavat- ing and paving contractor, with its principal office in Rochester, New York. The parties stipulated, and 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 juris- diction herein. II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 435 and Local 13 are labor organizations within the mean- ing of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Controversy The work in dispute involves the installation of a water distribution system, cast iron sanitary sewer sys- tem, and storm sewers at the Long Ridge Plaza Shop- ping Center in Greece, New York, a suburb of Roches- ter, Monroe County, New York. B. Background DiMino, in a prime contract with the owners of Long Ridge Plaza Shopping Center, contracted to perform excavating, paving, curbing, and in connection there- with the installation of appurtenant work' consisting of (1) a water distribution system including the piping, valves, fire hydrants, and other piping and fitting ap- purtenances and (2) the cast iron sanitary sewer system and numerous runs of storm sewers in cast iron pipe. (All of such appurtenant work to be 5 feet outside of the building line.) DiMino, as a member of the excavating and paving division of BTEA, was a party to a current collective- bargaining agreement with Local 435. Under the col- lective-bargaining agreement the work in dispute is as- signed to laborers.' This contract does not provide for settlement of jurisdictional disputes by Joint Board procedures. The Employer, as he had for approximately 20 years, assigned the disputed work to the laborers in the in- stant case upon beginning work under its contract in 1969. Hereinafter referred to as appurtenant work or disputed work Operating Engineers and Teamsters do under existing agreements per- form part of the excavating and grading work not specifically assigned to laborers The Employer did sign an agreement with the Plumbers in 1969, which expired on April 30, 1970, and which it refused to renew However, it did not hire any plumbers from Local 13 during the life of the agreement 195 NLRB No. 99 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 13, after the expiration of its contract with DiMino, made several oral demands to DiMino re- questing the negotiation of a new contract. On or about June 24, 1971, Local 13 by mail requested negotiations. Christopher Farrel, president of Local 13, in several conversations with DiMino informed DiMino that pipelaying outside of 5 feet of the building line was the work of the plumbers. On or about June 28, 1971, Local 13 began picketing the Long Ridge Plaza construction site. DiMino, on the evening of June 28, placed a sign at one of the entrances to the construction site reserving this gate for the employees of the delivery of supplies to DiMino. However, Local 13, while picketing the reserved gate (or entrance), continued to picket other entrances to the construction site. Local 13's picketing ended on or about June 30, 1971.10 C. Contentions of the Parties As to the merits of the dispute, Laborers contends that the evidence abundantly supports the assignment of the work to employees it represents . The Plumbers urged at the hearing that its only purpose in picketing was for the purpose of having DiMino renegotiate his previous contract with the Plumbers." The BTEA took no position as to the assignment, other than requesting an areawide award because of numerous disputes be- tween the Laborers and Plumbers in the area over the work herein involved . The Employer, DiMino, sup- ported the Laborers claim to the work. D. Applicability of the Statute Before the Board may proceed with a determination of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated. We find that the record facts recited above provide reasonable cause to believe that Local 13 sought to induce employees of DiMino and other contractors en- gaged in construction work at the site to engage in work stoppages with an object of forcing or requiring DiMino to assign the disputed work to members of Local 13, rather than to its own employees represented by Laborers Local 435. Thus we find the dispute is properly before the Board pursuant to Section 10(k) of the Act. We further find that the Employer is not a party to the procedures for settlement of jurisdictional '° The signs carried by the Plumbers pickets merely indicated that DiMino did not have a contract with Local 13 Local 13 asserts that this picketing was merely organizational picketing However, in the light of the entire combined record, we conclude that the picketing had for its object the assignment of the disputed work to members of Local 13 rather than to DiMino's employees represented by Local 435 " Under settled Board policy, improper pressure by a union other than the one which has been assigned the work is not necessarily a prerequisite to the existence of a Section 10(k) dispute Pulitzer Publishing Company, 187 NLRB No 35, National Press Incorporated, 186 NLRB No 26 disputes of the National Joint Board or any other voluntary method of settlement; therefore, this matter is within the Board's jurisdiction to hear and deter- mine. 12 E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors." 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board as the collective-bar- gaining representative for a unit of the Employer's em- ployees, so that the claims of both the Laborers and the Plumbers are unaffected by this factor. However, DiMino and Laborers are parties to a con- tractual arrangement under which the type of work in dispute has been assigned to the Laborers. Plumbers have never been assigned this type of work by DiMino and was not a party to any collective-bargaining agree- ment with DiMino at the time the dispute arose. Ac- cordingly, we find that the contractual arrangement between the Laborers and the Employer favors the La- borers. 2. Company and area practice14 The record reveals that the Employer has for a period of approximately 20 years assigned the type of work now in dispute to laborers. Numerous other em- ployers in the area also testified that they have assigned laborers exclusively to perform this type of work. How- ever, other employers testified that they use plumbers to do this type of work. Thus, while the Employer's practice is in favor of supporting an award to the labor- ers, area practice in this regard is inconclusive. 3. Relative skills and ecomony and efficiency of operation There is no showing that the tools utilized in per- forming the work in dispute, and other requirements in performing such work, require a degree of skills not possessed by the laborers. As to economy and efficiency of operation, the record shows that this differs among employers and specific jobs. While there was some tes- timony by employers using laborers that they could do the work more economically by using laborers rather " NL R B v Plasterers 'Local 79 [Southwestern Construction Co.]. 404 U S 116 " J A Jones Construction Company, 135 NLRB 1402, NL R B v Radio & Television Broadcast Engineers Union, Local 1212 (CBS), 364 U S 573 14 As previously noted herein , the Employer was not a party to any agreement to be bound by Joint Board decisions PLUMBERS , LOCAL 13 473 than plumbers such testimony was inconclusive. Ac- cordingly, while areawide practice as to skill and economy and efficiency would not favor either the la- borers or the plumbers, DiMino's operations, experi- ence, and preferences would clearly favor the laborers. 4. The National Joint Board award The record discloses that the Joint Board has previ- ously awarded work of the type involved in the dispute herein to the plumbers." However, while we do con- sider the award a factor in determining the proper as- signment of the work in dispute, we do not consider, in view of all the circumstances, that the Joint Board's award should be given controlling weight. Conclusion Having considered all the pertinent factors, we con- clude that employees represented by Laborers are enti- tled to perform the work in dispute. Plumbers has ad- duced no significant evidence in support of its claim, whereas the record demonstrates that numerous rele- vant and material factors support the performance of the work by Employer's employees represented by La- borers. In reaching this conclusion we have placed weight upon the longtime relationship and work ar- rangement between the Employer and the Laborers, the demonstrated efficiency of operation the Employer has shown by using laborers for the type of work in dispute, the Employer's original assignment, and the apparent desire to adhere to that assignment. Accord- ingly, we shall award the work in dispute to employees of Employer who are represented by Laborers. In mak- ing this determination, we are awarding the contro- verted work to Employer's employees represented by Laborers and not to Laborers. This determination is limited to this controversy only.16 " As previously noted herein, the Employer was not a party to any agreement to be bound by Joint Board decisions 16 BTEA urges that an areawide award be made because of the frequent 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, the National Labor Relations Board hereby makes the following Determination of Dispute: Employees of the Employer represented by Laborers International Union of North America, Local 435, are entitled to perform the work of laying piping for a water distribution system and other piping and fitting appurtenances, and the cast iron piping for sanitary sewers and storm sewers from the property line to not less than 5 feet from the building line at the Long Ridge Plaza Shopping Center in Greece, New York. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 13, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Frank DiMino, Inc., to assign the pipelaying work as described above to employees repre- sented by Local 13. Within 10 days from the date of the Decision and Determination of Dispute, United Association of Jour- neymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Lo- cal 13, shall notify the Regional Director for Region 3, in writing, whether or not it will refrain from forcing or requiring DiMino, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by Local 13, rather than to employees employed by DiMino, Inc., who are represented by Laborers International Union of North America, Local 435. disputes arising over the work herein involved However, since it is clear disputes involving this type of work must be determined by the peculiar facts of each case, in our opinion, the record will not support an order of such scope We shall, therefore, limit our award to the jobsite where the instant dispute arose Plasterers Local Union No 79, Operative Plasterers and Ce- ment Masons, International Association of Houston, Texas (Southwestern Construction Company), 167 NLRB 185, Cement Masons' Local Union No. 524 (The Penker Construction Company), 163 NLRB 609, Laborers'Inter- national Union of North America Local 935, AFL-CIO (Interstate Drywall, Inc), 191 NLRB No 93