Plumbers, Local 58

1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of Plumbers and the Laborers are labor organizations the Plumbing and Pipe Fitting Industry of the within the meaning of Section 2(5) of the Act. United States & Canada, Local No. 58, AFL-CIO and Carrothers Construction Company, Inc. and International Laborers Union of North America, Local Union No. 578, AFL-CIO. Case 27-CD-138 August 23, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Carrother's Construction Com- pany, Inc., herein called Employer, alleging a violation of Section 8(b)(4)(D) of the Act by United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States & Canada, Local No. 58, AFL-CIO, herein called Plumbers. Pursuant to a notice, a hearing was held on April 17, 1972, in Colorado Springs, Colorado, before Hearing Officer Allison C. Nutt. The Employer, the Plumbers, and International Laborers Union of North America, Local Union No. 578, AFL-CIO,' herein called Laborers, appeared at the hearing and were all afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. 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. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the basis of the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANY The parties stipulated, and we find, that the Employer is a Kansas corporation presently engaged in constructing an addition to the municipal sewage plant at Colorado Springs, Colorado.2 II. THE LABOR ORGANIZATIONS The parties stipulated, and we find, that the II. THE DISPUTE A. Background and Facts of the Dispute The Employer, as general contractor, has a contract with the city of Colorado Springs , Colorado, to install additional facilities at the municipal sewage disposal plant within the city. The contract calls for construction and installation of tanks and settling basins which will be connected to existing facilities and interconnected by underground piping of cast iron, steel, or virtified clay. Installation of the underground piping is the work in dispute here. The Employer, which has collective-bargaining agreements with Laborers and four other AFL-CIO building trade unions, but not with Plumbers, in accordance with its usual practice, assigned the pipelaying work to its employees represented by Laborers.3 Thereafter, from January 12, 1972, the Plumbers picketed the project with signs stating that the Employer was paying substandard wages. All crafts except Laborers refused to cross the picket line and the project was delayed. The parties stipulated that there is no agreed-upon method for settling jurisdictional disputes by which all parties are bound and that there are no outstand- ing Board certifications which apply to any of the work involved herein . There is no contention that either Union is unable to supply qualified men to perform the work in dispute. B. The Work in Dispute As noted above, this dispute concerns the assign- ment of the work involved in the installation of the yard piping for the additional facilities being con- structed at the municipal sewage disposal plant within the city of Colorado Springs, Colorado. C. Contentions of the Parties Two briefs were filed in this case, one in behalf of the Employer and Laborers and one in behalf of Respondent. In all respects the Laborers position coincides with that of the Employer. The Employer assigned the work in dispute to employees represented by the Laborers and favors that assignment rather than one to members of the Plumbers. To support this position it introduced evidence that its past practice and that of the area,4 I The Laborers was allowed to intervene at the heanng since it claims the work in dispute 2 During its most recent fiscal year the Employer performed services outside of the State of Kansas valued at more than $50,000 and received goods which came to it directly from other States valued at more than $50,000. 3 Work on the project began in September 1971 and will not be completed until about July 1973 4 At the hearing and in their brief the Employer and Laborers argued that the Board should determine this dispute with respect to the entire state 198 NLRB No. 145 PLUMBERS, LOCAL 58 1033 plus the factors of efficiency and economy, favor assignment of the disputed work to laborers. The Employer also contends that the disputed work is covered by the jurisdictional section of its collective- bargaining agreement with Laborers, which favors its assignment since it has no such agreement with Plumbers. Finally it contends that skill is not a factor here because the piping involved is prefabricated, requiring no fabrication of pipe on the job which would necessitate skills not possessed by laborers. The Plumbers has two basic contentions. First it contends that there is insufficient evidence in the record of this case to establish reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated, and accordingly it has moved, in its brief, to quash the notice of hearing and dismiss the com- plaint against it. Second, it argues, in the alternative, that on the merits employees represented by Plumb- ers should be awarded the disputed work because factors such as skill and past practice in the area favor such an award. D. Applicability of the Statute The charges herein allege a violation of Section 8(b)(4)(D) of the Act. The record shows that on December 29, 1971, Plumbers sent a letter to the Employer demanding it pay the area union wage rate. On January 12, 1972, Plumbers set up a picket at the jobsite informing the public that the Employer was not paying the union rate. Evidence submitted at the hearing shows that none of the trade union employees working on the site, except laborers, would cross the picket and the project thereby suffered some delays. On January 18, 1972, repre- sentatives of Laborers and Plumbers met and George Dragosh, business representative of Plumbers, alleg- edly stated that the picket would remain until plumbers got the disputed work. Although Mr. Dragosh denied making the aforementioned state- ment, we find it unnecessary to resolve this conflict in testimony since the record contains a telegram dated January 21, 1972, from the Plumbers to the Laborers, wherein the existence of a jurisdictional dispute is acknowledged. We find, therefore, 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 under Section 10(k) of the Act.5 of Colorado. To that end they argued the area practice in Colorado as a whole, as well as in Colorado Springs, the situs of the instant dispute For reasons discussed infra we have considered the scope of this dispute as limited to Colorado Springs 3 Because of this finding, Plumbers motion to quash the notice of hearing and dismiss the complaint is hereby denied E.' Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after taking into account the evidence supporting the claims of the parties and balancing all relevant factors.6 We shall set forth below those factors which we find relevant in determining the dispute herein. 1. Employer's assignment It was established in the record that the Employer assigned the disputed work, from the beginning of the project, to employees represented by Laborers and prefers that assignment. Accordingly, consideration of employer assign- ment favors award of the disputed work to laborers. 2. Collective-bargaining agreements The Employer is party to a statewide contract for heavy-highway and engineering construction in Colorado, to which Laborers is also signatory, that covers the work in dispute in its jurisdictional section. The agreement does not require that the disputed work be assigned to laborers but it does include such work as being within the claimed jurisdiction of Laborers. The Employer has no collective-bargaining agree- ments with Plumbers. We thus find that this factor favors awarding the disputed work to laborers. 3. Skill and training Plumbers contends, and the record bears out the fact, that plumbers are highly skilled, with extensive training in their craft, while laborers are generally untrained. However, the record also shows that the work involved in this dispute is relatively uncompli- cated and does not require the degree of skills possessed by plumbers. Thus, the evidence shows the piping herein is prefabricated, requiring only simple coupling accomplished with unsophisticated tools such as wrenches that are easily handled by laborers. We therefore find that considerations of skill and training do not favor either plumbers or laborers, as both possess the necessary ability to perform the particular work involved in the instant dispute. 4. Efficiency and economy of operation The Employer at this time is successfully using 6 N LR B v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S 573; International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402,1410-11 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three laborers to man the crew doing the disputed work. These men perform all the operations involved in the installation of the piping, including trenching, laying the pipe, and backfilling. If plumbers were used for laying the pipe two additional men would have to be hired because the same number of laborers would still be needed for trench preparation and backfilling. Additionally, the record indicates that a composite crew would not be as efficient as the present crew because plumbers would only be doing a single operation and would therefore have to wait around while the trench was dug and then later refilled. Thus the combined effect of using plumbers would be to prolong the job and increase its cost. We find therefore that the factors of efficiency and economy of operation militate in favor of awarding the disputed work to employees represented by Laborers. 5. Employer's past practice The Employer introduced evidence that laborers have been used for practically all of the previous yard piping it has done. Although Plumbers correctly points out that the Employer had not done work in the immediate Colorado Springs area previous to this and another job currently under way, it is using laborers on these two projects. Nevertheless, direct- ing our attention under this section to the Employer's practice and not to the area practice, the record is clear that the Employer generally uses laborers to do this particular work. We thus find that the Employer's past practice, although not a controlling factor, does favor award of the disputed work to laborers. 6. Area practice As to the Colorado Springs area practice, we agree with the Respondent that the evidence is somewhat less than conclusive. Both parties agree that the nature of the work varies as to the degree of difficulty, etc., resulting in the use of plumbers on some occasions and laborers on others. Significant in this regard is evidence submitted by the Employer that on previous expansion projects involving this same treatment plant laborers did the yard piping which was similar to the work in issue on the present expansion. In light of all of the circumstances, we find the practice in the Colorado Springs area favors assign- ment of the disputed work to laborers. 7. Extent of award The parties spent considerable time and gave particular attention to the question of whether the relevant considerations in this case are local, i.e., Colorado Springs area, or statewide. Although some factors with incidental statewide aspects, such as the Colorado collective-bargaining agreement to which the Employer and Laborers are parties, were consid- ered, as indicated, supra, we are of the opinion that the dispute herein is local and should be limited to the work on this job. We hold this opinion particular- ly in view of the absence of any past history of disputes between the parties. CONCLUSION Upon consideration of all pertinent factors in the entire record, we conclude that the work in dispute involves the installation of the yard piping for the additional facilities being constructed at the munici- pal sewage disposal plant within the city of Colorado Springs, Colorado, and such work should be assigned to the employees represented by the Laborers rather than those represented by the Plumbers. We reach the conclusion relying on the Employer's assignment, the collective-bargaining agreement between the Employer and Laborers, the factors of efficiency and economy of operation, and the Employer's past practice. Accordingly, we shall award the disputed work to those employees who are represented by the Labor- ers and not those represented by the Plumbers. Our present determination is limited to the particular dispute which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Carrothers Construction Compa- ny, Inc., Paolo, Kansas, currently represented by International Laborers Union of North America, Local Union No. 578, AFL-CIO, are entitled to perform the work of installing the yard piping on the expansion of the municipal sewage disposal plant in Colorado Springs, Colorado. 2. United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States & Canada, Local No. 58, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Carrothers Construction Company, Inc., to assign the above work to plumbers represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States & Canada, PLUMBERS, LOCAL 58 1035 Local No. 58, AFL-CIO, shall notify the Regional by Section 8(b)(4)(D) of the Act, to assign the work Director for Region 27, in writing, whether or not it in dispute in a manner inconsistent with the above will refrain from forcing or requiring Carrothers determination. Construction Company, Inc., by means proscribed