Pipefitters Local 149

994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 149, AFL-CIO (Verne E. Scott d/b/a Verne Scott Drainage) and Laborers International Union of North America, Local 703, AFL-CIO-CLC Laborers International Union of North America, Local 703, AFL-CIO-CLC (Frank J. Strahl & Sons, Inc.) and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 149, AFL-CIO. Cases 38-CD-76 and 3 8-CD-77 August 18, 1972 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Laborers International Union of North America, Local 703, AFL-CIO-CLC, herein called the Laborers, on March 23, 1972, alleging that United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 149, AFL-CIO, herein called the Plumbers, had violated Section 8(b)(4)(D) of the Act, by threatening, coercing, and restraining Verne Scott Drainage, herein called Scott, and Frank J. Strahl & Sons, Inc., herein called Strahl, with an object of forcing Scott and Strahl to assign certain work to employees represented by the Plumbers rather than to employ- ees represented by the Laborers, and charges filed by the Plumbers on April 4, 1972, alleging that the Laborers had violated Section 8(b)(4)(D) of the Act by threatening, coercing, and restraining Scott and Strahl with an object of forcing them to assign certain work to employees represented by the Laborers rather than to employees represented by the Plumbers. Pursuant to notice, a hearing was held before Hearing Officer Stephen S. Shostrom on April 17, 1972. 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. The rulings of the Hearing Officer made at the hearing are free from prejudicial 1 International Brotherhood of Electrical Workers, Local No 349 (Frank Schafer, Inc), 127 NLRB 210, Eau Claire and Vicinity Building and Construction Trades Council (St Bridget's Catholic Congregation, Inc), 122 error and are hereby affirmed. The Plumbers has filed a brief which has been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1. THE BUSINESS OF THE COMPANIES Verne E. Scott d/b/a Verne Scott Drainage is a sole proprietorship engaged in the business of drainage construction. He testified that, during the past year, he received supplies valued at between $40,000 and $50,000 from points outside the State of Illinois. Strahl is an Illinois corporation engaged in the construction industry in and around Champaign, Illinois. During the past year, its volune of business was approximately $2 million and it purchased goods valued in excess of $50,000 from suppliers outside the State of Illinois. We find that both companies are engaged in commerce and that, as Strahl clearly meets the Board's jurisdictional standard for nonretail enter- prises,' it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Laborers and the Plumbers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background Strahl is the plumbing contractor on the Champ- aign County Nursing Home construction project in Urbana, Illinois. On February 16, 1972,2 Strahl subcontracted the installation of the sanitary and storm sewer work on the project to Scott. They did not discuss the question of which craft or class of employees would perform this work. However, Scott had bid for the subcontract on the assumption that he would assign the work to laborers, in accordance with his longstanding practice. He made a written assignment of the work to "the laborers of . . . Local 703" on February 28. Meanwhile, the business agent of the Plumbers, upon being informed by Strahl that the work had been subcontracted to Scott, told Strahl that if plumbers could not do all of the plumbing on the job, they would not do any of it.3 The business agent of the Laborers denied making similar threats to NLRB 1341 2 All dates are 1972 unless otherwise indicated 3 The plumbers were needed for installations inside the building, which 198 NLRB No. 140 PIPEFITTERS LOCAL 149 Strahl . However, in a letter to the Plumbers' International president , dated February 29, Strahl stated that "the plumbing business agent . . . says there will be no plumbers for the job if this tile is laid with laborers and the laborers business agent says there will be no laborers for this project if the plumbers lay the tile." In addition, Scott testified that Laborers' Business Manager Johnson told him that, if plumbers were used, the job would probably be picketed. On March 3, Strahl wrote Scott a letter stating that he had requested, and would abide by, decisions of the state plumbing inspector and of the two Interna- tional Unions concerning the performance of the disputed work, and asking Scott not to do any more sewer work on the project in the meantime. No decision was reached by the International Unions. Scott testified that a state plumbing inspector indicated that the disputed work should be assigned to plumbers, but the testimony is in conflict as to whether the inspector referred to the state licensing law,4 and such law was not introduced into evidence. On March 9, Strahl informed Scott that it could not afford a work stoppage and directed him to hire plumbers to do the disputed work and to notify Strahl that he would do so. On March 16, having received no reply from Scott , Strahl informed him that the subcontract was terminated . On the same day, Strahl asked the Plumbers to furnish employees to lay the sewer pipe . In a letter to the Laborers the next day, Strahl explained that it had been unable to negotiate a compromise or to get the International Unions to settle the dispute. The Laborers later offered to furnish employees for other work on the project if Strahl signed a contract, and did furnish an employee after a contract was signed on March 28. However, the laying of the sewer pipe had not commenced as of the time of the hearing. The national referee of the Building and Construc- tion Trades Department, AFL (now AFL-CIO), ruled in 1945 that the laying of lateral sewer pipe from a main sewer into a dwelling, or from inside the property line to the dwelling, should be done by, or under the supervision of, members of the Plumbers. In 1965 , the Plumbers and the Laborers reaffirmed the validity of this ruling and the 1918 and 1941 agreements on which it was based . There is no evidence that Scott of Strahl ever agreed to abide by the 1945 ruling or the prior and subsequent agree- ments. had to be made by licensed plumbers The dispute is over the installation of lateral sewer lines running from the building to the main sewer line in the street 4 According to Scott, the state plumbing inspector did not discuss the 995 B. The Work in Dispute The dispute is over the installation of lateral sewer lines, running from the building to the main sewer line in the street, on the Champaign County Nursing Home construction project in Urbana, Illinois. C. Contentions of the Parties The Plumbers contends that there is no jurisdic- tional dispute properly before the Board, since the Plumbers has not communicated with Scott in any way and Strahl is now to perform the work and has assigned it only to plumbers. According to the Plumbers, Strahl should be free to make whatever work assignment it desires and should be free from pressure to subcontract work to Scott. On the merits, the Plumbers argues that the 1965 agreement between the two International Unions and the 1945 decision of the national referee awarding the disput- ed work to plumbers are binding. The Laborers argued at the hearing that the agreement between the International Unions had not been observed in this area and that the area practice of using laborers to perform the disputed work should be controlling. It contended that Strahl's cancellation of the subcontract with Scott and assignment of the work to plumbers should be disregarded, since they were the result of coercion by the Plumbers. Scott testified that he considered his contract with Strahl to be still in effect and that he remained ready to perform it. He indicated that he still wished to assign the disputed work to laborers. Strahl did not specifically take a position on the merits of the dispute, but stated that its assignment of the work to plumbers had been based on the state plumbing inspector's indication that the work should be done by plumbers, as well as on the Plumbers' threat. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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 there is no agreed-upon method for the voluntary adjustment of the dispute. As to the latter, while the Plumbers contended at the hearing that it and the Laborers had agreed to the resolution of jurisdictional disputes by the National Joint Board for the Settlement of Jurisdictional Disputes, there is state licensing law, but expressed the view that the Plumbers ' business agent would insist that plumbers be used However, Strahl stated at the hearing that the state plumbing inspector did refer to the state licensing law 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no evidence that Scott or Strahl has agreed to submit jurisdictional disputes to the Joint Board. Similarly, there is no evidence that Scott of Strahl ever agreed to abide by the 1945 ruling by the national referee of the Building and Construction Trades Department awarding the disputed work to plumbers or the prior and subsequent agreements by the International Unions. Accordingly, we find that the parties have not agreed upon a method for the voluntary adjustment of the dispute. We reject the Plumbers' contention that the dispute is not properly before us because Strahl is the employer for work assignment purposes and has assigned the work only to plumbers. As has been indicated above, there is evidence that each Union threatened Strahl that it would not supply anyone to work on the project unless the disputed work was assigned to its members, and that the Laborers threatened Scott that the job would be picketed if plumbers were used. Such threats clearly had an object proscribed by Section 8(b)(4)(D) of the Act. At the time the Plumbers demanded of Strahl that the disputed work be assigned to plumbers, Strahl had subcontracted such work to Scott, who employed laborers. The Plumbers did not object to the subcontracting or demand that the subcontract be terminated, but insisted only that the work in question be performed by plumbers rather than laborers. Strahl terminated the subcontract only when Scott failed to comply with this demand. The dispute was thus essentially over the assignment of work to members of one rather than another trade, craft,5 or class. Accordingly, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors. The Board has held that its determination in jurisdiction- al dispute cases is an act of judgment based on commonsense and experience in balancing various factors.6 A number of the factors often relied on by the Board are of little assistance in determining the dispute herein. Thus, there is no relevant Board certification and, while each Union introduced into evidence a multiemployer contract assigning the laying of sewer pipe to it, there is no evidence that Scott or Strahl is a member of either of the multiemployer associations involved or has signed either of the contracts. The Unions' agreement to follow the ruling of the national referee of the Building and Construction Trades Department, which awarded the disputed work to plumbers, cannot be given controlling weight here, as it is clear that the ruling and agreement were not observed in this area and neither Scott nor Strahl ever agreed to abide by them. We cannot, on this record, view the state plumbing inspector's opinion that the work should be done by plumbers as conclusively favoring the plumbers or precluding an award in favor of the Laborers, since it has not been shown that state law requires that the work be done by plumbers.7 Finally, the fact that Strahl assigned the disputed work to plumbers after canceling the subcontract with Scott cannot be given controlling weight, as such assign- ment was made only after threats by the Plumbers; prior to such threats, Strahl had subcontracted the work to Scott and did not object to Scott's use of laborers. There remain the factors of area practice and skills. It is clear that area practice favors laborers. Scott testified that, during his 20 years in the drainage business, he had always used laborers to lay drainage tile. Several other contractors gave similar testimony. The testimony is in conflict with respect to Strahl's practice. The Plumbers' business agent testified that Strahl had never assigned the laying of sewer pipe to anyone but plumbers, whereas the Laborers' business agent testified that Strahl used laborers in the majority of cases. Strahl's president, although called as a witness by the Laborers, was not asked about his company's practice. Several contractors testified that they used laborers to lay sewer pipe because they perform that work better than plumbers do, especially under adverse conditions. They stated that laborers have greater experience, and plumbers prefer to work inside buildings rather than in the ditches in which sewer pipe must be laid. Thus, the superior skills of laborers favor an award to employees represented by the Laborers. CONCLUSIONS Upon consideration of all relevant factors, we conclude that the work in dispute should be awarded to employees represented by the Laborers. This award is in accordance with the overwhelming area practice and is supported by laborers' superior performance of the work in question. The factors which support a contrary result do not, under the circumstances of this case, outweigh these considera- tions. Accordingly, we shall determine the dispute by awarding the disputed work to employees represent- 5 United Brotherhood of Carpenters and Joiners of America, Local 581 (Ora 7 Cf Local 5, United Association of Journeymen and Apprentices of the Collard), 98 NLRB 346,349 Plumbing and Pipe Fitting Industry of the United States and Canada, 6 International Association of Machinists, Lodge No 1743, AFL-CIO (J AFL-CIO (Arthur Venneri Co ), 145 NLRB 1580, 1597. A Jones Construction Co), 135 NLRB 1402, 1411 PIPEFITI'ERS LOCAL 149 997 ed by the Laborers . In making this award, we are assigning the work to employees represented by the Laborers, but not to the Laborers or its members.8 Our present determination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: 1. Employees represented by Laborers Interna- tional Union of North America, Local 703, AFL-CIO-CLC, are entitled to perform the work of installing lateral sewer lines running from the buidling to the main sewer line in the street on the Champaign County Nursing Home construction project in Urbana, Illinois. 2. United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 149, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Frank J. Strahl & Sons, Inc., to assign the above work to employees represented by the Plumbers. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Cana- da, Local Union 149, AFL-CIO, shall notify the Officer-in-Charge for Subregion 38, in writing, whether or not it will refrain from forcing or requiring Frank J. Strahl & Sons, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute in a manner inconsistent with the above determination. 8 This award is not to be construed as passing upon the status of Strahl's subcontract with Scott See Ora Collare4 supra, fn 4 at 350.