Laborers' International Union, Local 43

526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers' International Union of North America, Lo- cal No. 43, AFL-CIO and John M. Gerber Plumb- ing & Heating Co. and Cedar Rapids Local No. 125 of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada , AFL-CIO. Case 18-CD-127 February 22, 1972 DECISION AND DETERMINATION OF DISPUTE Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATIONS The parties stipulated, and we find, that Laborers' International Union of North America, Local No. 43, AFL-CIO, and Cedar Rapids Local No. 125 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, are labor organizations within the meaning of Section 2 (5) of the Act. 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 charges filed by John M. Gerber Plumbing & Heating Co. (herein referred to as the Employer) on June 14, 1971, alleging that Laborers' International Union of North America, Local No. 43, AFL-CIO (herein re- ferred to as Local 43 or Laborers), has violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the as- signment of certain work described below to employees represented by Local 43 rather than to members of Cedar Rapids Local No. 125 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (herein referred to as Local 125 or Plum- bers). A hearing was held before Hearing Officer James T. Hansing on August 30 through August 31, 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. Local 43 and Local 125 filed briefs. 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, including the briefs, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER John M. Gerber Plumbing & Heating Co. is an in- dividual business engaged in plumbing and heating contracting in Cedar Rapids, Iowa, and vicinity. Dur- ing the past year the Employer's gross revenues ex- ceeded $50,000, and its purchases of goods originating outside the State of Iowa exceeded $50,000. Accord- ingly, we find that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the 195 NLRB No. 103 III. THE DISPUTE A. The Work in Dispute The parties agreed at the hearing, and we find, that the disputed work involves the installation and repair of new and existing water and sewer services in the street and from the street to the house. The specific work tasks involved include: assisting the operating engineer in excavating the ditch by breaking up any pavement and searching for underground cables; level- ing the bottom of the ditch with a shovel in preparation for laying the pipe; laying the pipe and making the connection to the main in the street ; assisting the oper- ating engineer in closing the ditch; and performing a certain amount of yard and clean-up work. B. Background Prior to December of 1970, the Employer's practice was to hire a member of Laborers to assist the operating engineer in laying water and sewer services from the street to the house. However, at that time the Plumbers filed a grievance against the Employer alleging that it had violated its collective agreement with Local 125 in assigning plumbers' work to a member of the Laborers. The joint arbitration board, set up by agreement be- tween Local 125 and the employer association to hear such disputes, concluded that the Employer was in violation of the agreement. Thereafter, on April 23, 1971, the Employer laid off Engledow, a member of the Laborers, and replaced him with a member of the Plumbers. On May 24, 1971, Business Representative Hoover Hubbard of the Laborers sent a letter to the Employer stating, among other things, that the work performed by Engledow belonged to the Laborers and if the Em- ployer did not rehire Engledow or a member of the Laborers to perform the disputed work Local 43 "will be forced to use any other legal remedy, including pick- eting that may be necessary." LABORERS' INTERNATIONAL UNION, LOCAL 43 527 C. Applicability of the Statute Before the Board may proceed with a determination of the dispute pursuant to 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. We find the letter sent by Local 43 to the Employer, referred to above, threatened the Employer with pick- eting with an object of forcing or requiring it to assign the disputed work to members of the Laborers rather than to members of the Plumbers . Thus, we find rea- sonable cause to believe Section 8 (b)(4)(D) has been violated and that the dispute is properly before the Board for determination pursuant to Section 10(k) of the Act. D. Contention of the Parties Laborers contends that the disputed work should be assigned to it because the work tasks involved are gen- erally viewed as laborers' work; Laborers has a contract with the Employer which covers this work ; area and company practice, until recently, was to use laborers in performing this work; the Employer can operate his business more efficiently by using laborers ; and, in prior Board decisions, similar work has been assigned to the Laborers. Employer's position is that, for reasons of efficiency, he would prefer to use laborers in performing the work. Plumbers contends that the Employer has assigned, and the current area practice is to assign , the disputed work to its members; some of the work in dispute re- quires certain skills which a plumber is specially trained to perform ; and Local 125 has a contract with the Employer covering this work and has received an arbitrator's award for the work.' ' Plumbers also contends that the work should be awarded to it because a Cedar Rapids ordinance purportedly requires that all "plumbing " be per- formed by a licensed plumber, and the disputed work is plumbing Uncon- troverted testimony on the record indicates, however, that the municipal court, in one recent case prosecuted against the Employer's laborer under that section, ruled that the ordinance was unenforceable since it adopted by reference a definition in the state code without reprinting the definition therein contained , subsequently, the city was temporarily enjoined by the county district court from further prosecuting under that provision Assuming , arguendo, that the ordinance is enforceable, it would not affect our decision as to which group is entitled to the disputed work As the Board said in a prior case where a similar argument was urged "[W]e are not called upon to construe or enforce local ordinances in proceedings under Section 10(k), and whatever the ultimate intendment of such regulations may be, they cannot preempt the Board's authority and responsibility to rest its decision upon all the pertinent facts before it " Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Arthur Venneri Company), 145 NLRB 1580, 1597 E. Merits of the Dispute 1. Certification and bargaining agreements Neither union contends that it has been certified by the Board to perform the work in dispute. The Employer is a signatory to an agreement be- tween the Cedar Rapids Association of Plumbing Con- tractors and Local 125 and has verbally agreed to com- ply with the terms Local 43 has negotiated with Allied Construction Interests, Inc. Both agreements contain language which could cover the work in dispute. Plumbers contends that its contractual claim is ex- clusive, while that of the Laborers is not, since the Laborers claim is qualified by a reference in its contract to an early decision made by a national referee of the Building and Construction Trades Department, Hut- cheson, to the effect that the work involved in laying lateral sewer pipe from the main sewer to the dwelling is to be performed by the plumbers , or performed under the supervision of a plumber.2 However, we do not interpret this reference to the Hutcheson decision in the Laborers agreement as a concession by them of any of the disputed work to the Plumbers.' Both the relevant language of the Laborers agreement and the Hutcheson decision itself provide for the alternative of having the disputed work performed under the supervision of a plumber. Thus, we interpret the reference to the Hut- cheson decision as conceding only that the Employer may assign the supervision of the disputed work to the plumbers to the extent that that is required by the Hutcheson decision but that Laborers therein broadly claims the performance of the disputed work. The Joint Arbitration Board, set up jointly by the Plumbing Contractor's Association and the Plumbers to interpret their agreement, decided that the Employer was required by that agreement to hire an apprentice plumber to do the work in dispute . However, as Local 43 was not a party to that proceeding , it is not control- ling herein. In our view , the Employer's agreements with both unions arguably provide for coverage of the work in dispute and, therefore, neither can be a signifi- cant factor in our decision as to which group is entitled to the work.4 3 The relevant portion of the Laborers agreement provides in the "Juris- dictional claims" section "Laying of lateral sewer pipe from main sewer or side sewer to building or structure except that employer may direct that this work be done under proper supervision (Referee Hutcheson 's decision) " ' Cf Local S, supra, 1590-95, where the Board traced the history of the dispute between the Plumbers and Laborers over this kind of work and noted the 1941 agreement between the two unions , the subsequent clarifica- tions thereto, and the many conflicting arbitrators ' and referees' decisions interpreting the agreement, including the Hutcheson decision , the Board concluded that this checkered history of litigation indicates that the parties had never come to an amicable or definitive resolution of their long -standing dispute over work of this kind New York Mailers ' Union No 6, International Typographical Union, AFL-CIO (The New York Times Company), 137 NLRB 665, 669 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Past practice THE Employer has been in the heating and plumb- ing business for nearly 16 years and, up until April of 1971, had always-with the exception of one project in mid-1970-assigned a laborer to perform the disputed work. Other contractors in the area doing similar work testified that, prior to 1970, they had also assigned the disputed work to laborers for as long as they had been in business. Thus, we find that there has been a long- established practice in the area and by the Employer of assigning the disputed work to laborers. It is uncontroverted that the reason this practice changed recently was a campaign commenced by the Plumbers to obtain the work for its members and not for any reason relating to a change in the work tasks or the continued ability of the laborers to perform the work. Under these circumstances, we find that past practice weighs in favor of awarding the work to the laborers. 3. Skills and efficiency There is no showing that the disputed work requires a degree of skill not possessed by the laborers. The Employer and other contractors who have used labor- ers to perform this work in the past all testified that laborers have the necessary skills to perform the work satisfactorily. Gerber further testified, and his testimony was sup- ported by that of other contractors in the area, that he could run his business more efficiently by using laborers to perform the disputed work. He gave as reasons the fact that laborers are paid less; he has never had trouble getting a laborer, while Local 125 has not always been able promptly to supply him with a plumber, forcing him more than once temporarily to shut down his oper- ation; and laborers appreciate the work more and as a result perform better than plumbers, who dislike get- ting in the ditch. It seems clear that the work does not require the skills possessed by those in the plumbers' craft. These factors clearly favor laborers. CONCLUSIONS Having considered all pertinent factors, we conclude that employees represented by the Laborers are entitled to perform the work in dispute. As indicated above, until recently, the Employer's practice and the practice in the area had been to assign a laborer to perform the disputed work; recent assignments made to the Plum- bers, we have found, were influenced by considerations irrelevant to our determination. Laborers are suffi- ciently skilled to perform the disputed work, whereas the work does not require the skills of plumber crafts- men. Moreover, the Employer has been satisfied with the quality of the laborers' work and their efficiency in performing same. Accordingly, on the basis of the en- tire record, we shall determine the existing jurisdic- tional controversy by awarding to the employees repre- sented by the Laborers, rather than to individuals represented by the Plumbers, the installation and repair of water and sewer services in the street and from the street to the house for the Employer. The present deter- mination is limited to the particular controversy which gave rise to this proceeding. In making this determina- tion, we are assigning the work to the laborers who are represented by Local No. 43 and not to that Union or its members.' DETERMINATION OF THE 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 makes the following Determination of Dispute. Employees represented by Local 43, Laborers' Inter- national Union of North America, AFL-CIO, are enti- tled to perform all work tasks necessary for the installa- tion and repair of water and sewer services in the street and from the street to the house for John M. Gerber Plumbing & Heating Co. CHAIRMAN MILLER, dissenting: I would assign the work to the plumbers. The record shows that the Employer, which is en- gaged in the plumbing and heating business, had a steady complement of at least four plumbers repre- sented by Local 125. The Employer signed a collective- bargaining agreement with Local 125 which clearly and unequivocally provides that the work in dispute, which chiefly involves the laying of pipes, falls under the ex- clusive jurisdiction of the Plumbers. After the Plum- bers grieved the Employer's assignment of the disputed work to a laborer through the agreed-upon arbitration procedure, resulting in a decision to its favor, the Em- ployer recognized his contractual obligation and as- signed a plumber to perform the work. ' Accord, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 122, AFL-CIO (Conduit and Foundation Corp and R A Hamilton Corpo- ration), 190 NLRB No 7, Local 388, United Association ofJour neymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Associated Underground Contractors, Inc), 180 NLRB 456, Local 388, United Association ofJournevmen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Associated Undergiound Contractors, Inc), 175 NLRB 540, Building and Construction Trades Council of Las Vegas and Local 525, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Charles J. Dorfman and Underground Engineering Contractors Association), 173 NLRB 1339 LABORERS' INTERNATIONAL UNION, LOCAL 43 529 Now comes Laborers, which threatens the Employer Laborers contract with the construction industry. In with economic action proscribed by Section 8(b)(4)(D) my view, Laborers claim in these circumstances is not of the Act. For whatever reason , Laborers has chosen sufficiently substantial to warrant our abrogating to base its relations with the Employer on an informal Plumbers written agreement, and I therefore dissent arrangement consisting merely of a verbal promise on from the award made by my colleagues. the part of the Employer to follow the provisions of the