Local 12, Plumbers

LOCAL 12, PLUMBERS Local Union No. 12 of the United Association of Plum- bers and Gas Fitters' and J. F. White Contracting Co., Heavy Construction Division2 and Local 22, Laborers International Union of North America.' Case 1-CD-390 December 6, 1974 DECISION AND DETERMINATION OF DISPUTE 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 Labor Relations Division of Construc- tion Industries of Massachusetts, Inc. (the collective- bargaining association representative of the Employer), alleging that the Plumbers violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed conduct with an object of forcing or requiring the Employer to assign certain work to its members rather than to the Employer's employees represented by the Laborers. A hearing was held before Hearing Officer Robert C. Rosemere on March 25 and April 4, 8, 15, and 29, 1974. The parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues. Thereafter, all parties filed briefs and the Plumbers requested oral argument before the Board.' ° 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 rulings of the Hearing Officer made at the hear- ing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this proceeding, the Board makes the following findings: I Herein called the Plumbers 2 Herein called the Employer 3 Herein called the Laborers 4 Since it appears that the record and the briefs adequately present the positions of the parties the request is hereby denied 5 Plumbers appealed the Hearing Officer's ruling revoking its subpoena duces tecum served on Employer for production of voluminous information through which Plumbers sought to attack validity of Employer's divisional components (Building Division and Heavy Construction Division) Plumbers also appealed the Hearing Officer's refusal to hear testimony from William Cour of National Joint Board for Settlement of Jurisdictional Disputes and from Charles Appley, MBTA engineer The Hearing Officer ruled that the above information was immaterial in view of Laborers withdrawal from any jurisdictional disputes plan before the eruption of the dispute in issue before the National Labor Relations Board The Board, by teletype order dated May 29, 1974, denied the Plumbers appeal I THE BUSINESS OF THE'EMPLOYER 363 The parties stipulated, and we find, that the Em- ployer is a Massachusetts corporation with its principal place of business in Newton, Massachusetts. It is en- gaged • in the construction industry and annually re- ceives in Massachusetts directly' from points outside Massachusetts materials having a value exceeding $50,000. The site of the current dispute is the MBTA (Massachusetts Bay Transportation Au- thority) project at Wellington Circle in Medford, Massachusetts, valued at or about $16 million. The parties 'stipulated, and we find, that the Em- ployer is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert juris- diction in this proceeding. II THE LABOR ORGANIZATION INVOLVED There is no issue as to the status of the Plumbers and Laborers, which we find to be labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. Background and Facts of the Dispute J. F. White Contracting Company was founded in 1924 as a heavy and highway contractor . It engaged in limited building construction from 1957 to 1967, when its building operations were terminated . At all times, however, it continued operation as a heavy and high- way contractor and negotiated all of its labor agree- ments through its association , the Massachusetts Labor Relations Division of the New England Road Builders Association , the predecessor in interest to the Labor Relations Division of Construction Industries of Mas- sachusetts. Its labor agreement with the Laborers Un- ion covering this type of disputed work does not pro- vide the National Joint Board submission. It has no contract with the other Union, the Plumbers. The Plumbers claims that the Employer is bound to the Joint Board based on its alleged membership in As- sociated General Contractors , herein AGC. However, White's AGC membership indicates there is no basis for the Plumbers position . As noted above, White has always been a heavy and highway construction con- tractor and has belonged to a multiemployer associa- tion, other than AGC, representing the heavy and high- way construction industry . Its association has not stipulated to any of the Joint Board procedures. When the Employer activated a building division within its company and started to engage in "building and con- struction," it applied to the association in Massa- chusetts which represented building construction con- tractors, the Associated General Contractors of 215 NLRB No. 64 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Massachusetts. At the same time, it hired a vice presi- dent for building affairs, Donald Mascone, who had been previously employed by another building contrac- tor. It also hired a group of supervisory personnel for- merly employed by building contractors in order to form the nucleus of a building division of J. F. White. Its application for membership in AGC was limited to its "building division." The notices of this application that were sent by AGC to its membership chairman and to its entire membership listed only the "Building Division of J. F. White." The AGC board of directors voted "to accept the application of J. F. White Con- tracting Company, Building Division" for membership and the AGC certificate of membership for J. F. White is for only the "Building Division." The notices which were sent to all AGC members clearly stated that the membership was voted to the White Building Division only. This limited membership is not unique to J. F. White; other national contractors have also limited their membership. AGC of Massachusetts negotiated an agreement covering building work with the Labor- ers Union containing a stipulation to the "new" Joint Board upon its acceptance by the AGC of America. Pursuant to that agreement, AGC of Massachusetts notified its members that it would stipulate all its mem- bers to the Joint Board unless the members individually withdrew authority from AGC to so stipulate. J. F. White was one of the contractors which specifically advised AGC not to stipulate it to the Joint Board. When pressed on this point at an AGC labor policy committee meeting, the White vice president stated the purpose for this refusal to authorize was to avoid being bound to the Joint Board in its Laborers-Plumbers dis- putes which had occurred. The chairman of the AGC labor committee advised the White representative that this would not be a problem as the stipulation would be binding only on the White Building Division and the disputed work in question was never performed by White Building Division. Based on this assurance, White authorized AGC to stipulate the Building Divi- sion only of White to the Joint Board. At the present hearing, the AGC of Massachusetts representative ac- knowledged that AGC was without authority to stipu- late any aspect of the Employer's operation to the Joint Board other than J. F. White Building Division. There appears to be an "agreed-upon method for the voluntary adjustment of the dispute" only if the work is being performed by White's Building Division sc as to be covered by the AGC agreement and its Joint Board stipulation. Under the practice adopted by the Employer, it determines if a particular job is "heavy and highway" or "building" prior to bidding that job. Once that initial determination is made, the entire pro- ject is performed by the particular division of White having jurisdiction over the job. Concerning the project involved in this dispute, the "site excavation" aspect of the job was determined to be "heavy" construction. The bids on that portion were prepared by the Heavy Construction supervisory personnel. The jobsite super- intendent for that aspect of the job was a Heavy Con- struction employee and the work itself was performed by employees of the Heavy Construction Division of White. The president of the Employer testified there was little, if any, employee interchange among the Heavy and the Building Divisions, either at the supervi- sory or at the rank-and-file level. The disputed work was performed under the "Heavy and Highway" agree- ment with the Laborers. In early July 1973, the business agent of the Plum- bers inquired of the president of J.F. White and super- intendent of the jobsite as to whether plumbers would be assigned the work in question. Being informed that the assignment would be made to laborers, the Plum- bers agent attempted to negotiate a settlement with the Laborers, until October 1973, when the assignment to laborers became final. On November 2, 1973, the Plum- bers submitted the dispute to the Boston board for the settlement of jurisdictional disputes. After a hearing before that Boston board, at which both the Laborers and Plumbers participated, the local board awarded the work in question to plumbers. The Employer, claiming to be divided into a Building Division and a Heavy and Highway Division, asserted that only its Building Divi- sion was bound by the local board determination and that the work in question was that of the Heavy and Highway Division, and, accordingly, ignored the local board's assignment to plumbers. On November 14, 1973, the Laborers withdrew from the Boston Building Trades Council, through which it was bound to the local board for the settlement of jurisdictional disputes, and laborers continued to perform the work. As noted, the Employer refused to accept the local board's deter- mination and commenced the work in question in Feb- ruary 1974, with laborers performing the work. On February 26, 1974, the Plumbers agent visited the job, looked at the disputed work being performed, and re- turned to the job the following morning with pickets. The purpose of the pickets was to protest the White assignment of the disputed work to laborers. As a result of the picketing the job was shut down for several days. On February 27, 1974, the charge against the Plumbers was filed. B. The Work in Dispute The work in dispute is the unloading, distribution, and installation of lateral sanitary sewer and on-site water pipe at the MBTA Massachusetts Bay Transpor- tation Authority) project at Wellington Circle in Med- ford, Massachusetts. LOCAL 12, PLUMBERS 365 C. Contentions of the Parties The Plumbers, through its agreements with plumb- ing contractors, is bound by the Associated General Contractors of Massachusetts , Inc., and has agreed to be bound by the national local plans for the settlement of jurisdictional disputes . The Plumbers contends that because the Laborers was bound by the national and local jurisdictional dispute settlement plans at the time of the work assignment and original hearing before the local board, then the Laborers is bound to such plans. Accordingly, since the local board awarded the work in dispute to the Plumbers, plumbers are entitled to per- form the work. The Laborers contends that because Laborers Local 22 had withdrawn from membership in the Boston Building and Construction Trades Council, and conse- quently from the Boston Local Joint Board, prior to the time the current dispute arose , the Laborers therefore had not agreed to any alternate method of settling the dispute. Laborers contends that it has not agreed to be bound by any plan for settlement of jurisdictional dis- putes that covers the dispute in issue herein . Laborers has agreed to be bound by the "new" national plan where employers with whom it has contracts have agreed to be bound . It does not agree to be bound by the local plan. Laborers has agreed with Associated General Contractors of Massachusetts, Inc., to submit jurisdictional disputes to the national board where em- ployer signatories to Associated General Contractors of Massachusetts, Inc., have stipulated to be bound. This, however, pertains to the Building Agreement. La- borers does not agree to submit disputes under the Heavy and Highway Agreement to the national board. James V. Merloni, president, Massachusetts Laborers District Council, stated that as a result of the Laborers withdrawal in the fall of 1973 from the Boston Local Joint Board for the Settlement of Jurisdictional Dis- putes, it is not bound by the national plan. The Employer contends that its Heavy Construction Division is a signatory to an agreement between the Massachusetts Labor Relations Division of New Eng- land Road Builders Association' and the Laborers which covers the disputed work. The Plumbers in not bound by any agreement with this association. The Employer's position on the decision of the Boston Joint Board is that under N.L.R.B. v. Plasterers 'Local Union No. 79, Operative Plasterers' & Cement Masons ' Inter- national Assn., AFL- CIO, et al., 404 U. S. 116 (1971), it was not a party to the Joint Board stipulations either locally or nationally, and is therefore not bound by the Joint Board determinations. The Employer and Laborers contend the disputed work belongs to laborers on the basis of contract, the Employer's and area practice, efficiency, safety, and skill. D. Applicability of the Statute Before the Board may proceed with a determination of 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. The record establishes that there is no agreed-upon method for settling the dispute. The record also shows that on February 26, 1974, the Plumbers agent visited the job and saw the disputed work being performed by laborers. He returned to the job the following morning with pickets. The purpose of the pickets was to protest the Employer's assignment of the disputed work to laborers. As a result of the picketing the job was shut down for several days. In view of the foregoing, we find that there is reason- able cause to believe that there has been a violation of Section 8(b)(4)(D) of the Act, 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 involved. The following are relevant in making a determination of the dispute before us:' 1. Certifications and collective-bargaining agreements There is no evidence that either of the labor organi- zations involved herein has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employees. The Employer's Heavy Construction Division is a signatory to an agreement between the Massachusetts Labor Relatios Division of New England Road Build- ers Association (Labor Relations Division of the Con- struction Industries of Massachusetts) and the Labor- ers. The Plumbers is not bound by any agreement with this association. The collective-bargaining factor tends to support the award to laborers as the Employer had no agreement with the Plumbers and its agreement with the Laborers expressly covers the work in ques- tion. 6 Now called Labor Relations Division of the Construction Industries of Massachusetts 7 International Association of Machinists , Lodge No. 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402, 1410 (1962) 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . 2. Company and industry practices The Employer has always assigned this work to la- borers and has never assigned it to plumbers. The one isolated instance where the Plumbers claims the Em- ployer made such an assignment to plumbers involved the placing of a single plumber in with the crew of laborers as a means of avoiding a possible labor dispute some 10 years ago. The actual work on that job was performed by laborers. Several years ago an almost exactly similar project was performed for Massa- chusetts Bay Transit Authority south of Boston. On that job, the Employer assigned the unloading, distri- bution, and installation of lateral sanitary sewers and pipe work to its employees represented by the Laborers. Similar work was assigned to laborers in the Em- ployer's construction of the Foxboro professional foot- ball stadium about 35 miles southwest of Boston. Ac- cordingly, the Employer's assignment of the work, and its past practice favors the assignment to the laborers. The evidence of area practice shows that, when gen- eral contractors perform the type of work in dispute on projects of substantial magnitude, they use laborers; and, when plumbing subcontractors perform such work, they use plumbers for the actual pipe installation, but trench excavation and leveling is performed by others. The area practice tends to favor the assignment of work to the laborers. 3. Efficiency of operations, economy, and relative skills The pipes are unloaded adjacent to the trench exca- vation area. The trench surface is excavated either by a laborer with a jackhammer or by an operating engi- neer with a backhoe. The laborer will then shore the trench, and smooth the bottom of the trench with a shovel or similar tool. The pipe is then either hand- lifted into the trench or hoisted down to the trench with a cherry picker or similar small hoist. The pipes are then coupled, and the laborer removes the trench shor- ing and assists in backfilling the trench. The laborer then operates a tamping device to smooth the backfill- ing. this operation is done in single stretches of 10-30 feet depending on the size of the pipe and the type of earth material encountered. The only work claimed by the Plumbers is the unloading and coupling of the pipe. All the other work is admittedly that of laborers. It would be inefficient to have to employ two crews to perform this work which can be done more effi- ciently by one crew. As the plumber's crew would not perform the jackhammer work, the shoring, the shovel- ing, the leveling, the backfilling, or the tamping neces- sary to this operation, the efficiency and economy of the operation would favor the assignment to laborers. The Employer consistently uses laborers for the type of work in dispute. The present crew, consisting of a foreman and four laborers, excavates the trenches, shores it, levels it, lays the pipe, and then backfills. There is no pipe threading, no flanging, no welding, no soldering. A plumber's license is not required to per- form the pipe work in dispute; and, unlike plumbing work in the building, no plumbing inspection is re- quired for the site. The Plumbers apprentice program (5 years) does not encompass the type of work in dis- pute. Plumbers no doubt possess the skill for handling and coupling the pipes, but the skills which serve as the basis for the plumbers' substantially higher wage rate are not performed in this operation, and plumbers do not perform all the tasks necessary for the operation. As laborers have all the skill necessary and do perform all of the tasks necessary for this operation, the assign- ment of the work favors laborers. Conclusion Upon the entire record, after full consideration of all relevant factors here involved, we believe that the work in dispute should be awarded to employees represented by the Laborers. The fact that the Employer' s assign- ment conforms to the contract and to its own and area practice, the fact that the laborers employed by the Employer not only have the requisite skills but are familiar with all facets of the work, and the attendant efficiency and concurrent economics of utilizing the services of laborers for all the tasks necessary for the on-site work, lead us to conclude that the Employer's assignment of work to laborers is a proper one. There- fore, we shall assign the work in question to employees of the Employer who are represented by the Laborers. In making this determination, which is limited to the controversy that gives rise to this proceeding, we are not assigning the work to the Laborers or its members. Scope of Award The Employer requests an areawide award on all of its projects, contending that such award is necessary because of the likelihood that the dispute will occur on further construction jobs on which it is involved. However, we do not find the record evidence herein sufficient to establish a pattern of misconduct sugges- tive of a likelihood that this dispute will extend to other jobsites or recur in the future. Accordingly, we do not believe that the broad order requested by the Employer is appropriate at this time and, therefore, the determi- nation herein shall apply to the project presently under consideration. LOCAL 12, PLUMBERS 367 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 proceeding, the National Labor Relations Bord hereby makes the following Determination of Dis- pute: 1. Employees of J. F. White Contracting Co., Heavy Construction Division, who are represented by Local 22, Laborers International Union of North America, are entitled to perform the work of unloading, distribution, and installation of lateral sanitary sewer and on-site water pipe at the MBTA project at Wellington Circle, in Medford, Massa- chusetts. 2. Local Union No. 12 of the United Association of Plumbers and Gas Fitters is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer, J. F. White Con- tracting Co., Heavy Construction Division, to as- sign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local Union No. 12 of the United Association of Plumbers and Gas Fitters shall notify the Regional Director for Re- gion 1 , in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to as- sign the work in dispute to employees represented by it rather than to employees represented by Local 22, Laborers International Union of North Ameri- ca.