Plumbers & Steamfitters Local 157

National Labor Relations Board - Board Decisions

Jun 21, 1971

191 N.L.R.B. 302 (N.L.R.B. 1971)

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers and Steamfitters Local Union No. 157 of the
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada , AFL-CIO' and Curry
Construction Company and Laborers ' International
Union of North America , AFL-CIO, Local Union
No. 204. Case 25-CD-107
June 21, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following the
filing of charges by Curry Construction Company,
herein called Employer, alleging that Plumbers and
Steamfitters Local Union No. 157 of the United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, 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 certain work to Plumbers
rather than to employees represented by Laborers' In-
ternational Union of North America, AFL-CIO, Local
Union No. 204, herein called Laborers.
Pursuant to notice, a hearing was held before Hear-
ing Officer John W. Gray on February 10, 1971. 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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Hearing
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:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that Curry Con-
struction Company is a construction company with its
principal offices in Bloomington, Indiana, engaged in
the utility construction business, including the installa-
tion of water mains and sewerlines. During the past
' The name of the Union appears as amended at the hearing.
year, it has received at its jobsites and facilities in the
State of Indiana goods and materials valued in excess
of $50,000 which were transported to Indiana jobsites
and facilities directly from sources outside the State of
Indiana. The parties stipulated, and we find that Curry
Construction Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. We
further find that it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Laborers
and Plumbers are labor organizations within the mean-
ing of Section 2(5) of the Act.2
III. THE DISPUTE
A. Background and Facts of the Dispute
The dispute involves the handling and installation of
all piping in connection with forced sewer mains and
lift stations pursuant to Employer's contract with the
city of Terre Haute, Indiana, for the construction of
sewers, lift stations, and forced mains, known as Local
Sanitary Sewer Project, section A, areas 1 through 4.
The contract price is approximately $1,500,000. Part of
the work covered by the contract between Employer
and the city of Terre Haute has been subcontracted to
the Sid Cowden Construction Company, herein called
Cowden. Near the end of September 1970, Cowden
began construction on the sewer project. Employer
started construction on the sewer project around the
first of October 1970. There is no dispute herein as to
the handling and installation of the gravity feed sewer
pipe which is being performed by members of Laborers.
Employer has contracts with Laborers and with Oper-
ating Engineers but not with Plumbers.
Employer's contract with Laborers is effective from
April 1, 1968, to March 31, 1971. On August 4, 1970,
Employer assigned, in writing, to employees repre-
sented by Laborers, all work on the jobsite that is cov-
ered by the "Manual of Jurisdiction," a pamphlet
which was drafted in October 1961 and outlines the
jurisdictional claims of Laborers. Employer has an
agreement with Operating Engineers, effective April 1,
1968, to March 31, 1971, known as the Sewer Agree-
ment and containing a provision for the submission of
jurisdictional disputes to the National Joint Board For
Settlement Of Jurisdictional Disputes, herein called
National Joint Board.
2 At the beginning of the hearing, Plumbers moved to make International
Union of Operating Engineers, Local Union No. 841, herein called Operat-
ing Engineers, a party to this proceeding The Hearing Officer denied the
motion. However, the parties stipulated that Operating Engineers is a labor
organization.
191 NLRB No. 25
PLUMBERS & STEAMFITTERS LOCAL 157 303
On August 24, 1970, Operating Engineers submitted
to Employer a Memorandum of Pre-Job Conference
which claimed, among other things, jurisdiction over
lift stations including piping, forced mains, tanks, and
all water pumps at the Terre Haute job, work which is
in dispute here. Employer refused to sign such memo-
randum. However, on September 2, 1970, Operating
Engineers submitted a second Memorandum of Pre-
Job Conference which did not include claims to the
work involving the lift stations, piping, and forced
mains, and Employer signed such agreement. Follow-
ing Operating Engineers claim to the disputed work of
installing lift stations and forced mains, Plumbers sub-
mitted the matter to the National Joint Board. In its
correspondence to the National Joint Board during
September 1970, Employer denied that the National
Joint Board had jurisdiction over the dispute based on
the fact that an assignment had not been made of the
work in dispute. Employer notified the National Joint
Board on November 16, 1970, that it had assigned the
installation of lift station equipment to members of
Operating Engineers and that all other work was as-
signed to members of Laborers. On November 20,
1970, the National Joint Board rejected Employer's
argument and entered an award in favor of Plumbers.
Employer intends to use the same crew complement
and procedures to install the forced main sewer pipe as
it has with the gravity sewer pipe. The present crew
consists of four laborers, two operating engineers, one
oiler, and one foreman. Operating engineers operate the
heavy equipment, two laborers work in the ditch, and
two laborers and the foreman work on top of the ditch.
Operating engineers do,the excavating of the ditch with
the backhoe, two laborers level out the bottom of the
ditch, one laborer helps to put the pipe in the ditch,
and, after the pipe is installed, an operating engineer
operates a bulldozer to backfill the dirt.
At the Terre Haute project, approximately 1,200 lin-
eal feet of forced main pipe and 110,000 lineal feet of
gravity flow pipe are to be installed. Gravity flow pipe
carries sewage through the force of gravity. At the end
of each section of the gravity flow system, a manhole
type lift station is installed. A lift station is a manhole
type pit, 6 feet in diameter, in which gravity flow is
received inside the manhole, and two submersible
pumps pick up the gravity flow of sewage and raise it
to approximately 4 feet below the existing ground level
and then force it to the nearest manhole, which will
permit the gravity flow of the sewer to continue. The
forced main pipe is the connection between the lift
station and the manhole through which the sewage
moves uphill under the pressure of the pumps. Labor-
ers build the lift stations, and operating engineers oper-
ate the hoisting equipment which guides the precast
sections into place.
There are two pumps at each lift station, which,
although not connected to the lift station, must be con-
nected to the 4-inch cast iron pipes running into and
out of the lift station. In order to make the joint on the
cast iron forced main pipe, an 0-ring gasket is inserted
into the spigot end of the pipe; it is lubricated with a
greasy substance by hand and placed into the bell end
of the pipe. This operation is similar to the operation
of making a joint on the vitrified clay gravity sewer
pipe, which laborers have performed, and it is called
slip seal joint construction. The only tools used in in-
stalling forced mains and piping inside lift stations are
longhandled shovels and crescent wrenches to tighten
bolts. Laborers have been bolting the joints connecting
the piping inside the lift station. There is no require-
ment of cutting pipe in order to make a pipe fit into the
pumps and make connections in the lift stations. There
is a total of four lift stations on the project. Laborers
knock out openings in the precast lift stations with a
sledge hammer to insert the gravity flow pipe and the
forced main pipe 'and seal up the joints by applying
cement with their hands.
The parties stipulated that Curtis Curry, owner of
Employer, would testify that sometime during the
month of April 1970, and again during the month of
November 1970, representatives of Plumbers in conver-
sations with Curry threatened him with the object of
forcing or requiring him to assign the work in issue to
members of Plumbers rather than to members of La-
borers and' that the parties agree that there is reasona-
ble cause to believe that a violation of Section
8(b)(4)(D) had occurred. Work was not being per-
formed on the sewer project in April at the time of the
first conversation, but laborers were performing work
on the job'at the time of the second conversation in
November.'
B. The Work in Dispute
The work in controversy involves the handling and
installation of all piping in connection with forced
sewer mains and lift stations.
C. The Contentions of the Parties
Plumbers renews its motion , made at the hearing, to
make Operating Engineers a party to the proceeding on
grounds that the collective -bargaining agreement be-
tween Operating Engineers and Employer, known as
the Sewer Agreement , made Employer a party to the
National Joint Board proceeding ; and therefore Em-
ployer was bound by the National Joint Board award.
In any event , the Board should rule that an employer
' The parties also stipulated that at no time since the beginning of con-
struction on the Terre Haute sewer project has there been any picketing by
any labor organization nor has there been any work stoppage at any time
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is bound when competing unions are bound to the Na-
tional Joint Board, pursuant to the United States Court
of Appeals for the District of Columbia Circuit in Plas-
terers Local Union No. 79 [Southwestern Construction
Co.] v. N.L. R. B., I in which the court interpreted Sec-
tion 10(k) of the Act to mean that rival unions are the
only parties to a jurisdictional dispute. In support of its
claim, Plumbers relies on a National Joint Board deci-
sion on November 20, 1970, which purportedly consid-
ered a jurisdictional dispute submitted by Plumbers
and involving Plumbers, Laborers, and Operating En-
gineers over the work in dispute herein, and awarded
the work to Plumbers on the basis of trade practice.
Finally, Plumbers moves to quash service or to dis-
miss the charges and to defer to the voluntary means
of adjustment designated by the parties to resolve this
dispute; namely, the National Joint Board.'
Employer contends that the basic dispute in this case
is between Plumbers and'Laborers; that it is Laborers
who have received the disputed work and that Plum-
bers want that disputed work; and that, since neither
these Unions nor Employer have agreed on any mode
of submission of jurisdictional disputes to the National
Joint Board, it is, therefore, clear that no voluntary
method of adjustment of dispute exists in this case
which would satisfy the requirements of Section 10(k)
of the Act.
In addition, Employer contends that the Board
should not entertain any National Joint Board argu-
ments advanced herein by Plumbers in view of the
Board's decision in Local 157, Plumbers (L & K Con-
tracting Co.), 6 wherein the Board held that the fact that
the employer and Operating Engineers had agreed in
an unrelated collective-bargaining agreement to follow
the National Joint Board's resolution procedure had no
bearing on that case, as it was clear that the employer
itself had not agreed to utilize such procedure in that
dispute and that there was no similar provision between
the employer and Laborers. Thus, Plumbers unilateral
submission of a dispute to the National Joint Board and
the National Joint Board' s issuance of a favorable
award to Plumbers was held not controlling.
Laborers contends that Plumbers assertion that Op-
erating Engineers is involved in this dispute is without
any basis in fact as the signed Memorandum of Pre-Job
Conference, which was executed by Operating Engi-
neers, Employer, and Cowden, completely resolved any
4 74 LRRM 2575 (C.A.D C., June 30,1970), denying enforcement of 172
NLRB No. 77, see also 167 NLRB 185
' At the hearing, Plumbers moved that the notice of hearing be quashed
and the charges be dismissed on two grounds- (1) that there has been no
violation of Section 8(b)(4)(D), and (2) that there is a voluntary means, a
voluntary private means, of settling the dispute and that the Employer is
bound. The Hearing Officer denied the motion.
6 Local 157, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-
CIO (L & K Contracting Company, Inc.), 186 NLRB No. 152
problems with Operating Engineers. And, as in L & K
Contracting Co., Employer herein by letters dated Sep-
tember 29, 1970, and November 16, 1970, made it clear
that it would not agree to submit the present dispute to
the National Joint Board.
D. Applicability of the Statute
Before the Board may proceed to the determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed on methods for the volun-
tary adjustment of the dispute.
The statutory requirement that there must be reason-
able cause to believe that Section 8(b)(4)(D) has been
violated before the Board may make a determination
pursuant to Section 10(k) was met when the parties
stipulated that representatives of Plumbers threatened
Employer with an object of forcing him to assign the
work in issue to members of Plumbers and when the
parties agreed that there is reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred.
As noted previously, Plumbers asserts that Em-
ployer as well as Operating Engineers, Plumbers, and
Laborers were parties to contracts designating the Na-
tional Joint Board as the agency for settlement of juris-
dictional disputes. In support of its contention, Plum-
bers alludes to the contract between Employer and
Operating Engineers which contains a provision for the
submission of jurisdictional disputes to the National
Joint Board. In addition, Plumbers contends that La-
borers is a member of the Building and Construction
Trades Department, AFL-CIO, and that the record
contains documentary evidence, i.e., the Constitution
of the Building and Construction Trades Department,
AFL-CIO, the Procedural Rules and Regulations of
the National Joint Board, and the Plan for Establish-
ment of the National Joint Board which is proof posi-
tive that Laborers has agreed to be bound by terms of
the National Joint Board, as have both Plumbers and
Operating Engineers.
While the record supports Plumbers contention that
Employer and Operating Engineers are parties to an
agreement which contains a provision for the submis-
sion of certain jurisdictional disputes to the National
Joint Board, we find, here, as we did in L & K Contract-
ing Co.,7 that it is clear that Operating Engineers is not
a party to this proceeding and that there is no evidence
of such provision in the contract between Employer
and Laborers. Thus, Employer and Laborers, necessary
parties, have not agreed to submit the present dispute
to the National Joint Board.
7 Supra
PLUMBERS & STEAMFITTERS LOCAL 157
As to the contention that Laborers membership in
the Building Trades Department of the AFL-CIO con-
stitutes proof that Laborers has agreed to be bound by
the terms of the National Joint Board, the sole issue is
whether all the parties to this proceeding, Employer,
Laborers, and Plumbers, have agreed to a voluntary
adjustment of the dispute, and the record indicates
clearly that they have not.
In view of our finding that Employer is not bound to
the National Joint Board procedures with respect to the
dispute now before us, we do not, as noted below, find
controlling the fact that Plumbers had unilaterally, and
without the consent of Employer, submitted the dis-
pute to the National Joint Board and that the National
Joint Board thereafter issued an award favorable to
Plumbers.
With due respect for the opinions of a majority of the
District of Columbia Court of Appeals, announced in
Southwestern Construction (supra, fn. 4), that the term
"parties" as used in Section 10(k) means that only the
two unions or groups of employees claiming the work
in dispute need agree on a method of voluntary adjust-
ment of the dispute for the Board to quash the notice
of hearing, we continue to adhere to our longstanding
and consistent position that Section 10(k) must be in-
terpreted to mean that the employer controlling the
work assignment and the rival unions or groups of
employees involved comprise the "parties to such dis-
pute" and all must approve and enter into a voluntary
settlement procedure in order to preclude a hearing and
determination pursuant to that section.' Finally, we
note that the Board's interpretation of this aspect of
Section 10(k) was neither questioned nor disturbed
when the National Labor Relations Act was most re-
cently amended by Congress in 1959. Thus, we find no
merit in this contention of Plumbers.'
Accordingly, we find there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has oc-
curred and that the dispute is properly before us for
determination under Section 10(k) of the Act.10
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.
For an extensive compilation of Board cases in point, see fn 1 in Judge
MacKinnon 's dissenting opinion in Southwestern Construction, supra.
See Lathers Union Local 104, The Wood, Wire and Metal Lathers
International Union, AFL-CIO (Associated General Contractors ofAmerica,
Inc., Seattle Northwest Chapter (The Blaine Petty Company)), 186 NLRB
No 70
° For the reasons indicated, we deny Plumbers motion to quash the
notice of hearing
305
1. Certification and collective-bargaining agreements
Neither of the labor organizations involved herein
has been certified by the Board as the collective-bar-
gaining representative for a unit of Employer's em-
ployees so that the claims of Laborers and Plumbers are
unaffected by this factor.
As previously stated, Employer and Laborers are
parties to a contract" which provides that Laborers
shall have jurisdiction over that work which was set
forth in the Manual of Jurisdiction, adopted during
October 1961, by Laborers' International Union of
North America. The manual has reference to jurisdic-
tional claims, including, in part, pipelaying, leveling,
and making of the joint of any pipe used for main or
side sewers and storm sewers.
On August 4, 1970, Employer, in a letter to Labor-
ers, assigned all work on the Terre Haute sewage
project, as set forth in the Manual of Jurisdiction, to
Laborers.
Plumbers admitted, by way of stipulation, that it is
not a party to any collective-bargaining agreement with
Employer.
Accordingly, we find that the contractual agreement
between Laborers and Employer favors Laborers.
2. Company and industry practices
The record reveals that since 1960 Employer has
performed 18 to 20 jobs in the State of Indiana, but
outside the geographical jurisdiction of Plumbers, on
which the work of installing the lift stations and forced
mains was assigned to and performed by members of
Laborers. However, except for the present Terre Haute
job which is being performed by Employer, there has
been only one other job by Employer involving the
installation of lift stations and forced mains within the
jurisdiction of Plumbers and that was in Bloomfield,
Indiana, in 1964.
Although there is evidence that on three occasions in
the past, involving other employers in Indiana, the Na-
tional Joint Board, on May 23, 1969, and twice on
October 30, 1970, awarded work similar to that in-
volved in the dispute herein to Plumbers rather than
Laborers, the work was performed by Laborers, not-
withstanding the awards to the contrary by the Na-
tional Joint Board.
In addition, the record contains several letters, sent
by various contractors, which assigned the work in
dispute to Laborers. Although two of the letters of
assignment were written after Plumbers claimed the
" Article IV, section 1 , refers to utilities and sewers and provides, in part,
that the laborers shall perform all work involving the laying of all clay, terra
cotta, ironstone , vitrified concrete, and nonmetallic pipe for sanitary and
storm sewers and conduit Imes in streets , roadways, right-of-ways, ease-
ments , building areas, etc, and the laying of pipe and the making of all
mechanical joints on any and all types of pipe for water and other uses.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work, all of the letters were in reference to jobs that
occurred within the geographical jurisdiction of Plum-
bers and Laborers.
Significantly, other than the awards of the National
Joint Board which Plumbers presented, it offered no
witnesses or other evidence to support its claim that it
has performed, and is performing, the work in dispute
within its own geographical jurisdiction or that such
work is being performed by members of Plumbers in
jurisdictions of sister locals. Thus, Employer, area, and
industry practice is a factor supporting an award to
members of Laborers.
3. Relative skills, economy, and efficiency of
operations
There is no showing that the disputed work requires
a degree of skills not possessed by laborers. The record
supports a finding that laborers perform the disputed
work in a competent and satisfactory manner. Curtis
Curry, owner of Employer, testified that, when he calls
the hall for laborers, he does not call for laborers ex-
perienced in any particular skill because a laborer can
learn the job in a few minutes and after working in a
ditch.
As Employer does not employ plumbers but does
employ members of the Laborers, its efficiency would
be increased if it retained laborers to do the same work
on all jobs.
There is no showing by Plumbers that Employer's
employment of its members to do the disputed work
would result in greater efficiency or that it would result
in an economic benefit for Employer. On the contrary,
Employer's employment of plumbers to do the work in
dispute would result in considerable inefficiency of the
operation, as plumbers would have relatively long in-
tervals between periods of performance when they were
actually needed to guide the pipes and makes the joints
in the ditch, following the preparation of the ditch and
the laying of pipe by the laborers.
Since laborers have performed the work in dispute to
the satisfaction of Employer, this is an additional factor
supporting assignment of the disputed work to em-
ployees represented by Laborers.
4. The National Joint Board award
Although, as indicated, supra, we do not consider
the National Joint Board's award binding on Employer
and Laborers, we do consider it a factor in determining
the proper assignment of the work in dispute. However,
in view of all the circumstances, we are of the opinion
that the National Joint Board's award should not be
given controlling weight.
Conclusions
Having considered all pertinent factors, we conclude
that employees represented by Laborers are entitled to
perform the work in dispute. Plumbers has adduced no
significant evidence in support of its claim whereas the
record demonstrates forcefully that numerous relevant
and material factors support the existing performance
of the work by Employer's employees represented by
Laborers. Employer requests that the Board make a
broad determination proscribing Plumbers from un-
lawfully attempting to force an assignment in the future
of work like that involved in this proceeding.
In issuing our award, we note that Plumbers has
previously sought to secure work assigned to Laborers
in L & K Contracting Co.12 and that Plumbers has
stated in a document dated November 9, 1970, that "we
intend to fight if necessary to preserve our rightful
jurisdiction." However, the work in dispute in the L &
K case was not the same work as that involved herein.
And assuming, arguendo, that Plumbers statement of
its intent to fight if necessary to preserve its rightful
jurisdiction constitutes a threat, such threat would not
alone establish that similar disputes will necessarily
occur in the future. Accordingly, we hold that the de-
termination in this case should include only the present
job on which the dispute arose.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board hereby makes
the following determination of dispute.
1. Employees of Curry Construction Company who
are currently represented by Laborers' International
Union of North America, AFL-CIO, Local Union No.
204, are entitled to perform the work of handling and
installing all piping in connection with forced sewer
mains and lift stations at the Local Sanitary Sewer
Project, Section A, Areas 1 through 4, located in the
city of Terre Haute, Indiana.
2. Plumbers and Steamfitters Local Union No. 157
of the United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, is not entitled,
by means proscribed by Section 8(b)(4)(D) of the Act,
to force or require Curry Construction Company to
assign such disputed work to plumbers represented by
that labor organization.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Plumbers and Steamfitters
Local Union No. 157 of the United Association of
" Supra.
PLUMBERS & STEAMFITTERS LOCAL 157 307
Journeymen and Apprentices of the Plumbing and Pipe forcing or requiring Curry Construction Company, by
Fitting Industry of the United States and Canada, means proscribed in Section 8(b)(4)(D), to assign the
AFL-CIO, shall notify the Regional Director for Re- disputed work to its members rather than to employees
gion 25 , in writing, whether or not it will refrain from represented by Laborers.