Laborers' Local 731 (Tully Construction)

National Labor Relations Board - Board Decisions

Feb 15, 2008

352 N.L.R.B. 107 (N.L.R.B. 2008)

LABORERS LOCAL 731 (TULLY CONSTRUCTION CO.)
352 NLRB No. 20
107
Building, Concrete, Excavating & Common Laborers
Union, Local 731 of Greater New York, Long Is-
land and Vicinity, Laborers International Union
of North America and Tully Construction Co.,
Inc. and Local 15, International Union of Oper-
ating Engineers, AFL–CIO and Plumbers Local
Union # 1 of the United Association of Journey-
men and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Can-
ada. Case 29–CD–601
February 15, 2008
DECISION AND DETERMINATION OF DISPUTE
BY MEMBERS LIEBMAN AND SCHAUMBER
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Tully Construction Co., Inc. (the Employer) filed a
charge on July 5, 2007,1 alleging that the Respondent,
Building, Concrete, Excavating & Common Laborers
Union, Local 731 of Greater New York, Long Island and
Vicinity, Laborers International Union of North America
(Laborers), violated Section 8(b)(4)(D) of the Act by
threatening to engage in proscribed activity with an ob-
ject of forcing the Employer to assign certain work to
employees the Laborers represents rather than to em-
ployees represented by Plumbers Union Local #1, United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States
and Canada (Plumbers). A hearing was held on Septem-
ber 24 and October 9 before Hearing Officer James P.
Kearns. Initially, Local 15, International Union of Oper-
ating Engineers, AFL–CIO (Engineers) was not a party
to this matter and did not receive a Notice of Hearing.
After the hearing commenced and the Plumbers took the
position that it had jurisdiction over part of the disputed
work that was being performed by Engineers-represented
employees, the hearing was adjourned and the Engineers
was given an opportunity to intervene in this matter.
When the hearing resumed, the Engineers intervened and
fully participated in the proceeding. After the hearing
was completed, the Employer, the Engineers, and the
Plumbers filed posthearing briefs.2
The National Labor Relations Board affirms the hear-
ing officer’s rulings, finding them free from prejudicial
error. On the entire record, the Board makes the follow-
ing findings.3

1 Unless otherwise indicated, all dates refer to 2007.
2 The Laborers did not file a posthearing brief.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
I. JURISDICTION
The Employer, a New York corporation, is engaged in
the business of providing general construction services.
During the 12-month period preceding the hearing, a
representative period, the Employer, in conducting its
business, purchased and received goods valued in excess
of $50,000 directly from points located outside the State
of New York. The parties stipulated, and we find, that
the Employer is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that the Labor-
ers, the Engineers, and the Plumbers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The parties stipulated that the Employer has at all ma-
terial times been a subcontractor performing work at the
Fresh Kills landfill in Staten Island, New York. A por-
tion of the work being done by the Employer at the job-
site includes the installation and fusing of high density
polyethylene (HDPE) pipe for the removal of methane
gas. The parties stipulated that this is the work in dis-
pute. The parties also stipulated that the Employer is
signatory to a collective-bargaining agreement with the
Laborers, which is effective from July 1, 2006, to June
30, 2012, to a collective-bargaining agreement with the
Engineers, which is effective from July 1, 2006, to June
30, 2010, and to a collective-bargaining agreement with
the Plumbers, which is effective from July 1, 2004, to
June 30, 2007.
In either late March or early April, the Employer as-
signed the work of installing and fusing the polyethylene
pipe to a composite crew consisting of employees repre-
sented by the Laborers and employees represented by the
Engineers.
Before the assignment of work was made, Thomas
Kempf, business agent for the Plumbers, approached
Edward Segali, the Employer’s project manager, at the
Fresh Kills jobsite. Segali and Kempf discussed the pos-
sibility of adding a Plumbers-represented employee to
the crew to operate the fusion welding machine. Segali
testified that the assignment of the disputed work was
made after the Employer reviewed its respective collec-
tive-bargaining agreements with each Union and deter-
mined that it was contractually obligated to assign the
work to employees represented by the Engineers and the
Laborers.

sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD108
Segali testified that the fusing work is currently being
performed by one Laborers-represented employee and
one or two Engineers-represented employees. An Engi-
neers-represented employee is primarily responsible for
maintaining the fusion machine and operating that ma-
chine to fuse together sections of pipe. The Laborers-
represented employee assists the operator by placing pipe
into the fusion machine, removing the fused pipes, pre-
paring the trench to receive the pipe, placing the pipe into
the trench, backfilling the trench, and compacting the soil
around the pipe.
For larger pieces of pipe, the Laborers-represented
employee works in conjunction with a second Engineers-
represented employee. The latter operates heavy equip-
ment to move the pipe to the machine for fusing, to re-
move the fused sections of pipe from the machine for
installation in the trench, and to dig the trench. The La-
borers-represented employee directs the operator of the
heavy equipment in placing the pipe in the trench and
manually assists in backfilling ditches created by the
heavy equipment.
From time to time, the Laborers-represented employee
may operate the fusion machine if the Engineers-
represented employee is not immediately available. The
Laborers-represented employee may also operate a small,
hand-operated fusion machine that is used for small di-
ameter pipe. Segali testified that if a Plumbers-
represented employee were to be added to the current
crew for the purpose of performing the fusing operation,
the Engineers-represented employee would still be re-
sponsible for the maintenance and repair of the fusion
machine. Also, the Laborers-represented employee
would still perform the manual work related to placing
the pipe in the fusion machine, removing the pipe from
the machine, placing it in the trench, backfilling, and
compacting the soil.
In May, the Laborers and the Plumbers separately filed
for arbitration under their collective-bargaining agree-
ments, laying claim to the disputed work. On May 23
and 24, respectively, each received a decision in its fa-
vor. In light of these decisions, on July 2 the Employer’s
attorney wrote the Laborers’ attorney, referencing the
competing arbitration awards, and asking whether the
Laborers would agree to an assignment of all or part of
the disputed work to the Plumbers-represented employ-
ees. On July 3, the Laborers’ attorney warned the Em-
ployer that if it reassigned the disputed work to the
Plumbers-represented employees, the Laborers would
engage in a work stoppage and picket at the jobsite.
B. Work in Dispute
Consistent with the parties’ stipulation, the notice of
hearing describes the work in dispute as follows:
The installation and fusing of high density polyethylene
pipe for removal of methane gas from capped landfills
at landfills 6 and 7 of the Fresh Kills landfill in Staten
Island, New York.
C. Contentions of the Parties
The Employer contends that there are competing
claims to the work, and that there is reasonable cause to
believe that the Laborers violated Section 8(b)(4)(D) of
the Act because that union threatened economic action if
the Employer reassigned any part of the work being per-
formed by employees it represents to employees repre-
sented by the Plumbers.
The Employer asserts, and the parties stipulated, that
there is no agreed-upon method of resolving the dispute.
While the Engineers and the Plumbers are parties to such an
agreement, the New York joint plan, the Laborers is not.
On the merits, the Employer asserts that the disputed
work should be awarded to employees represented by the
Laborers and the Engineers based on collective-bargaining
agreements, the Employer’s current assignment of the
work, preference, and past practice, relative skills and
training, and economy and efficiency of operations.
The Engineers contends that the work was properly
and appropriately assigned by the Employer to its em-
ployees represented by the Engineers and the Laborers.
The Engineers urges the Board to uphold the assignment
based on the collective-bargaining agreements, the Em-
ployer’s current assignment of the work, preference and
past practice, economy and efficiency of operations, area
and industry practice, and relative skills and training.
The Plumbers contends that the collective-bargaining
agreements, area and industry practice, relative skills,
economy and efficiency of operations, and the Em-
ployer’s past practice weigh in favor of assigning the
disputed to work to employees it represents. The Plumb-
ers also contends that the Employer’s preference is un-
reasonable and should not be accorded any weight.
D. Applicability of the Statute
Before the Board may proceed with determining a dispute
pursuant to Section 10(k) of the Act, it must be established
that reasonable cause exists to believe that Sec-
tion 8(b)(4)(D) has been violated. This requires a finding
that there is reasonable cause to believe that there are com-
peting claims to disputed work between rival groups of em-
ployees and that a party has used proscribed means to en-
force its claim. In addition, the Board must find that the
parties have not agreed upon a method for voluntary ad-
justment of the dispute. See, e.g., Bricklayers (Cretex Con-
struction Services), 343 NLRB 1030, 1031 fn. 2 (2004).
LABORERS LOCAL 731 (TULLY CONSTRUCTION CO.) 109
1. Competing claims for the work in dispute
The parties do not dispute that there are competing
claims for the work. At all times, the Engineers, the La-
borers, and the Plumbers have claimed this work for em-
ployees represented by their respective Unions. Further,
the Laborers and the Plumbers expressly claimed the
disputed work by separately taking this matter to arbitra-
tion under their respective collective-bargaining agree-
ments. Both Unions received favorable arbitration deci-
sions. Accordingly, there is reasonable cause to believe
that there are competing claims to the disputed work.
See Bakery Workers Local 205 (Metz Baking Co.), 339
NLRB 1095, 1097 (2003).
2. Use of proscribed means
The parties do not dispute that there is reasonable
cause to believe that a party used proscribed means to
enforce its claim to the work. The parties stipulated that
the Laborers, through its attorney, threatened to engage
in a work stoppage and picket the jobsite if the work
were reassigned to employees represented by the Plumb-
ers. It is well established that such a threat establishes
reasonable cause to believe that the Laborers used pro-
scribed means to enforce its claim to the work. Operat-
ing Engineers Local 150 (Patten Industries), 348 NLRB
672, 674 (2006); Cretex, supra, 343 NLRB at 1032; La-
borers Local 1359 (Krall’s Masonry), 281 NLRB 1034,
1035 (1986).
3. No agreed-upon method for voluntary
resolution of dispute
The parties stipulated, and we find, that there was no
agreed-upon method for the voluntary resolution of this
dispute that would bind all parties.
For these reasons, we find reasonable cause to believe
that Section 8(b)(4)(D) has been violated, and that the
dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Colum-
bia Broadcasting), 364 U.S. 573 (1961). The Board has
held that its determination in a jurisdictional dispute is an
act of judgment based on common sense and experience,
reached by balancing the factors involved in a particular
case. Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making a deter-
mination of this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of a Board certification concern-
ing the employees involved in the dispute. The Em-
ployer is signatory to separate collective-bargaining
agreements with all three Unions. The Laborers’ collec-
tive-bargaining agreement contains specific language
which covers “the fusing and joining of all plastic pipe”
and also covers “installing, handling, loading, unloading,
placing, hooking, unhooking, lowering into ditch, align-
ing, leveling, and jointing of corrugated pipe, concrete
pipe, plastic pipe.” The Engineers’ collective-bargaining
agreement covers the “handling, installation, jointing,
coupling of all permanent steel and plastic pipe as cus-
tomarily performed by Local 15” as well as the work of
“installing, repairing, maintaining, dismantling” all
equipment including “fusion coupling machines.”
The Plumbers’ collective-bargaining agreement pro-
vides that “all piping and equipment for natural and
manufactured gas” shall be performed exclusively by
Plumbers-represented employees. It also provides that:
all piping pertaining to plumbing including plain end
I.P.S. sleeves shall be handled, cut threaded, joined, fab-
ricated, etc. and installed by Local No. 1 Journeymen
and Apprentices . . . and [w]elding and/burning pertain-
ing to plumbing . . . shall be done on the job or in the
shop by Journeymen members of Local Union No. 1.
When questioned at the hearing the Plumbers’ agent,
Kempf, testified that although there is no reference to the
“fusing” of pipe “in particular” in the Plumbers’ collec-
tive-bargaining agreement, the agreement does generally
refer to “all welding and pipe.”
Although the language of the Plumbers’ collective-
bargaining agreement arguably covers the work in dispute,
the language of the Laborers’ and the Engineers’ collec-
tive-bargaining agreements specifically claims such work.
Accordingly, we find that the factor of collective-
bargaining agreements slightly favors an award to em-
ployees represented by the Laborers and the Engineers.
2. Employer preference, assignment, and past practice
The Employer’s representative, Segali, stated that the
Employer prefers to assign the work in dispute to em-
ployees represented by the Engineers and the Laborers,
and has assigned the work to its employees represented
by those unions.
The Employer presented evidence that, in the past, it
has used Engineers-represented employees, and not
Plumbers-represented employees, to perform fusion
welding on its projects. Segali testified that on the eight
landfill projects involving the fusion and installation of
HDPE pipe where he was the Employer’s project super-
intendent, such work was performed by a team of Labor-
ers–represented employees and Engineers-represented
employees but not Plumbers-represented employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD110
Segali stated that the Employer employed a Plumbers-
represented employee on a 1996–2001 slurry wall project
at Fresh Kills, but further testified that this employee
worked with flanged connections. When asked whether
there was a Plumbers-represented employee on the fu-
sion and installation crew at that project, he replied that
there was a “plumber on that operation.” It is unclear
from the record whether he was referring to the entire
slurry wall operation or simply the fusion and installation
portion of the operation.
James Bushey, an Engineers-represented employee
who was hired by the Employer to operate and maintain
a fusion welding machine for 6 months on the slurry wall
project, testified that the Plumbers-represented employee
employed on that project spent his time working in a
manhole and never assisted with the plastic fusion por-
tion of the work. However, the Plumbers’ agent, Kempf,
testified that Plumbers-represented employees did per-
form fusion welding on the slurry wall project. Kempf
stated that while he had no personal knowledge of this,
he was told this by Plumbers-represented employees who
worked on that project. We find that, even if there was a
Plumbers-represented employee on the slurry wall pro-
ject performing the plastic fusion work, this sole excep-
tion does not outweigh the Employer’s stated preference,
current assignment, and the remainder of its past prac-
tice. Elevator Constructors Local 2 (Kone, Inc.) 349
NLRB 1207, 1210 (2007).
Accordingly, the factors of employer preference, cur-
rent assignment, and past practice favor an award to em-
ployees represented by the Laborers and the Engineers.
3. Area and industry practice
James Bushey, the Employer’s Engineer-represented
employee, testified that he has been performing fusion
welding on plastic piping since 1988 in the Bronx, West-
chester, and Manhattan, and has performed such work
inside property lines, without challenge, utilizing and
operating the fusion welding machine. John Pedone, a
maintenance foreman and member of the Engineers, tes-
tified that he worked for approximately 3 years, starting
in 2001, on a project at the Pennsylvania Avenue Land-
fill in Brooklyn where HDPE pipe was joined using a
fusion welding machine and installed in a gas extraction
system. On that job, he observed an Engineers-repre-
sented employee operate the fusion welding machine on
a daily basis to fuse plastic pipe. There was no Plumb-
ers-represented employee on the crew, and there were no
jurisdictional disputes over running the fusion machine.
Richard Dougherty, a member of the Laborers, testi-
fied that in 1996, for about 1-1/2 years, he worked on a
project at the Edgemere landfill in Queens which re-
quired the fusion and installation of plastic pipe used to
extract gas from the landfill. He worked with an Engi-
neers-represented employee, who ran the fusion machine.
No Plumbers-represented employees worked on the crew
fusing HDPE.
Employees represented by the Plumbers, in combina-
tion crews with one Laborers-represented employee and
one Engineers-represented employee, performed fusion
welding and installation of HDPE pipe at the Fresh Kills
Landfill from 1994–1995 in sections 3/4 for a contractor,
Patosa Bros., and from 1995–1996 in sections 2/8 for a
subcontractor, Frederick Harris, and a general contractor,
Interstate. At the time of the hearing, composite crews of
Plumbers-represented employees, Laborers-represented
employees, and Engineers-represented employees were
still performing maintenance work for G. D. Barry, a
subcontractor, and Shaw, a general contractor, on sec-
tions 3/4 and 2/8. That work required the Plumbers-
represented employee on the crew to fuse HDPE pipe.
The Plumbers’ agent, Kempf, testified that, in 1991,
Plumbers-represented employees performed HDPE pipe
fusion in connection with the installation of gas extrac-
tion systems at Oak Beach and Port Richmond sewage
plants in Staten Island.
Because the evidence shows that employees repre-
sented by the Engineers, the Laborers, and the Plumbers
perform work of the type in dispute here, we find that the
factor of area and industry practice does not favor an
award of the disputed work to employees represented by
any of the Unions.
4. Relative skills and training
Segali testified that the employees represented by the
Engineers and the Laborers, who are currently perform-
ing the disputed work at the Fresh Kills landfill project,
are certified by the manufacturer of the HDPE pipe to do
such fusion work. Segali testified that the Employer is
satisfied with the work already done and that all of the
HDPE pipe welds made by Engineers-represented em-
ployees and Laborers-represented employees already on
the job have passed inspection and pressure testing.
Kempf testified that Plumbers-represented employees
are also certified to weld pipe using a fusion machine and
spend 85 to 90 percent of their 5-year apprenticeship
performing piping work. Although the Plumbers con-
tends that the disputed work is a key aspect of the trade
of Plumbers-represented employees, it has not offered
any evidence to show that Engineers-represented em-
ployees are unqualified to perform the disputed work.
See Sheet Metal Workers Local 19 (E. P. Donnelly, Inc.),
345 NLRB 960 (2005) (despite assertion that disputed
work was “cornerstone task” and evidence of indepth
training presented by contesting union, the Board held
that this factor favored none as members of both groups
LABORERS LOCAL 731 (TULLY CONSTRUCTION CO.) 111
were sufficiently trained to meet demands of work in
dispute).
On this record, we find that employees represented by
the Engineers, the Laborers, and the Plumbers have the
skills and training necessary to perform the work in ques-
tion. Accordingly, the factors of relative skills and train-
ing do not favor an award to employees represented by
any of the Unions.
5. Economy and efficiency of operations
The Employer asserts that it is more economical and
cost efficient to assign the disputed work to Laborers-
represented and Engineers-represented employees than to
employees represented by the Plumbers. According to
the Employer, the current crew of Laborers-represented
and Engineers-represented employees can perform all the
disputed work, but assigning the work to Plumbers-
represented employees would require the use of an addi-
tional employee and thereby increase the Employer’s
labor costs. In this regard, the Employer contends that
if the fusion welding work were awarded to employees
represented by the Plumbers, the Employer would still
need to employ a Laborers-represented employee to
move the pipe; perform the trenching work, the backfill-
ing work, and the soil compaction; and to direct the
heavy equipment operator in moving sections of pipe and
placing them in the trenches. The Employer also argues
that it would still need one Engineers-represented em-
ployee to maintain and repair the fusion machine, and
another Engineers-represented employee on an “as-
needed” basis to operate heavy equipment.
Plumbers’ agent Kempf conceded at the hearing that
an Engineers-represented employee would be the proper
person to perform maintenance and repair work on the
fusion machine. However, the Plumbers claims that the
Employer also could utilize that single Engineers-
represented employee to run the heavy equipment on an
“as needed” basis instead of employing a second Engi-
neers-represented employee to do so. As a result, the
Plumbers argues, the Employer could then hire a Plumb-
ers-represented employee and still maintain a three-
member crew, a move that would allegedly save money
because Plumbers-represented employees are paid less
than Engineers-represented employees.
We reject the Plumbers’ contentions. First, the
Plumbers’ cost-savings argument appears to be based in
part on the difference in wage rates between the two
groups of employees ($110 per hour for the Plumbers vs.
$115 per hour for the Engineers). However, the Board
does not consider wage differentials as a basis for award-
ing disputed work. Longshoremen ILA Local 1242 (Rail
Distribution Center), 310 NLRB 1, 5 fn. 4 (1993). More-
over, no evidence establishes that a single Engineers-
represented employee could, in fact, perform the addi-
tional “as needed” work on the heavy equipment. The
evidence does reflect, however, that the Plumbers-
represented employee could do only a small portion of
the work (i.e., the work in dispute) performed by the La-
borers and Engineers-represented employees. Conse-
quently, the Plumbers-represented employee would
spend a substantial amount of time doing nothing be-
tween fusing operations.4
In the above circumstances, we find that the factors of
economy and efficiency of operations favors awarding
the disputed work to employees represented by the La-
borers and the Engineers.
Conclusion
After considering all the relevant factors, we conclude
that employees represented by the Laborers and the En-
gineers are entitled to continue performing the work in
dispute. We reach this conclusion relying on the factors
of collective-bargaining agreements, employer prefer-
ence, current assignment and past practice, and economy
and efficiency of operations. In making this determina-
tion, we award the work to employees represented by
Laborers and Engineers, not to those labor organizations
or to their members. The determination is limited to the
controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Tully Construction Co, Inc., represented
by the Building, Concrete, Excavating & Common La-
borers Union, Local 731 of Greater New York, Long
Island and Vicinity, Laborers International Union of
North America, and by Local 15, International Union of
Operating Engineers, AFL–CIO, are entitled to perform
all work involved in the installation and fusing of high
density polyethylene pipe for removal of methane gas
from capped landfills at landfills 6 and 7 of the Fresh
Kills landfill in Staten Island, New York.

4 Kempf testified that the Plumbers-represented employees could
also physically place the pipe into the fusion machine, or rig the large
pipe to the backhoe so that it could be placed in the fusion machine.
However, the Laborers-represented employees, who are currently per-
forming the work of lifting and rigging the pipe, would still be on the
crew even if the Plumbers-represented employees were awarded the
work in dispute. Thus, it is does not appear that any willingness on the
part of the Plumbers-represented employees to move the pipe would
increase the economy and efficiency of operations.