Plumbers and Pipefitters Local 149

PLUMBERS AND PIPEFITTERS LOCAL 149 223 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Local Union 149 and H.E. Freitag, Inc. Case 14-CD-422 November 10, 1972 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed on April 7, 1972,1 by H. E. Freitag, Inc. (herein called the Employer), alleging that United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Local Union 149 (herein called the Plumbers or Respondent), had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the assignment of certain work described below to employees represented by the Plumbers rather than to employees represented by Laborers' International Union of North America, AFL-CIO, Local Union 171 (herein called the Laborers). A hearing was held before Hearing Officer Neil E. McDarby on May 11. The Employer and the Laborers appeared at, and participated in, the hearing. The Plumbers did not enter an appearance or otherwise participate in the hearing, although duly served with a copy of the Board's notice of hearing. All parties in attendance at the hearing were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. Following the hearing, none of the parties filed briefs. 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 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: I. THE BUSINESS OF THE EMPLOYER At the hearing it was stipulated that H. E. Freitag, i Unless otherwise noted, all dates herein are in 1972. 2 Richard Walden, Laborers business manager, testified that on or about February 22 at the prejob conference, when informed that the Employer was going to perform the installation of the water and sanitary sewer lines, Costagna stated: First of all we are going to lay the claim. The Plumbers are laying the Inc., an Illinois corporation with its principal office and place of business located at Jacksonville, Illinois, is a general contractor engaged in excavation, demolition, and laying and installation of water and sewer lines. During the last 12 months Freitag purchased materials valued in excess of $50,000 from suppliers located outside the State of Illinois, which materials were shipped directly to its construction sites located at points within the State of Illinois. We find, accordingly, that the Employer is engaged in a business affecting 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 jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS At the hearing it was stipulated, and we find, that the Plumbers and the Laborers are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer is engaged in the business of excavation, demolition, and laying and installation of water and sewer lines. In the course of its business the Employer accepted a subcontract from Paul Piper Construction Company, Inc., to perform the installation of sanitary sewers, water mains, storm sewers, and site grading at Federal housing projects in Mattoon, Illinois. On February 22, a prejob conference was held at the Mattoon housing projects. The basic trade unions whose employees might be employed on the project were represented. At the conference, Mike Costagna, Plumbers assistant business agent, inquired as to who was to perform the laying of water mains and sanitary sewers. Upon being informed that the work was to be performed by the Employer, Costagna stated to Leslie Ankrom, the Employer's president, "I'll not furnish you any men." 2 Later, during the week of March 20, Costagna told Ankrom in a telephone conversation that there would have to be a meeting between them to arrive at a decision as to who was to perform the work. When Ankrom stated that the work had been assigned to the Laborers and was in progress, Costagna told Ankrom that there would be a picket line at the jobsite. On or about March 22, the project was picketed by the Plumbers with signs that bore the following claim to the laying of all storm sewers, all sanitary sewers and all water mains on this project. If we do not get this work , the laying of the water mains, the storm sewers and the sanitary sewers, then the man [Ideal Heating and Plumbing Company ] that's doing the plumbing on the job will not get any plumbers. 200 NLRB No. 24 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD legend: "H.E. Freitag, Inc. Has No Contract With The Plumbers Local Union 149." Following the commencement of the picketing, Costagna asked Ankrom in a telephone conversation if he would meet with him. Costagna received a negative reply. Costagna then stated that the picket line-would stay up and that there would be a work stoppage. B. The Work in Dispute The disputed work involved is the manual labor in unloading and distributing materials for sewage and water lines and laying storm and sanitary sewers and water mains at the Federal housing projects located at Ninth Street and Rudy Avenue and at Prairie Street and First Street in Mattoon, Illinois. C. The Contentions of the Parties The Employer's position is that its employees represented by the Laborers have always, with infrequent exceptions in the past, unloaded and distributed materials for sewage and water lines and laid storm and sanitary sewers and water mains. The Laborers contends that the work has historically been assigned to its members and that it continues to claim the work on behalf of its members. The Plumbers has made no statement of position. D. Applicability of the Statute Before the Board may proceed with 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. As previously indicated, a prejob conference was held at Federal housing projects in Mattoon, Illinois, and was attended by all the basic trade unions that might have employees on the project. The Plumbers assistant business agent, Mike Costagna, inquired as to who was to perform the laying of water mains and sanitary sewers. Upon being informed it was to be performed by the Employer, Costagna stated to Ankrom, the Employer's president: "I'll not furnish you any men." During the week of March 20, Costagna stated in a telephone conversation that he would have to have a meeting with Ankrom to arrive at a decision as to who was to perform the work. Ankrom stated the work had been assigned to the Laborers. Costagna told Ankrom that there would be a picket line at the jobsite. On or about March 22, the project was picketed by the Plumbers with signs that bore the following 3 There is no evidence that the parties have agreed to be bound by any voluntary method for adjusting such dispute. 4 International Association of Machinists, Lodge No 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402. legend: "H.E. Freitag, Inc. Has No Contract With the Plumbers Local Union 149." Within a few days following the commencement of the picketing, Costagna asked Ankrom, in a telephone conversa- tion, if he would meet him. Ankrom replied in the negative. Costagna then stated that the picket line would stay up and there would be a work stoppage. On the basis of the entire record, we conclude 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.3 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. The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case 4 1. The collective-bargaining agreements The Employer is party to collective-bargaining agreements with the Laborers5 which arguably cover the work in dispute. The Employer has no collective- bargaining agreements with the Plumbers. 2. Company and area practices The record indicates that it has been the Employ- er's practice to assign the disputed work to the Laborers. The record further indicates that it has been the area practice for employees represented by the Laborers to do similar work; namely, to unload and distribute materials for sewage and water lines and lay storm and sanitary sewers and water mains. 3. Relative skills, economy, and efficiency of operation The record indicates that the Employer considered the use of laborers more efficient and economical, since every laborer who works on a job is a production man able to perform numerous functions. It is also the Employer's position that the skills of the laborers are satisfactory, and their use results in considerable savings being passed on to the consum- er. 5 The record indicates two collective-bargaining agreements: one effective from April 1, 1970, to March 31, 1972, and the other effective from April 1 , 1970, to March 31, 1973. PLUMBERS AND PIPEFITTERS LOCAL 149 225 Conclusion Having considered all pertinent factors, we con- clude that the factors, including the collective-bar- gaining agreements presently in existence between the Employer and the Laborers, company practice, and efficiency of operation, favor awarding the work to the employees represented by the Laborers, and we shall determine that they are entitled to perform the work in dispute. Accordingly, on the basis of the entire record, we shall determine the existing jurisdic- tional controversy by awarding to the employees represented by the Laborers, rather than to individu- als represented by the Plumbers, the manual labor involved in unloading and distributing materials for sewage and water lines and laying storm and sanitary sewers and water mains at the housing projects located at 9th Street and Rudy Avenue and at Prairie Street and First Street in Mattoon, Illinois. In making this determination, we are assigning the work to employees who are represented by Local 171, Laborers, and not to that Union or its members. Our present determination is limited to the particular dispute which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and upon 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 of H. E. Freitag, Inc., who are currently represented by Local 171, Laborers' Inter- national Union of North America, AFL-CIO, are entitled to perform the manual labor involved in unloading and distributing materials for sewage and water lines and laying storm and sanitary sewers and water mains at the housing projects located at 9th Street and Rudy Avenue and at Prairie Street and First Street in Mattoon, Illinois. 2. United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Local Union 149, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require H. E. Freitag, Inc., to assign such disputed work to individuals 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 Pipefitting Industry of the United States and Cana- da, AFL-CIO, Local Union 149, shall notify the Regional Director for Region 14, in writing, whether or not it will refrain from forcing or requiring H. E. Freitag, Inc., by means proscribed in Section 8(b)(4)(D), to assign the disputed work to its members rather than to employees represented by the Laborers.