Plumbers, Local 98

356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 98, AFL-CIO' and Joba Construction Co., Inc. and Local Union No. 1191, Laborers' International Union of North America, AFL-CIO. Case 7-CD-272 September 28, 1972 sites and facilities in the State of Michigan goods and materials valued in excess of $50,000 which were transported to Michigan jobsites and facilities directly from sources outside the State of Michigan. We find that Joba Construction Co., Inc., is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS 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 Joba Construction Co., Inc., herein called Employer, alleging that United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 98, AFL-CIO, herein called Plumbers, 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 cer- tain work to plumbers rather than to employees repre- sented by Laborers' International Union of North America, AFL-CIO, Local Union No. 1191, herein called Laborers. Pursuant to notice, a hearing was held before Hearing Officer Marc M. Pekay on June 12, 13, and 14, 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. Thereafter, briefs were filed by Employer, Plumbers, and Laborers. 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 of the Hear- ing 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 case and hereby makes the following findings: I. THE BUSINESS OF THE EMPLOYER Joba Construction Co., Inc., a Michigan corpo- ration with its principal offices in Southgate, Michi- gan, is engaged in excavating work, including the un- loading and laying of prestressed concrete cylindrical pipe. During the past year, it has received at its job- 1 The name of the Union appears as amended at the hearing. If. 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 The dispute involves the unloading and laying of prestressed concrete cylindrical pipe on the return sludge section of a pollution control facility being built by the Detroit Metropolitan Water Board at 9300 West Jefferson, in Detroit, Michigan. In January 1970 C & C Bohrer, Inc., hereinafter Bohrer, a general contractor on the project, subcontracted contracts numbered PC 233 and PC 254 to the Employer. Those contracts called for performance of the work de- scribed above on the return sludge section and similar work on other sections of the project, as well as the excavation of ditches in preparation for such work. Employer is a party to a collective-bargaining agreement with Laborers.2 In accordance with the provisions of the collective-bargaining contract Em- ployer assigned the work covered by PC 233 and 254 to the Laborers.3 Bohrer is a party to a collective-bargaining agree- ment with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Indus- try of the United States and Canada, herein called U.A. Plumbers is not a party to any contract with Bohrer or Employer. From January 1970 through January 1972, Em- ployer used laborers to excavate ditches and to unload and lay prestressed concrete cylindrical pipe at the jobsite. In late January or early February 1972, Plumbers established a picket line at the facility with 2 The agreement, effective October 1 , 1970, expires on September 1, 1973. 3 Art XIX, par 1, of the collective-bargaining agreement states that: This Agreement shall govern all open cut construction work which any Contractor performs in the State of Michigan and which comes within the jurisdiction of the Union. Open cut construction work shall be construed to mean work which requires the excavation of earth including industrial, commercial and residential building site excavation and preparation, land balancing, grading, paving, sewers, utilities and improvements, retention, oxidation and flocculation facilities, and also including but not linuted to underground piping, conduits, and all work incidental thereto and general excavation. 199 NLRB No. 57 PLUMBERS, LOCAL 98 357 signs which stated, "Joba not paying fringes and wag- es to Plumbers 98." These were later removed and replaced by signs reading, "C & C Bohrer in violation of U.A. agreement." The picketing had the effect of stopping work at the jobsite until on or about Feb- ruary 9, 1972. On that date Plumbers met with Bohrer. It was agreed at that meeting, attended by Robert O'Keefe and Richard Wiseman, vice presidents of Bohrer, Mr. Domas, the International representative of Plumbers, and Mike Walker, business agent for Plumbers, that Bohrer would assign the installation of pipe on the return sludge section to the Plumbers. Employer was not present at the meeting and was not a party to the agreement. The first pipe for the return sludge section ar- rived on or about May 4, 1972. Employer was called by Bohrer's project manager, Graham, and told not to unload the pipe with laborers . Employer's president, Wyke, and Employer's vice president and general su- perintendent, Drozdowski, then held a meeting at the jobsite with Ohanessian, Plumbers steward at the site. They were informed by Ohanessian that if laborers were used to unload and install the return sludge pipe, Plumbers would picket and strike. The following day a meeting was held between the Employer'and busi- ness agents and stewards of both unions. Employer was again told at this meeting by Walker or Ohanes- sian that if laborers were used , Plumbers would have to put up a picket line and strike . The business agent for the Plumbers, Walker, denied making such a threat. Following this meeting the instant charge was filed with the Board. Three loads of pipe destined for the return sludge section arrived on May 16, 17, or 18, whereupon Em- ployer was again told by Graham not to unload with laborers because Plumbers would strike. When labor- ers began unloading the pipe that afternoon , Walker started picketing with a sign which said "C & C Bohr- er in violation of U.A. contract." The following day picketing was continued by the plumbers for approxi- mately 3 hours. Based upon the latter activity the charge was amended on May 19, 1972. A petition for an injunction under Section 10(1) of the National Labor Relations Act was filed in the United States District Court for the Eastern District of Michigan on May 22, 1972. On June 1, 1972, a Stipulation and Order , approved by the court, was entered into whereby Plumbers agreed to refrain from further picketing. At the time of the hearing in the case, work on the return sludge lines had been discon- tinued pending our Decision and Determination of Dispute. B. Work in Dispute The disputed work involves the unloading and laying of prestressed concrete cylindrical pipe on the return sludge section of the pollution control facility described above. The process of unloading and laying pipe, as performed by a crew of five laborers up to the time of the dispute, involves a series of maneuvers. After a large crane helps to move the pipe from a truck onto the ground, digging is performed under the pipe and a sling cable is placed around the pipe. In the meantime the hole where the pipe is to be laid is graded and compacted to the proper grade with slate rockfill. The pipe is then lowered by the crane but guided by the men, who place a rubber gasket into a special groove on the spigot (male) end of the pipe. A beam is then placed across the end of the pipe and connected to the cables of a hand winch in the pipe. The men operating the winch pull the pipe into posi- tion so that the bell (female) and spigot joint interlock while still supported by the crane. A burlap diaper is then placed around the joint and the joint is sealed from inside and outside with a concrete grout. Finally, stone is placed by shovel for backfill and is hand compacted. C. Contentions of the Parties The general contractor, Bohrer, is, as noted above, a signatory to the U.A. national agreement. Plumbers contends that when Bohrer entered into the subcontract with Employer calling for, inter aka, the unloading and laying of prestressed concrete cylindri- cal pipe on the return sludge section of the pollution control facility, and Employer, in turn, assigned the pipelaying work to its employees who are members of Laborers, this was a breach by Bohrer of the national agreement between Bohrer and U.A. It was in an effort to enforce this agreement and to publicize the breach thereof, states Plumbers, that it picketed. The Union further states that it made no demands of Em- ployer to assign the work to members of Plumbers. Thus, it asserts that its argument was with Bohrer and not Employer, that this did not involve competing claims of rival groups of employees for work, and that there is, therefore, no jurisdictional dispute. Employer and Laborers, on the other hand, con- tend that Plumbers actions were clearly directed at forcing the disputed work to be assigned to employees represented by Plumbers. Employer and- Laborers further contend that the contracts (PC 233 and 254) clearly reserve to Employer the right to supply the necessary labor with which to complete its contractual obligations; that Employer's contract with Laborers clearly assigns this type of work to employees repre- sented by Laborers; that Employer' s assignment of the work to employees represented by Laborers is consistent with Employer's past practice, and with an industry norm of more than 15 years; that the assign- 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment made by Employer is more economical than an assignment of the work to employees represented by Plumbers would have been; that employees repre- sented by Laborers possess skill and experience, which employees represented by Plumbers lack, in laying this type of pipe, in grading, in directing the crane, and in grouting; and finally, that neither Em- ployer nor Laborers is subject to any agreement for the voluntary adjustment of this dispute, such as the National Joint Board. D. Applicability of the Statute Before the Board may proceed to the 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 the parties have not agreed on methods for the voluntary adjustment of the dispute. The record shows that in late January or the beginning of February 1972, Plumbers established a picket line with signs directed against Employer's fail- ure to pay wages and benefits to Plumbers. Later this was replaced with signs stating "C & C Bohrer in violation of U.A. contract." This conduct effectively shut down much of the work on the jobsite. While an agreement was reached on February 9, 1972, between Plumbers and Bohrer with regard to the disputed work, Employer was not a party to this agreement. The record further shows that in early May 1972 threats were made by agents of Plumbers to picket and strike if the disputed work was done by employ- ees represented by Laborers. About 2 weeks later, when laborers unloaded pipe destined for the return sludge section, Plumbers struck and temporarily in- terrupted work at the jobsite. While Plumbers contends that its picketing was directed solely against Bohrer's alleged breach of the U.A. contract, we find reasonable cause to believe, under all the circumstances described above, that an object of Plumbers' conduct was to force or require Employer to change the work assignment by hiring employees represented by Plumbers to perform the disputed work, rather than retain laborers. The record shows that the Employer is not a party to an agreed-upon method for the voluntary adjust- ment of jurisdictional disputes. We therefore find that at the time of the instant dispute there did not exist any agreed-upon method for the voluntary adjust- ment of the dispute to which all parties herein were bound. Based on the entire record we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred and that the dis- pute is properly before the Board 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 here- in has been certified by the Board as the collective- bargaining representative for a unit of Employer's employees. As previously noted, Employer and Laborers are parties to a contract which provides that Laborers shall have jurisdiction over opencut construction work. While U.A. and Bohrer are parties to a collec- tive-bargaining agreement, Plumbers is not a party to any collective-bargaining agreement with Bohrer or Employer. We find that the contractual agreement between Laborers and Employer favors award of the disputed work to laborers. 2. Company and industry practice The record indicates that it has been the area practice to have laborers perform opencut construc- tion work of the type in dispute here, with the plum- bers performing work within the curtilage of the building. One of the Respondent's witnesses, a jour- neymen plumber, admitted this customary division when he stated that excavating contractors, including Employer, used laborers in the open field up to 5 feet from the building line, while plumbers perform their work within the building. The record also indicates that for many years it has been Employer's practice in jobs of this type, and in other opencut construction work, to employ only laborers. Thus, Employer's past practice and area practice in the industry are factors supporting an award to employees of Employer represented by La- borers. 3. Relative skills The skills required to perform the disputed work appear to be traditional skills of laborers, including grading the ground to proper density so that the pipe will be securely set, directing the crane operators to lower the pipe, and grouting (sealing) the ends of the pipe. In addition, unlike plumbers who customarily work on cast iron and steel pipe which is lighter than concrete pipe and installed at depths of up to 6 feet, laborers are experienced in installing prestressed con- crete cylindrical pipe at depths of up to 25 feet. Final- ly, the record reveals that if plumbers were used to PLUMBERS, LOCAL 98 359 install the prestressed concrete cylindrical pipe, a composite crew of laborers and plumbers would be required, since plumbers lack the requisite skills to perform the entire installation. Thus, relative skills would favor an award of the disputed work to em- ployees of Employer represented by Laborers. 4. Efficiency and economy of operation The factors of efficiency and economy favor as- signment of the disputed work to employees repre- sented by Laborers. Thus, the record indicates that laborers are able to install 250 to 400 feet of the con- crete pipe per day, while the record indicates that plumbers can install a much smaller amount. A cru- cial factor in the work is the high hourly equipment cost which necessitates Employer's reliance on the speedier laborers. Thus, Employer can perform more economically by assigning the work to employees rep- resented by Laborers. Conclusions On all the evidence, we determine the instant jurisdictional dispute in favor of laborers and find laborers represented by Laborers, rather than the plumbers represented by Local 98, Plumbers, are enti- tled to perform the work of unloading and laying prestressed concrete cylindrical pipe on the return sludge section of the pollution control facility of the Detroit Metropolitan Water Board, 9300 West Jeffer- son, Detroit, Michigan. Company and area practice, the collective-bargaining agreement, efficiency and economy of operation; and the skills involved favor this result. Our present determination to award the work to the employees who are represented by Labor- ers, but not to that Union or its members, 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 upon the basis of the foregoing findings and the entire record in this case, the National Labor Relations Board makes the fol- lowing Determination of Dispute: 1. Employees of Joba Construction Co., Inc., who are currently represented by Laborers' Interna- tional Union of North America, AFL-CIO, Local Un- ion No. 1191, are entitled to perform the work of unloading and laying prestressed concrete cylindrical pipe on the return sludge section of the pollution con- trol facility of the Detroit Metropolitan Water Board, 9300 West Jefferson , Detroit, Michigan. 2. United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 98, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Joba Construction Co., Inc., to assign such disputed work to plumbers represented by the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Can- ada, Local Union No. 98. 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 and Can- ada, Local Union No. 98, AFL-CIO, shall notify the Regional Director for Region 7 in writing , whether or not it will refrain from forcing or requiring Joba Con- struction Co., Inc., by means proscribed in Section 8(b)(4)(D), to assign the disputed work to its members rather than to employees represented by Laborers.