Laborers' International Union, Local 43

National Labor Relations Board - Board Decisions

Feb 22, 1972

195 N.L.R.B. 526 (N.L.R.B. 1972)

526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers ' International Union of North America, Lo-
cal No . 43, AFL-CIO and John M . Gerber Plumb-
ing & Heating Co. and Cedar Rapids Local No. 125
of the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry
of the United States and Canada , AFL-CIO. Case
18-CD-127
February 22, 1972
DECISION AND DETERMINATION OF
DISPUTE
Act and that it will effectuate the policies of the Act to
assert jurisdiction herein.
II THE LABOR ORGANIZATIONS
The parties stipulated , and we find, that Laborers'
International Union of North America, Local No. 43,
AFL-CIO, and Cedar Rapids Local No. 125 of the
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, are labor organizations
within the meaning of Section 2 (5) of the Act.
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 John M. Gerber Plumbing & Heating
Co. (herein referred to as the Employer) on June 14,
1971, alleging that Laborers' International Union of
North America, Local No. 43, AFL-CIO (herein re-
ferred to as Local 43 or Laborers), has violated Section
8(b)(4)(D) of the Act by engaging in certain proscribed
activity with an object of forcing or requiring the as-
signment of certain work described below to employees
represented by Local 43 rather than to members of
Cedar Rapids Local No. 125 of the United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
AFL-CIO (herein referred to as Local 125 or Plum-
bers). A hearing was held before Hearing Officer James
T. Hansing on August 30 through August 31, 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.
Local 43 and Local 125 filed briefs.
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 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, including the
briefs, the Board makes the following findings:
I THE BUSINESS OF THE EMPLOYER
John M. Gerber Plumbing & Heating Co. is an in-
dividual business engaged in plumbing and heating
contracting in Cedar Rapids, Iowa, and vicinity. Dur-
ing the past year the Employer's gross revenues ex-
ceeded $50,000, and its purchases of goods originating
outside the State of Iowa exceeded $50,000. Accord-
ingly, we find that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
195 NLRB No. 103
III. THE DISPUTE
A. The Work in Dispute
The parties agreed at the hearing, and we find, that
the disputed work involves the installation and repair
of new and existing water and sewer services in the
street and from the street to the house. The specific
work tasks involved include: assisting the operating
engineer in excavating the ditch by breaking up any
pavement and searching for underground cables; level-
ing the bottom of the ditch with a shovel in preparation
for laying the pipe; laying the pipe and making the
connection to the main in the street ; assisting the oper-
ating engineer in closing the ditch; and performing a
certain amount of yard and clean-up work.
B. Background
Prior to December of 1970, the Employer's practice
was to hire a member of Laborers to assist the operating
engineer in laying water and sewer services from the
street to the house. However, at that time the Plumbers
filed a grievance against the Employer alleging that it
had violated its collective agreement with Local 125 in
assigning plumbers' work to a member of the Laborers.
The joint arbitration board, set up by agreement be-
tween Local 125 and the employer association to hear
such disputes, concluded that the Employer was in
violation of the agreement. Thereafter, on April 23,
1971, the Employer laid off Engledow, a member of the
Laborers, and replaced him with a member of the
Plumbers.
On May 24, 1971, Business Representative Hoover
Hubbard of the Laborers sent a letter to the Employer
stating, among other things, that the work performed
by Engledow belonged to the Laborers and if the Em-
ployer did not rehire Engledow or a member of the
Laborers to perform the disputed work Local 43 "will
be forced to use any other legal remedy, including pick-
eting that may be necessary."
LABORERS ' INTERNATIONAL UNION, LOCAL 43 527
C. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to 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.
We find the letter sent by Local 43 to the Employer,
referred to above, threatened the Employer with pick-
eting with an object of forcing or requiring it to assign
the disputed work to members of the Laborers rather
than to members of the Plumbers . Thus, we find rea-
sonable cause to believe Section 8 (b)(4)(D) has been
violated and that the dispute is properly before the
Board for determination pursuant to Section 10(k) of
the Act.
D. Contention of the Parties
Laborers contends that the disputed work should be
assigned to it because the work tasks involved are gen-
erally viewed as laborers ' work ; Laborers has a contract
with the Employer which covers this work ; area and
company practice , until recently, was to use laborers in
performing this work; the Employer can operate his
business more efficiently by using laborers ; and, in prior
Board decisions , similar work has been assigned to the
Laborers.
Employer 's position is that , for reasons of efficiency,
he would prefer to use laborers in performing the work.
Plumbers contends that the Employer has assigned,
and the current area practice is to assign , the disputed
work to its members; some of the work in dispute re-
quires certain skills which a plumber is specially
trained to perform ; and Local 125 has a contract with
the Employer covering this work and has received an
arbitrator 's award for the work.'
' Plumbers also contends that the work should be awarded to it because
a Cedar Rapids ordinance purportedly requires that all "plumbing " be per-
formed by a licensed plumber, and the disputed work is plumbing Uncon-
troverted testimony on the record indicates , however, that the municipal
court, in one recent case prosecuted against the Employer's laborer under
that section , ruled that the ordinance was unenforceable since it adopted by
reference a definition in the state code without reprinting the definition
therein contained , subsequently , the city was temporarily enjoined by the
county district court from further prosecuting under that provision
Assuming , arguendo, that the ordinance is enforceable , it would not affect
our decision as to which group is entitled to the disputed work As the Board
said in a prior case where a similar argument was urged "[W]e are not called
upon to construe or enforce local ordinances in proceedings under Section
10(k), and whatever the ultimate intendment of such regulations may be,
they cannot preempt the Board's authority and responsibility to rest its
decision upon all the pertinent facts before it " Local 5, United Association
of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO (Arthur Venneri Company), 145
NLRB 1580, 1597
E. Merits of the Dispute
1. Certification and bargaining agreements
Neither union contends that it has been certified by
the Board to perform the work in dispute.
The Employer is a signatory to an agreement be-
tween the Cedar Rapids Association of Plumbing Con-
tractors and Local 125 and has verbally agreed to com-
ply with the terms Local 43 has negotiated with Allied
Construction Interests , Inc. Both agreements contain
language which could cover the work in dispute.
Plumbers contends that its contractual claim is ex-
clusive , while that of the Laborers is not, since the
Laborers claim is qualified by a reference in its contract
to an early decision made by a national referee of the
Building and Construction Trades Department, Hut-
cheson , to the effect that the work involved in laying
lateral sewer pipe from the main sewer to the dwelling
is to be performed by the plumbers , or performed under
the supervision of a plumber .2 However, we do not
interpret this reference to the Hutcheson decision in the
Laborers agreement as a concession by them of any of
the disputed work to the Plumbers.' Both the relevant
language of the Laborers agreement and the Hutcheson
decision itself provide for the alternative of having the
disputed work performed under the supervision of a
plumber . Thus, we interpret the reference to the Hut-
cheson decision as conceding only that the Employer
may assign the supervision of the disputed work to the
plumbers to the extent that that is required by the
Hutcheson decision but that Laborers therein broadly
claims the performance of the disputed work.
The Joint Arbitration Board , set up jointly by the
Plumbing Contractor 's Association and the Plumbers
to interpret their agreement, decided that the Employer
was required by that agreement to hire an apprentice
plumber to do the work in dispute . However , as Local
43 was not a party to that proceeding , it is not control-
ling herein . In our view , the Employer 's agreements
with both unions arguably provide for coverage of the
work in dispute and, therefore , neither can be a signifi-
cant factor in our decision as to which group is entitled
to the work.4
3 The relevant portion of the Laborers agreement provides in the "Juris-
dictional claims" section "Laying of lateral sewer pipe from main sewer or
side sewer to building or structure except that employer may direct that this
work be done under proper supervision (Referee Hutcheson 's decision) "
' Cf Local S, supra, 1590-95, where the Board traced the history of the
dispute between the Plumbers and Laborers over this kind of work and
noted the 1941 agreement between the two unions , the subsequent clarifica-
tions thereto , and the many conflicting arbitrators ' and referees ' decisions
interpreting the agreement, including the Hutcheson decision , the Board
concluded that this checkered history of litigation indicates that the parties
had never come to an amicable or definitive resolution of their long -standing
dispute over work of this kind
New York Mailers ' Union No 6, International Typographical Union,
AFL-CIO (The New York Times Company), 137 NLRB 665, 669
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Past practice
THE Employer has been in the heating and plumb-
ing business for nearly 16 years and, up until April of
1971, had always-with the exception of one project in
mid-1970-assigned a laborer to perform the disputed
work. Other contractors in the area doing similar work
testified that, prior to 1970, they had also assigned the
disputed work to laborers for as long as they had been
in business. Thus, we find that there has been a long-
established practice in the area and by the Employer of
assigning the disputed work to laborers.
It is uncontroverted that the reason this practice
changed recently was a campaign commenced by the
Plumbers to obtain the work for its members and not
for any reason relating to a change in the work tasks
or the continued ability of the laborers to perform the
work. Under these circumstances, we find that past
practice weighs in favor of awarding the work to the
laborers.
3. Skills and efficiency
There is no showing that the disputed work requires
a degree of skill not possessed by the laborers. The
Employer and other contractors who have used labor-
ers to perform this work in the past all testified that
laborers have the necessary skills to perform the work
satisfactorily.
Gerber further testified, and his testimony was sup-
ported by that of other contractors in the area, that he
could run his business more efficiently by using laborers
to perform the disputed work. He gave as reasons the
fact that laborers are paid less; he has never had trouble
getting a laborer, while Local 125 has not always been
able promptly to supply him with a plumber, forcing
him more than once temporarily to shut down his oper-
ation; and laborers appreciate the work more and as a
result perform better than plumbers, who dislike get-
ting in the ditch. It seems clear that the work does not
require the skills possessed by those in the plumbers'
craft.
These factors clearly favor laborers.
CONCLUSIONS
Having considered all pertinent factors, we conclude
that employees represented by the Laborers are entitled
to perform the work in dispute. As indicated above,
until recently, the Employer's practice and the practice
in the area had been to assign a laborer to perform the
disputed work; recent assignments made to the Plum-
bers, we have found, were influenced by considerations
irrelevant to our determination. Laborers are suffi-
ciently skilled to perform the disputed work, whereas
the work does not require the skills of plumber crafts-
men. Moreover, the Employer has been satisfied with
the quality of the laborers' work and their efficiency in
performing same. Accordingly, on the basis of the en-
tire record, we shall determine the existing jurisdic-
tional controversy by awarding to the employees repre-
sented by the Laborers, rather than to individuals
represented by the Plumbers, the installation and repair
of water and sewer services in the street and from the
street to the house for the Employer. The present deter-
mination is limited to the particular controversy which
gave rise to this proceeding. In making this determina-
tion, we are assigning the work to the laborers who are
represented by Local No. 43 and not to that Union or
its members.'
DETERMINATION OF THE 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 case, the
National Labor Relations Board makes the following
Determination of Dispute.
Employees represented by Local 43, Laborers' Inter-
national Union of North America, AFL-CIO, are enti-
tled to perform all work tasks necessary for the installa-
tion and repair of water and sewer services in the street
and from the street to the house for John M. Gerber
Plumbing & Heating Co.
CHAIRMAN MILLER, dissenting:
I would assign the work to the plumbers.
The record shows that the Employer, which is en-
gaged in the plumbing and heating business, had a
steady complement of at least four plumbers repre-
sented by Local 125. The Employer signed a collective-
bargaining agreement with Local 125 which clearly and
unequivocally provides that the work in dispute, which
chiefly involves the laying of pipes, falls under the ex-
clusive jurisdiction of the Plumbers. After the Plum-
bers grieved the Employer's assignment of the disputed
work to a laborer through the agreed-upon arbitration
procedure, resulting in a decision to its favor, the Em-
ployer recognized his contractual obligation and as-
signed a plumber to perform the work.
' Accord, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, Local
122, AFL-CIO (Conduit and Foundation Corp and R A Hamilton Corpo-
ration), 190 NLRB No 7, Local 388, United Association ofJour neymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO (Associated Underground Contractors, Inc), 180
NLRB 456, Local 388, United Association ofJournevmen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO (Associated Undergiound Contractors, Inc), 175 NLRB 540,
Building and Construction Trades Council of Las Vegas and Local 525,
United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO (Charles J.
Dorfman and Underground Engineering Contractors Association), 173
NLRB 1339
LABORERS ' INTERNATIONAL UNION, LOCAL 43 529
Now comes Laborers, which threatens the Employer Laborers contract with the construction industry. In
with economic action proscribed by Section 8(b)(4)(D) my view, Laborers claim in these circumstances is not
of the Act. For whatever reason , Laborers has chosen sufficiently substantial to warrant our abrogating
to base its relations with the Employer on an informal Plumbers written agreement, and I therefore dissent
arrangement consisting merely of a verbal promise on from the award made by my colleagues.
the part of the Employer to follow the provisions of the