Local 5, Plumbing and Pipe Fitting Industry, Etc.

National Labor Relations Board - Board Decisions

Feb 7, 1964

145 N.L.R.B. 1580 (N.L.R.B. 1964)

1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
default by pointing out that in its meeting with the employees . when the sub-
contracting operation and the consequent discharge of the driver-salesmen was.
already a fait accompli, neither the Union nor the employees sought to bargain
concerning that action." I conclude, in short, that the Company which violated
the Act on February 9 effectively cured that violation on February 26, and that it
would not effectuate the policies of the Act to issue any remedial order.5 Cf. Carl
Rochet and Charles Rund, partners, doing business as The Renton News Record,
et al., 136 NLRB 1294, 1297-1298; Motoresearch Company and Kems Corporation,
138 NLRB 1490.
CONCLUSIONS OF LAW
1. Respondent is engaged in activities affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent has engaged in no unfair labor practices which warrant the issuance
of a remedial order.
RECOMMENDED ORDER
The complaint herein should be, and hereby is, dismissed.
c As Respondent has only two employees in Its Racine plant, a further violation of simi-
lar nature is not to be anticipated , and a cease -and-desist order is therefore not warranted.
Local 5, United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States
and Canada , AFL-CIO and Arthur Venneri Company. Case
No. 5-CD-42. February 7, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed on May 6, 1960, by Arthur Venneri Company, herein
called Venneri or the General Contractor, alleging a violation of Sec-
tion 8(b) (4) (D) by Local 5, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the,
United States and Canada, AFL-CIO, herein called the Respondent,.
Local 5, or the Plumbers. A hearing was held before Hearing Officer
Edward J. Gutman on August 29, 1960, at Washington, D.C. All
parties participated in the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to adduce
evidence bearing on the issues.
On February 19, 1962, the Board issued an Order reopening the
record and remanding the proceeding for further hearing, for pur-
poses of receiving evidence to enable it to make a determination of
dispute consistent with the principles contained in the decision of
the United States Supreme Court in N.L.R.B. v. Radio d Television
Broadcast Engineers Union, Local 1212, International Brotherhood
of Electrical Workers, AFL-CIO (Columbia Broadcasting System).'
A further hearing upon due notice to all parties was held before
Hearing Officer David Sachs on various dates between September 24,
1962, and March 29, 1963. All parties who appeared were afforded
1364 U.S. 573.
145 NLRB No. 157.
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC. 1581
full opportunity to be heard, to examine and cross-examine witnesses,
and to adduce evidence. The Board has reviewed the rulings of the
Hearing Officers made at the hearings and finds that they are free
from prejudicial error; the rulings are hereby affirmed. After the
close of the hearing, briefs were filed by Respondent Local 5; by
Local 456 of the International Hod Carriers', Building and Common
Laborers' Union of America, and Laborers' District Council of
Washington, D.C., jointly, herein called Local 456, the Laborers'
Council, or the Laborers; by Arthur Venneri Company, the Charg-
ing Party; and by Master Builders Association, appearing as amzieus
Curiae.
Upon the entire record in the case, the Board makes the following
findings :
1. Arthur Venneri Company, a New Jersey corporation, is an em-
ployer engaged in commerce within the meaning of the Act.
2. Local 5, United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO ; Local 456 of the International Hod Carriers',
Building and Common Laborers' Union of America; and Laborers'
District Council of Washington, D.C., are all labor organizations
within the meaning of the Act.
THE DISPUTE
A. The nature of the quarrel
In general terms this case presents a quarrel between laborers, im-
mediately represented by Local 456, and plumbers, represented by
Local 5, over the laying of nonmetallic pipe (concrete, terra cotta,
vitrified clay, etc.), and cast iron pipe beneath ground surface at
varying depths. Pipe of this kind is used in connection with building
construction, roads and highways, airports, army camps, school
grounds, hospitals, and other developed terrain. It generally serves
three purposes : (1) to carry away sewage and refuse from buildings
and dwellings-called sanitary pipe; (2) to carry away surface
waters, such as rain from building roofs and ground accumulations-
called drainpipe; and (3) to bring clear water for all purposes to
buildings and structures. Pipe serving the first two purposes is
largely made of concrete, clay, terra cotta, and any combination of
these materials; pipe bringing water is usually made of cast iron or
other metals.
When pipe of any kind is laid or installed within a building struc-
ture proper, the work is always performed by plumbers and there is
no question as to their right to continue doing it; whenever pipe is
laid on a public road, or highway, or street, the work is performed
by laborers, and they continue to do this undisturbed. The question
1582 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arises when pipe must be laid between these two clear extremes-on
ground which is literally outside a building but not as far away as
"public" streets or highways , i.e., on ground which is "owned" by
some entity - or other, whether it be -a private houseowner, a com-
mercial land developer , a municipality , or the Federal Government,
such as Andrews Air Force Base in Maryland. In this instance, the
dispute arose at Andrews Field over the laying of pipe outside two
hangars, but nevertheless within the periphery of the base as a whole.
The dispute as presented is concerned practically with a matter of
geography , rather than special skills or job classifications; the record
therefore contains extended disputations between the contending
Unions of what meaning should be given such terms as "public,"
"private," "property line," "street," "plumbing system," "outside,"
and the like.
Under the principles enunciated in the OBS decision , Section 10 (k)
of the Act imposes upon this Board the duty to decide on the merits
work disputes between competing groups of "employees" and to make
definitive assignments to one or the other "employee" group . In this
case, however, the dispute was comprehensively litigated not only in
terms of what classification of employees is entitled to the work, but
also in terms of what classification of employer, or contractor, has a
right to bid upon and to contract to do the work, together with the
concomitant privilege of hiring employees of his choice or custom.
Within the Greater Washington , D.C., area, which includes Andrews
Field, there are two contractor groups , the Mechanical Contractors
Association , herein called MCA , whose members do inside plumbing
or piping work, i.e., within the building structure itself, and utility
contractors , whose members do street and highway excavation and
who lay pipe in open areas adjacent to buildings, called outside
utilities . The work in dispute was included in a subcontract awarded
to Nickles Bros. , Inc., an outside utility contractor who employs la-
borers represented by Local 456; the inside pipework was included
in a subcontract awarded to Akron Mechanical Contractors, Inc.,
a plumbing concern whose employees in the plumber classifications
are represented by Respondent Local 5. Akron was not a member
of MCA at the time of the transactions giving rise to this case, but it
had a labor agreement with Respondent which was identical in terms
with the current MCA agreement . For reasons which will be set
out below , the Plumbers contend that Akron should not have agreed
to limit his contract to the inside pipework , and, conversely , that it
was wrong for the general contractor to assign the outside pipe-
laying work to Nickles . In a substantial sense , therefore , the quest
tion here is not only one between plumbers and another classification
of workmen , but 'also between contending employer groups. Much
of the unduly extended record is devoted to conflicting contentions
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC. 1583
respecting the appropriate employer, or subcontractor; to that ex-
tent the parties departed from the true jurisdictional dispute between
competing groups of employees, which is the sole question for deter-
mination by this Board under Section 10(k) of the Act.
Another aspect of the case to be clarified at the outset is that even
in terms of employees involved, to a large degree the dispute as
presented does not set one true class of employees against another.
As stated above, Nickles employs laborers who are members of Local
456; when Akron contracts to do this type of work-as he and the
members of the Mechanical Contractors Association often do-he uses
laborers from Local 115 to perform many of the operations neces-
sary for laying the pipe. Therefore, we are dealing here, in part, with
a dispute between two groups of laborers having the same kind of
skill, training, and experience, but who are members of different locals
of the same International union.
B. The disputed work tasks
The nonmetallic pipe involved varies in dimensions, the diameter
increasing as it runs from initial installation point to successive
joiners with other feed-in lines and eventually empties into a final
disposal location. This is true of both sanitary, or sewer, lines car-
rying sewage, and of drainpipe drawing surplus and other waters
away from land areas and rooftops. The methods and the problems
met in laying this pipe vary somewhat, depending upon the pipe size,
the technique of joining the ends, the type of soil encountered, the
lay of the terrain, and other such factors. The details of these
variations are not of material significance to the issue because basi-
cally such work changes little. Trenches are excavated, mostly with
heavy digging equipment such as back hoes, claws, or mechanical
shovels; these are run by operating engineers without regard to what
employees lay the pipe or what type of a contractor employs them.
Sometimes the ditch requires shoring, with wood or metal; sometimes,
as through open fields, the ditch is cut at a wide angle and the
pipe simply rolled down into it. With hand shovels the trench is
then leveled as indicated, to align it to the appropriate grade for the
down$ow of water, and to conform the foundation of the ditch with
the circumference of the pipe, and with the bells at one end of each
piece of pipe into which another is inserted to make a joint. The pipe
is "strung" along the side of the ditch, in preparation to actual laying;
small pipe, such as 4-inch or 6-inch, or even somewhat larger, is
handed down from one man to another; larger pipe, some of it as
much as 108 inches in diameter, is raised from the rim of the trench
by sling attached to heavy moving equipment, again operated by
operating engineers, and eased gently down.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the trench, each successive piece of pipe is shoved home into its
predecessor. This is most often done by pushing it with a bar, a piece
of metal, or wood, so that the spigot end is inserted into the bell end.
With very heavy pipe a jack is sometimes used. The joint is made in
many ways, depending upon the form of pipe; most often concrete or
other types of clay pipe are joined with simple cement. Sometimes
the cement is placed in the spigot end while the pipe is still on the
edge of the trench; more often the cement is mixed near the trench,
handed down with a pail to an employee in the bottom of the ditch,
and then applied with a trowel, or with the hands and rubber gloves.
Many joints are wedded with a diaper, a heavy muslin wrapped
all around the joint to hold the cement in place. Cast iron pipe is
sometimes joined by bolts, creating what is called a mechanical joint,
and sometimes by use of molten lead. Once laid, the elevation of the
pipe is checked for correct leveling. The setting, or leveling, is done
by a civil engineer employed by the general contractor or by the
utility contractor himself, or some qualified employee of his, or, when
a plumbing contractor has the work, by an experienced plumber fore-
man. From the engineer's line batterboards, or grade stakes, are set,
with a dropline into the trench. Finally, the trench is refilled. This
is done both by hand shovel and by heavy equipment, again operated
by engineers, depending upon the size of the trench. There may then
be some tamping to establish necessary firmness of the soil.
All this operation is a continuous one. Every attempt is made to
lay the pipe and refill the trench quickly as the work moves along in
order to lessen the danger of collapsing walls, or rainfall changing the
contour of the trench and base.
When either the general contractor on a project, or a utility sub-
contractor who bids for the outside utilities, does this pipelaying work,
he uses laborers, most frequently hired through Laborers Local 456
or Laborers Local 74, and usually pursuant to contract with those
unions. When this same work-the heart of the jurisdictional dis-
pute in this case-is included in a subcontract to a mechanical con-
tractor, it is performed by plumbers from Local 5 and laborers from
Laborers Local 115. For excavating the trenches, mechanical con-
tractors either use their own heavy digging machinery, or in turn
arrange for excavating subcontractors to do it for them. They dis-
tribute the rest of the work between their laborers and their plumbers.
There is a certain amount of conflict in the record as to the extent
to which mechanical contractors use laborers. Clearly, the rounding
out of the trench with pick and shovel, much of the shoring of trench
walls, the refilling of ditches, and the tamping of ground after the
pipe is laid, is given to laborers to do; clearly, also, the proper fitting
of one pipe into another, the making of the joints with cement or
molten lead, the alignment of the pipe to perfect grade, is work given
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC. 1585
to plumbers. To what extent mechanical contractors use laborers to
help carry pipe from one place to another, to heft it into a ditch, to tie
and untie slings when the pipe is lifted mechanically, and to mix
cement and hand it down into the ditch, was much disputed by many
witnesses.
Within the Greater Washington, D.C., area, which is the territorial
concern of the parties to this proceeding, a not inconsiderable amount
of this outside utility pipelaying work has been, and is being, per-
formed by nonunion employers and nonunion employees, both laborers
and plumbers.
C. Evidence of illegal conduct
As a general contractor working directly for the United States
Army Corps of Engineers, Venneri was responsible for the construc-
tion of two airplane hangars and certain work on surrounding areas
at Andrews Field. He awarded to Akron, the mechanical contractor,
all pipework within the hangars, to a point about 5 feet outside the
buildings. He awarded to Nickles, the utility contractor, work in-
cluding digging the ditches for and laying concrete and other non-
metallic pipe for sewage and draining purposes, and a certain amount
of cast iron water pipe adjacent to the building.
Akron presently signed the area contract which Plumbers Local 5
has with MCA. Clause 32 of article 17 of that agreement reads as
follows :
It shall be a violation of this agreement for any contractor to
contract for a job where plumbing work has been withheld from
the plumbing contract by either the owner or general contractor
for the purpose of being installed by other than journeymen
plumbers and their apprentices.
Plumbing work . . . shall include the installation of all non-
metallic sewers within the property line including both sanitary
and storm as well as drain tile.
To protect the fact that Akron's contract with Venneri did not also
include the outside utility pipework, Local 5, through its authorized
agents, resorted, to certain conduct; testimonial and documentary
proof respecting that activity was received at the hearing in Case No.
5-CC-124.2 The evidence received in that proceeding was, by stipula-
2 The complaint in Case No . 5-OC-124 alleged that Local 5 had engaged in inducement,
coercion , and strike activity in consequence of the limited contract Akron undertook, and
thereby violated Section 8 ( b) (4) (1) and ( ii) (B) of the Act, which proscribes secondary
boycotts The Board found against Local 5 (137 NLRB 828), and its cease-and-desist
order was enforced by the Court of Appeals for the District of Columbia Circuit, with a
minor modification not significant here. Local No. 5, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO (Arthur Venneri Co .) v. N.L R B., 321 F. 2d 366, cert . denied 375
U.S. 921.
734-070-64-vol. 145-101 -
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the parties, made part of the present record for purposes of
this determination.
Shortly before the Andrews Field dispute erupted, Venneri had
met a like problem at the National Institutes of Health in a Washing-
ton suburb, and the matter was settled. Shortly thereafter, but still
in 1959, DeChard, -a Local 5 business agent, reminded Venneri of the
"trouble" at N.I.H. and said Venneri "should try not to have this
trouble again." DeChard gave similar advice to Grossman, president
of the Akron Company. After the subcontracts here in question had
been awarded, there was a conference in Venneri's office, attended by
Venneri, DeChard, Local 5 Business Manager Rhodes, and Grossman.
Rhodes accused Veimeri of breaking a promise not to award outside
utility work to Nickles, or any outside utility contractor; Venneri
denied having so promised. Rhodes then said : "There is no compro-
mise. You either have to use plumbers or you will not get men to do
the job. You will not get men to do your mechanical work." Rhodes
admitted that later he was at the jobsite with Martin, business agent
of Pipefitter Local 602, when Martin told plumber employees of
Grunley-Walsh, another general contractor at Andrews Field, not to
move pipe destined for the Venneri hangars on which Akron was to
work. Rhodes also admitted that the plumbers had previously been
instructed not to work; he added that the plumber members of Local
5 followed his instructions. Rhodes also testified that he instructed
plumbers working for other contractors at Andrews Field not to ac-
cept transfer to Akron's project on the hangars, and that Akron's
request for direct referral of plumbers was denied by Local 5. The
evidence also shows that members of Local 5 in fact refused to unload,
move, or fabricate pipe delivered to the Grunley-Walsh jobsite.
In an effort at appeasement, Nickles offered part of the work cov-
ered by his contract-certain caulking and making of joints on cast
iron pipe-to Local 5 plumbers. That Union refused to furnish men.
The work then proceeded with laborers from Local 456 performing
it all.
CONTENTIONS OF THE PARTIES
Both the Laborers and the Plumbers advance many grounds on
which they argue the disputed work should be awarded to them,;
these will be considered below. In addition, Local 5 moved that the
notice of hearing be quashed on the ground that the record does not
reveal the existence of a jurisdictional dispute within the meaning of
Sections 8 (b) (4) (D) and 10 (k) of the Act.
The two subcontractors, Nickles and Akron, were not represented at
the hearing and, therefore, apart from what may be inferred from
their actions at the time of the events, there is no direct statement
of position on their behalf. Venneri, the general contractor who
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC. 1587
filed the charge, and Master Builders Association, of which Venneri
is a member, filed briefs after the close of the hearing. In general,
Venneri adopts the arguments of Laborers Local 456, and, with re-
spect to this particular situation at least, justifies assignment of the
work by Nickles to his laborers. Both Venneri and Master Builders
Association, however, also advance a broader contention directed to
clause 32 and the long-standing and widespread practice of the
plumbing subcontractors in the Washington area of doing business
in keeping with the requirements of that clause. The net effect of
their arguments is that these contractors should agree to bid for and
accept subcontracts limited to inside plumbing work despite the fact
that Local 456 laborers are being used for the outside utilities.
There is an equivocation in the contentions of Local 456 and of
Laborers District Council of Washington with respect to both the
extent of their work claims in this case and the reasons advanced to
support them. Clearly they claim the work entailed in the laying and
joining of nonmetallic pipe, and the handling of all pipe, both metal
and nonmetallic; this claim clashes squarely with the conflicting
demands of Respondent Plumbers and therefore calls for decision by
this Board.
As to other portions of the work covered by Nickles' contract, such
as making the joints on cast iron pipe, Nickles invited Local 5
plumbers to come and do it before the dispute erupted. The attorneys
for the Laborers Unions also kept saying throughout the hearing
that this work "belonged" to plumbers, hence no evidence should be
received concerning it, as it was not part of the dispute in this
proceeding. Wanting all Nickles' work, Local 5 of course agreed;
in consequence, every effort was made by all parties to keep evidence
of custom and practice with respect to such work out of this record.
The Laborers' reason for so qualifying their work claims at the
hearing is precisely set out in their brief. These concessions were
offered to the Plumbers on condition that Local 5 would grant two
demands of the Laborers' District Council of Washington, D.C.: (1)
admit the right of Local 456 laborers to do all the work required to lay
and join nonmetallic pipe, and to handle all pipe, and (2) furnish
plumbers to utility contractors to perform joining of cast iron pipe
and certain other work, which the Laborers Union concedes to be
within the Plumbers' jurisdiction, notwithstanding clause 32 of Local
5's agreement with MCA.
In maintaining their own jurisdictional claims to all the work in
question, the Plumbers did not agree to the conditions attached to
the Laborers' concessions. Nevertheless, the net effect of such con-
cessions is to limit the scope of the conflicting work claims which are
before the Board for decision in this proceeding. In the circum-
stances, our Determination of Dispute, infra, does not apply to that
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aspect of the work, covered by Nickles' contract with Venneri, which
Nickles offered to the Plumbers in the first instance.
APPLICABILITY OF THE STATUTE
Section 8(b) (4) (D) of the Act, which the charge in this case ac-
cuses Respondent Plumbers of having violated, prohibits certain
union conduct where "an object thereof" is "forcing or requiring any
employer to assign particular work to employees in a particular labor
organization or in a particular trade, craft, or class rather than to
employees in another labor organization or in another trade, craft,
or class. . . ." And in a Section 10 (k) proceeding, before making
an affirmative award of the work in dispute, the Board is required to
find that there is reasonable cause to believe that Section 8(b) (4) (D)
has been violated by the respondent union. We so find in this case,
notwithstanding the Plumbers' contentions to the contrary.
As detailed above, Respondent admittedly engaged in the type of
conduct proscribed in Section 8(b) (4) (i) and (ii), as the Board and
the court of appeals found in Case No. 5-CC-124. In moving to
quash the Section 10(k) notice of hearing, however, Respondent con-
tends, in substance, that the "object" of its conduct was merely to
redress Akron's violation of clause 32-i.e., by preventing Akron
from performing its contract with Venneri-and not to compel any
of the several employers involved in the case, least of all Nickles, to
"assign" the disputed work to Local 5 plumbers, as opposed to em-
ployees in some other "class." In arguing that no such Section
8(b) (4) (D) objective was present here, Respondent assumes that
Venneri did not, any more than Akron, have the disputed work to
assign, once it had been contracted out to Nickles. With these two
employers eliminated, the argument concludes, only Nickles remains,
and the record shows conclusively that Respondent was not trying to
get him to hire its members.'
We reject the foregoing contentions and deny Respondent's motion
to quash the proceeding. For it is clear that the whole purpose of
clause 32, which Respondent was admittedly attempting to enforce
in this case, is to insure that Local 5 plumbers (and Local 115 labor-
ers) employed by mechanical contractors like Akron will obtain the
particular work which, in this instance, was awarded by Venneri to
3 In this connection , Respondent also contends that there is a fatal variance between
pleadings and proof which requires dismissal of the Section 8(b) (4) (D ) charge filed by
Vennerl, since the charge alleges that the "object" of Respondent 's conduct was to force
Nickles to assign the disputed work to Local 5 Plumbers. This contention is rejected. In
the present case, unlike Local 373, United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States and Canada ( Carleton
Brothers Company ), 137 NLRB 628 , cited by Respondent , the Charging Party itself actually
made the disputed work assignment , in choosing to award the outside pipelaying contract
to Nickles , rather than to Akron or some other plumbing firm under contract with Respond-
ent. Here, too, unlike Carleton, the propriety of the Charging Party's choice , as between
two types of subcontractors and their competing groups of employees, was fully litigated.
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC. 1589
Nickles and his Local 456 laborers instead. Thus, Respondent's ulti-
mate objective, in attempting to enforce clause 32 here, was not merely
to compel Venneri to cancel his contracts with either or both Akron
or Nickles. Rather, it was to force Venneri to transfer Nickles' con-
tract to Akron, or some other employer in compliance with clause 32,
and thereby cause the disputed work to be assigned to Respondent's
members (and laborers of its choice) instead of the Local 456 laborers,
employed by Nickles, who were doing it at the time. The Board has
held consistently, and we adhere to the view, that Section 8(b) (4)
(D) applies to such attempts to force changes in subcontracting ar-
rangements between employers 4
In sum, we find that the jurisdictional dispute in this case is properly
before the Board for determination under Section 10(k) of the Act .5
THE MERITS OF THE DISPIITE
The laying of this concrete and other nonmetallic pipe is a relatively
simple operation, whether it be viewed as part of the highway con-
struction industry or as an extended aspect of building construction.
A good part of the work is always performed by unskilled laborers,
either referred by Local 456 to utility contractors or by Local 115 to
plumbing contractors. Much of it has been performed by employees
of utility contractors in the Greater Washington area, and unques-
tionably Nickles' laborers have performed it adequately and are fully
qualified to continue doing it. The claim of the Laborers in this case
is bottomed largely upon these simple and indisputable facts. The
work was Nickles' to assign; he had a collective-bargaining agreement
with Local 456 which covered it; he put laborers to do it in the regular
course of his business. The Laborers' theory is that there is no dif-
ference in the way this work is done, the skills required, or any other
pertinent consideration, between such pipelaying work in the public
streets and on Government reservations, garden areas of extended
housing developments, school grounds, private streets, etc. In sum,
they insist there is no sufficient, legitimate reason that can justify this
Board in making an affirmative award at variance with the Employ-
er's practical methods in this case.
The Plumbers do not seriously question the laborers' ability to do
the work adequately; they concede that for the most part the skills
required and the methods used in this disputed gray area of pipelay-
ing work are the same as in the case when pipes are laid along the
d See Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO
(Western Electric Company, incorporated ), 141 NLRB 888, and cases there cited in
footnote 6.
5 With all deference for our dissenting colleague's thoughtful reiteration of the position
he set forth in Arthur Venneri Company , 137 NLRB 828 , 834, we adhere to the view
therein expressed by the majority , that Section 8 ( b) (4) (B) and ( D) are not mutually
exclusive.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
public highways and regular streets .6 The Plumbers' principal
grounds for claiming the work in this instance are that the area
practice long has been for them to do it, and that their right has been
recognized by agreement of the International Hod Carriers' Union,
and of the Laborers' District Council of Washington, with each of
which Local 456 is affiliated. The Plumbers also rely upon a number
of determinations by AFL and AFL-CIO jurisdictional authorities.
A third important basis for award now advanced by the Plumbers is
clause 32 in the current MCA contract.
Contracts and Board Certifications
Nickles was the employer with immediate authority to assign the
disputed work; he gave it to laborers from Local 456. The assignment
conformed with Nickles' contract with Local 456, current at the time
of the events. The only other party involved in this proceeding who
was in a position to control work assignments was Venneri, the gen-
eral contractor, who engaged Nickles. His only contract covering
laborers is with Local 74, from which he obtains general labor for his
direct employee complement. Venneri has no contract with Local 5.
It does not appear that any of the employees of either Nickles or
Venneri are represented with respect to this employment by a labor
organization holding a certificate issued by the Board.
The plumbers, as already stated, are covered by contracts between
their Local 5 and Akron, and the MCA group of employers as well.
The latter contract rests upon a Board certification. As the employer-
employee relationship involved here flowed from Nickles to his laborer
employees, however, and the underlying subcontract was awarded to
Nickles by Venneri, neither Local 5's labor agreement with Akron,
nor the Board certification underlying the MCA agreement, has any
substantial bearing upon the question before us.' Accordingly, to
the extent that collective-bargaining agreements in effect are factors
to be considered in making definitive work awards under Section
10(k), the contractual relationship between Nickles and Local 456
would appear to support an assignment in favor of the latter.
Constitutions and Charters
Both the Laborers and the Plumbers rest heavily upon what they
call the general jurisdictional grants conferred upon them in their
original AFL charters, back at the turn of the century. In the begin-
ning, before 1900, there were two AFL chartered unions for plumbers
9 Counsel for Local 5 stipulated on the record that "There is no substantial difference in
skills involved between laying a line in a street and laying the same size , same kind, same
thing inside of a property line."
T By the same token , clause 32 of Local 5's contracts with Akron and the MCA employers
is not relevant in this connection.
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY , ETC. 1591
and pipefitters : The United Association of Journeymen Plumbers,
Gasfitters , Steamfitters , and Steamfitters Helpers of the United States
and Canada , and the National Association of Steam and Hot Water
Fitters and Helpers . As a result, there was a great deal of jurisdic-
tional strife and unrest in the pipefitting industry , and therefore, in
1912, these two organizations were merged into the present United
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada (UA), the
parent of Local 5. In 1903 the original AFL charter was granted to
the International Hod Carriers ' Building and Common Laborers'
Union of America. In its national convention of 1901 , the American
Federation of Labor had resolved that no new union would be estab-
lished or recognized if its jurisdictional claim to work "trespassed"
upon the claims of existing Internationals . From all the foregoing,
from the timing of these events , from the fact that originally the pipe-
fitter unions were concerned with pipework and the hod carrier groups
only with unskilled work, Local 5 and the UA now argue that in no
event can the Laborers in this proceeding legitimately defend claims
to pipelaying work.
The Laborers , in turn , trace their original claim through a number
of old AFL unions which existed between 1900 and 1920, and which,
in one way or another , were combined or defaulted into the present-
day Hod Carriers International . Thus, among other things , there is
evidence that : ( 1) in 1910 the Compressed Air Workers agreed with
the Laborers not to work on tunnels or on shaft foundations where no
compressed,air was used ; (2) in 1911, at the Atlanta convention, the
AFL executive council extended the Laborers ' jurisdiction to include
construction of streets , sewers, and tunnels; (3) in the AFL conven-
tion of 1912 certain rights of the Hod Carriers International over
cement and concrete work were recognized ; (4) in 1917 the Com-
pressed Air Workers and the Foundation Workers were amalgamated
into the Laborers Union; and (5) in 1935 AFL President Green
recommended to the executive council that the Laborers ' claim against
other unions be settled on the basis that "the Laborers ' International
Union had jurisdiction over construction , highway , street repairs,
sewer repairs and street work . . . ."
The total picture of these old events, now vague in memory, am-
biguous in many instances , and frequently inconsistent, sheds no clear
light as to what the official position of the AFL-CIO might be today
respecting the limits of the two competing work claims . The specific
work dispute which gave rise to this proceeding has not been con-
sidered by the Building and Construction Trade Department Joint
Board for the Settlement of Jurisdictional Disputes.
As to the present constitutions of the two unions , the language
appearing in that of the Plumbers unquestionably encompasses the
1592 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work in issue. It details in its coverage virtually every type of pipe
imaginable, "... exclusive jurisdiction over the plumbing and pipe-
fitting industry , including the supervision , fabrication , installation
and maintenance of plumbing and pipefitting installations of every
description and character . . . all piping for . . . sewerage .. .
water mains ... water aqueducts and water lines.. .." There is
language in the constitution and the manual of jurisdiction of the
Laborers , which can also reasonably be viewed as including this work.
"... digging of trenches . . . installation of pipe, gratings and grill
work for drains or other purposes . . . construction of sewers .. .
handling and distribution of water mains . . . and all pipe , includ-
ing handling, mixing and pouring of cement . . . pipelaying , level-
ing and making of the joint of any pipe used for main or side sewers
and storm sewers and all pipe for drainage . . . laying of lateral
sewer pipe from main sewer or side sewer to building or
structure. . . ."
It is clear, both from these documents and from the record as a
whole , that much of this comprehensive language is bottomed upon the
construction which each union places upon old charters and upon a
number of decisions of record in the long history of this dispute.
Each argues there is no basis for the broad coverage appearing in the
basic documents of other union . We need not, and could not resolve
this long-standing controversy . For purposes of decision here, all
that matters is that the charters , constitutions, and other old docu-
ments have not served to adjust or quiet the disagreement.
The underlying dispute has been considered by officials of the two
unions and by arbitrators and referees a number of times and in a
number of places. In 1941, a major effort was made to resolve the
question, and high officials of the two Internationals signed what has
since been called the 1941 Agreement . The right of laborers to lay
sewer and drainpipe in the public streets and highways , and the
right of plumbers and pipefitters of diversified classifications to in-
stall pipe inside building structures was clearly recognized. Be-
tween the two extremes , however-in the area with which the dispute
before us is concerned-the 1941 Agreement is ambiguous on its face.
Unending quarrels over the in-between work have resulted in a long
series of arbitration decisions and diversified but futile attempts to
reach definitive settlement.'
Within 7 months after execution of the 1941 Agreement , it became
necessary to appoint a committee to clarify its meaning ; the four
persons so designated included three members of the original com-
mittee which negotiated it and a Plumber representative who is the
8At the bearing , counsel for the Plumbers admitted on the record : "Ever since execu-
tion of this Agreement , the United Association and the Laborers have had diametrically
opposed views as to its intent and meaning."
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC. 1593
current general president of the UA. The interpretation they placed
on the critical language, as evidenced by their signed statement, reads:
"The installation and the laying of all clay, terra cotta, limestone,
vitrified, concrete or nonmetallic pipe and the making of joints for
main and side sewers and drainage outside of any building or struc-
ture is the work of the laborers. All installations inside the building
or structure shall be the work of the members of the United Associa-
tion." This interpretation was never officially approved by the AFL.
With each union insisting that it was honoring the 1941 Agreement,
while persisting in a reading favorable to its position, there followed,
from that time up to 1960, when this dispute materialized, a long series
of decisions and recommendations by successive boards and commit-
tees. The record before us contains a very large number of such rul-
ings, each union presenting those which support its work claim now.
It would serve no material purpose to attempt to list them all here;
collectively appraised, they do not weigh the balance either way.
The following is but a small random sampling of the earlier opin-
ions. In 1943 a board of review, functioning by agreement between
the Defense Production Department and the Building and Construc-
tion Trades Department of the AFL, considered a dispute involving
the laying of concrete sewer pipe on the grounds, outside the buildings
proper, of a new synthetic rubber plant in Kentucky. In its ruling-
called the Comstock Decision-the review board awarded the work to
the Plumbers. In July 1943, the president of the Building and Con-
struction Trades Department awarded to plumbers the laying of sewer
and water mains and the making of joints for nonmetallic water mains
at a jobsite in Saginaw, Michigan. In April 1944, this same agency
awarded to plumbers the installation of outside sanitary and storm
sewers in disputes that arose in Pennsylvania and New Jersey. In
1948 a national referee of the Building and Construction Trades De-
partment considered the laying of nonmetallic pipe as outside utility
on the grounds of a multiple dwelling apartment house development;
he favored the plumbers. Again in 1957 when the same dispute arose
on a jobsite in Washington, D.C., the then president of the AFL Joint
Board, Mitchell, ruled in favor of the plumbers.
The Plumbers point particularly to what came to be known as the
Hutcheson Decision, made by an official referee appointed by the ex-
ecutive council of the Building and Construction Trades Department
in 1945 and which favored them. The pipe there was being laid in
the outlying grounds of a garden-type grouping of residential build-
ings. In awarding the work to plumbers the referee said : "The lay-
ing of lateral sewer pipe from main sewer into dwelling, or from in-
side property line to dwelling is work that should be done by, or under
the supervision of, members of the United Association."
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An early decision favoring laborers came in 1937 , when a joint
arbitration committee awarded to them installation of 36-inch storm
sewer at the Ship Model Testing Plant, Carderock , Maryland. In
1943 the Building and Construction Trades Department ruled in
favor of laborers in a dispute at the Hanford Atomic Energy project;
like awards were made in March 1944 at Akron, Ohio; in December
1943 in New Jersey; in November 1944 in Pennsylvania ; in April
1946 ("laying of nonmetallic drain pipe regardless of whether it is
inside or outside of a building site").
To offset the implication of the broad language appearing in the
Hutcheson Decision , the Laborers presented another, called the
Mahoney-Troast Decision , issued later in the same year , also by the
Building and Construction Trades Department . This one favored
the Laborers for laying nonmetallic pipe on the grounds of the Bell
Telephone Company in New Jersey , and contains this language: "It
is [our] opinion . . . that the laying of nonmetallic drain pipe re-
gardless of whether it is inside or outside of a building site, through
an open field or along streets and highways, is the work of the
Laborers."
During the 1950's the AFL National Joint Board for settlement of
jurisdictional disputes issued a number of decisions favorable to the
Laborers . Some of them were: at Indian Head , Maryland , 1952; ab
the Quantico Marine Base, Virginia , 1956; again at the Quantico
Marine Base , July 1957 ; at the Pentagon Plaza Apartment House
Development , Virginia , 1957; at a sewage treatment plant, Western-
port, Maryland , 1958; at Catholic University , Washington , D.C., 1959.
Neither party seriously disputes that there have been many arbitra-
tion decisions adverse to its present claim . Each union argued ex-
tensively on the record and in its brief that all decisions adverse to its
position were wrong , unwarranted by the facts, or violative of the
1941 Agreement. The Plumbers particularly contend that certain
decisions were national in scope and therefore of greater weight, or
were, by fundamental agreement within the AFL, to be given prece-
dence above others. A number of the decisions are attacked as having
been mere ad hoc rulings, and therefore not precedent at all. We
could not, and need not, resolve these multiple arguments aimed at
each of the countless past decisions . This checkered history of con-
tinous litigation shows only that no accord was ever achieved between
the warring parties over the years , and that , so far as amicable ad-
justment within the ambit of the labor organizations themselves is
concerned , the dispute is as lively today as ever. In analogous situa-
tions the Board has already said that a long list of arbitrators' deci-
sions divided between the parties , or even largely in one direction
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC. 1595
but always rejected by the losing party, proves there was never a
definitive resolution.'
Practice and Custom in the Area
On the question of practice and custom in the industry and in the
area, both groups of employees placed in evidence much data of
construction projects during the 1920's and throughout the years
before World War II. We consider more significant, however, the
clear testimony that outside utility contractors, such as Nickles, and
general contractors, using laborers from Local 456, in recent years
have laid extensive lines of concrete and terra cotta sewage and
drainage pipe outside of apartment dwellings, hangars, schools, and
building constructions of all kinds, on property which is not in the
public domain in the sense that the public streets and highways may
be. There is much evidence of such projects having been carried out
on housing developments, schools and universities, Government build-
ings, Army camps, and airports. Among the locations listed by the
witnesses were Dulles Airport, Quantico Marine Base, Indian Head
Powder Plant, Georgetown University, White Oaks Naval Research
Center, River House in Virginia. A considerable amount of such
work, comparable to what Nickles subcontracted to do for Venneri
in this case, was performed on Andrews Air Force Base itself.
And, of course, there is virtually unlimited testimony of the extent
to which plumbers, almost always working directly for mechanical
or plumbing contractors, have also performed this work in this
geographic area. With painstaking minutiae instance after instance
was detailed in which the "outside" utility pipelaying was included
in contracts awarded to plumbing contractors and in which the pre-
cise work in question was performed by Local 5 plumbers and Local
115 laborers. All of this, however, was unnecessary, and carries little
determinative weight now, for the Laborers do not take issue with the
assertion that there has been a very widespread practice of utilizing
plumbers in the Greater Washington area . What is significant in the
B See United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Local 1622
(0. R. Karst), 139 NLRB 591 , 596, where the Board said: "We do not believe that such
decisions indicate more than that the instant dispute between the unions is one of long
standing that neither union has conceded to the other the right to perform the work
in dispute ." See also the Cuyahoga, Lake Geauga and Ashtabula Counties District
Council and Locals 11, 182, 105, 404, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (The Berti Company ), 142 NLRB 163.
The unsettled state of the dispute before us distinguishes this case fundamentally from
the situation appearing in Local 1905, Carpet, Linoleum & Soft Tile Layers ( Butcher &
Sweeney Construction Co., Inc. ), 143 NLRB 251 , where the competing unions substantially
adhered to a 20-year-old building and construction trades department decision , and then,
in 1961, agreed to abide by it permanently thereafter . In consequence the Board found
that "the carpenters had withdrawn and no longer are either performing or seeking to
perform the particular work under consideration . . ." and quashed the notice of hear-
ing. In contrast, Laborers Local 456 and the Washington District Council of Laborers
very strenuously continue to press their claim here.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determination to be made here is that the same work has also been
performed extensively by Local 456 laborers, and, therefore, that
the element of practice and custom does not meaningfully point in
either direction.
Each of the unions contend that the work performed in the past
by the other should be disregarded in our evaluation of the relevant
facts. In many instances, the entire project-whether privately owned
building construction or Government installation-was carried on
with nonunion labor, either by the general or the subcontractor. In
some, the outside utilities were installed by union laborers from Local
456 but the inside pipework done by nonunion plumbing contractors.
Only rarely did laborers lay outside pipe while Local 5 plumbers
were at work inside a building under construction. Local 5 now
argues that work done by nonunion laborers cannot be credited as a
past practice in favor of the laborers members of Local 456 seeking
it here, because the latter are, or ought to be, opposed to nonunion
labor. The fact remains, however, that a considerable number of
the projects in question did have Local 456 laborers on the job. Local
5's second request-that because its plumber members were not on a
particular project the work performed by laborers there must be
ignored-carries an implication that, with clause 32 as justification,
Local 5 would have found means to remove the laborers. We reject
this argument also, for it requires an assumption that Local 5 would in
every instance have resorted to illegal activities in enforcing clause 32,
as the Board found in fact occurred in Case No. 5-CC-124, whenever
the employers failed to live up to that clause of their own volition.
In any event, we see no warrant for holding that no project counts
in determining custom and practice unless Local 5 plumbers were
doing the inside work.
Conversely, Local 456 asks that we give no weight to the work done
by plumbers after 1949, when clause 32 first appeared in their union's
contract with the Mechanical Contractors Association. Here Local
456 suggests a presumption that in every case the general contractors
were illegally coerced into awarding the work to plumbing contrac-
tors by the mere existence of the clause in Local 5's contract. Vague
generalities and accusations aside, however, there is no direct evi-
dence-and, of course, there is no complaint before us alleging-tha,t
Local 5 in fact resorted to illegal activities to enforce clause 32 at any
project other than the Venneri job at Andrews Field which gave rise
to this very proceeding. We deem the broad assumption unwarranted.
Local Municipal Codes
Local 5 placed in evidence the local plumbing codes of various
municipalities included in the Greater Washington area and con-
tended that because they provide that work of this kind is to be per-
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC. 1597
formed by plumbers, or journeymen plumbers, or under the super-
vision of licensed plumbers, the Board is barred from awarding it to
the Laborers, or employees represented by the Laborers' District
Council of Washington. In the suburban areas of Montgomery and
Prince Georges Counties, however, virtually all storm and sewer non-
metallic pipe of this type is laid in streets, under contract with the
Washington Suburban Sanitary Commission, by laborers working
for outside utility contractors, including Nickles. Much work of a
like kind has been performed on privately owned property by such
employees, as detailed above, apparently with no conflict with any
applicable laws. Moreover, the record shows quite clearly that on
Federal Government reservations, such as Andrews Field, the local
ordinances have no direct application. Whether these many projects
were executed under supervision of nonunion plumbers, whether
licenses when necessary were obtained by plumbers other than mem-
bers of Local 5, the record does not explain; it is clear, however, that
in some fashion necessary approval by the local authorities must have
been obtained in each instance. In any event we 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. In the light of
the persuasive relevant considerations revealed in the record as a
whole, we find no merit in the broad argument that these codes in
themselves preclude a finding in favor of laborers.
Skill and Training
There is no formal training program which prepares laborers for
the work in dispute; they learn by doing it. The more experienced
ones are called pipe layers and do the leveling, the actual fitting of one
piece of pipe into another, and the placement of cement into the joints
for sealing. Others do hand shoveling, tamping, lifting, and carrying,
or the usual chores of common laborers.
The plumbers, members of Local 5, are journeymen who have com-
pleted the regular apprenticeship program of their craft. For the
full gamut of their trade, which includes the complex cutting, sweat-
ing, and joining of pipe inside building structures, they are highly
skilled men. There is evidence that in the course of their extended
schooling they are also taught how to join cement pipe of this type
and how to level the grade correctly when laying it. A good portion
of the total work which Local 5 seeks in this case, however, is not per-
formed by plumbers but by laborer members of Local 115. These em-
ployees were not shown to possess or exercise any greater skill than
their counterpart laborer members of Local 456. When mechanical
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractors lay the pipe and use these men, the laborers do the same
hand shoveling, tamping, and lifting and carrying with as little need
for any particular technical ability.
For resolution of the work dispute involved in this case, the degree
of craft skill possessed by either disputant, particularly the plumbers,
is therefore irrelevant. We are only concerned with work calling for
the minimum of their special talents. For this purpose they are not
required, and do not utilize, any greater skill and training than the
laborers of Local 456 clearly have and use.lo
CONCLusION AND ASSIGNMENT
Our decision on the merits of the dispute will be limited to the work
concerning which the competing unions here are concededly in dis-
agreement. This includes the work required for digging the trenches,
all unloading, handling, and distribution of pipe (both nonmetallic
and metallic), laying and making joints on nonmetallic pipe, and re-
filling and tamping the trenches. As stated above, other work covered
by Nickles' contract and related to the foregoing duties was excluded,
by express agreement of the parties at the hearing, from the scope of
the remanded hearing, and no testimony was taken as to factors which
normally must be considered by this Board in making affirmative work
awards.ll Nickles offered that portion of his work to the plumbers
and, consistent with the policy of Local 5, they refused to do it. All
the work was then performed by the laborers. In these circumstances,
there is no issue presented concerning that aspect of Nickles' work.
As to the work in dispute, upon consideration of all pertinent fac-
tors appearing in the record in its entirety, we shall assign it to the
laborers represented by Local 456. They are as skilled in the per-
formance of the work as the plumbers who compete for it; they have
done it numerous times in like situations in the very geographic area
of this dispute; their employer's assignment to them conforms with
his past practice and with the collective-bargaining agreement then
in effect with Local 456; and their efficiency in accomplishing the in-
tegrated task of preparing the ditches and laying the pipe in a sequen-
tial operation is no less than that demonstrated by the plumbers.
Against these direct and convincing considerations the principal argu-
ments for a contrary award advanced by the Plumbers are
unpersuasive.
io Enterprise Association of Steam, Hot Water, Hydraulic, Sprinkler , Pneumatic Tube,
Ice Machine and General Pipefitter8 of New York of Vicinity , Local Union No. 638, of the
United Association of Journeymen, etc. (All-Boro Air Conditioning Corp. ), 136 NLRB 1641.
ii The work excluded from the scope of the proceeding is: installation ( leveling , calking,
and making of joints) of laterals , which are sanitary cast iron pipe and nonmetallic storm
pipe leading from the hangars to the first point of connection ; and installation of metallic
and nonmetallic domestic water lines.
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC . 1599
The jurisdictional assertions appearing in the charters and con-
stitutions of the International Unions of the two competing groups
of employees do, as to each of them, cover the work more so in the
case of the plumbers. However, the UA's constitution by its very
terms relies on selected arbitration awards of the past as support for
the breadth of the claims. Indeed, these prior decisions of record
constitute the principal grounds for the Plumbers' claim today. In
fact, however, as the record very clearly shows, there have been no
fewer arbitration and joint committee awards assigning the work to
the laborers over the years than appear to favor the plumbers.
Local 5 requests that special emphasis be placed on a particular
phrase first appearing in an early arbitration decision and repeated
in many awards later in favor of plumbers. In a 1945 dispute it was
held that pipelaying work of this kind "inside the property line"
belongs to plumbers. Local 5 now argues that because that language
appeared in some earlier decisions, and as a matter of logic, this Board
should view the entire area embraced in any Government reservation,
however large, as being circled by "a property line" and therefore the
exclusive province of plumbers. But such a narrow approach would
ignore the fact, admitted by Local 5, that there is no difference between
such work in public highways and "private streets," or camps, or large
airports, or extensive school grounds or other broad open terrain of
that type.
In its brief, Local 5 suggests that the full scope of its "property
line" claim need not be considered here; it asserts that there is a dif-
ference, even within the outer periphery of large "private" properties
like Andrews Field, between "main" line utilities and mere "site"
drainage, which Local 5 likens to building appurtenances or extensions
in some fashion. There is little of substance to this argument, for
clearly Nickles' pipe drained parking lots, aprons, and other open
areas around the two hangars; some of it even crossed under streets.
We shall therefore determine the dispute by deciding that the
laborers, rather than the plumbers, are entitled to perform the work
in question. Our present determination is limited to the particular
dispute which gave rise to this proceeding. In making this determina-
tion we are assigning the disputed work to laborers, who are repre-
sented by Local 456, but not to Local 456 or its members.
Venneri, the general contractor and Charging Party, requests that
our assignment be made applicable to the entire construction industry
in the Washington metropolitan area, or at least to all of Venneri's
own operations within the jurisdiction of Laborers Local 456 and of
Plumbers Local 5. As detailed above, however, much of the work
of laying this outside utility pipe in the Washington area has been
performed by Local 5 plumbers; indeed they have done more of it
than the laborers. There is even indication that Venneri itself, on
1 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other projects here , has included the work in subcontracts to mechan-
ical contractors who do not use Local 456 laborers . In each of the
great number of instances of past practice reflected in the evidence
before us , it was the builder, or the general contractor who, in con-
sequence of his choice of subcontractor, determined which category
of employees would eventually lay the pipe . But one of the most
important factors, if not the most significant one, which leads us to
assign the work to laborers in this instance , is the general contractor's
choice of subcontractor, and through him, his selection of laborers
instead of plumbers to lay the sewer and drain pipe . The other per-
tinent considerations-charter claims , decisions of record , skill, rela-
tive efficiency , and practice and custom-favor the plumbers no less
than the laborers. Had Venneri included the disputed work in
Akron's contract , and had Local 456 engaged in a strike to compel a
change of assignment from Akron's plumbers to laborers , the employ-
er's choice would have been equally as persuasive as it is now. We
have no reason to assume that future arrangements by other employers
within the jurisdiction of the two unions, or even by Venneri, will not
again create such situations . In these circumstances our decision here
cannot be broader than the determination required by the particular
dispute and the particular facts before us. We perceive no sufficient
reason to depart from the principle announced by the Board's first
determination of dispute after the CBS decision and consistently fol-
lowed thereafter.
The total record and Venneri's brief reveal that Venneri's purpose
in requesting a work assignment in favor of Local 456 Laborers
throughout the area is to free itself of the inconvenience it experiences
when plumbing contractors , who are members of MCA and who use
only union labor, refuse to bid upon , or to accept subcontracts limited
to pipework inside building structures whenever outside pipelaying
of the type here in dispute is awarded to contractors who do not
belong to the same association . This concern stands apart from Ven-
neri's right to award the outside utilities , at some future project, to
utility contractors like Nickles , and a possible recurrence of illegal
action by Local 5, as happened at Andrews Field in 1960. The
privilege of plumbing contractors and their employees to accept or
refuse work assignments to install pipe inside the buildings is a ques-
tion beyond the scope of this proceeding . Indirectly , but by necessary
implication , Venneri is seeking removal of clause 32 from Local 5's
contract with the Mechanical Contractors Association . In reality its
proposal here is that our ruling either effectively declare clause 32
illegal per se or condemn any and all individual actions in compliance
with its terms.
The charge upon which the notice of hearing pursuant to Section
10(k) of the Act was issued does not put the legality of clause 32 in
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC. 1601
issue. Moreover, this is not a complaint proceeding, but only a statu-
tory prerequisite to issuance of a complaint, which in turn would
have to be confined within the scope of the charge. At this stage we
deal only with whether or not there is probable cause to believe that
an unfair labor practice has been committed. We see no warrant,
therefore, either directly or indirectly, to pass upon the legality of
clause 32.
We find that Plumbers Local 5 is not and was not entitled by means
proscribed by Section 8 (b) (4) (D) of the Act to force or require Ven-
neri to assign the disputed work to plumbers and laborers employed
by Akron, rather than to laborers employed by Nickles.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and upon the entire record
in the case, the Board makes the following determination of dispute
pursuant to Section 10 (k) of the Act :
1. Laborers employed by Nickles Bros., Inc., who are represented
by Local 456 of the International Hod Carriers', Building and Com-
mon Laborers' Union of America, are entitled to perform the work
of digging trenches, laying and making joints on all sanitary, and
drain pipe, refilling trenches, and all handling of both nonmetallic
and metal pipe as outside utilities covered by Nickles' subcontract with
Arthur Venneri Company, at Andrews Air Force Base in Maryland.
2. Local 5, United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO, is not and has not been lawfully entitled to force
or require Arthur Venneri Company to assign the disputed work to
plumbers.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 5, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, shall notify the Regional Director for
the Fifth Region, in writing, whether or not it will refrain from
forcing or requiring Arthur Venneri Company, by means proscribed
by Section 8(b) (4) (D), to assign the work in dispute to plumbers
who are its members, rather than to laborers who are represented by
Local 456 of the International Hod Carriers', Building and Common
Laborers' Union of America.
MEMBER FANNING, dissenting :
On June 26, 1962, a majority of the Board found Respondent Local
5 in violation of Section 8(b) (4) (ii) (B) of the Act by encouraging
its members to refuse to perform plumbing work with an object of
forcing Arthur Venneri, the general contractor, to cease doing busi-
734-070-64-vol. 145-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness with Nickles Bros., Inc., a subcontractor. That decision was sub-
sequently affirmed by the Court of Appeals for the District of Co-
lumbia, 321 F. 2d 366. Certiorari was denied by the Supreme Court
on November 18, 1963. The circuit court's decision is therefore the
law of that case. The Board's determination that Local 5 had en-
gaged in an unlawful secondary boycott was made at a time when the
instant 10(k) proceeding was pending before the Board. Both pro-
ceedings are based on precisely the same facts. It is one and the same
dispute with the identical parties involved. I dissented from the
Board's procedure in considering the secondary boycott charges be-
fore determining whether or not a jurisdictional dispute existed,
perceiving no purpose served in dividing the dispute for formalistic
procedural reasons, and issuing two decisions more than 6 months
apart. However, I now must accept the court's decision that Local 5
is, in fact, in violation of Section 8(b) (4) (ii) (B).
The majority's decision in the instant case sets forth at great length
the relative claims of the competing unions as to whether plumbers or
laborers are entitled to perform the work of installing nonmetallic
pipe within the property line of the Andrews Air Force Base. The
majority concludes by awarding the work to laborers. Whether such
an award is right or wrong, it seems to me that this determination in
the context of the previously decided case presents an anomaly in
theory which, upon analysis, is destructive of its validity. The major-
ity has held that Section 8(b) (4) (B) and (D) are not mutually
exclusive. Precisely the same conduct giving rise to a secondary boy-
cott may, in fact, constitute a jurisdictional dispute. Here the Re-
spondent has been enjoined from refusing to refer plumbers to Akron,
a subcontractor, with an object of forcing a cessation of business
between Venneri and Nickles. Now the majority's award of the dis-
puted work to laborers means, in effect, that Respondent will in the
future be enjoined from such conduct for an object of forcing Venneri
to assign this work to plumbers. The independent results reached by
the majority seem entirely consistent. The same conduct of the Re-
spondent may result in the commission of two unfair labor practices,
for which the remedy is the same. Indeed, the provisions of Section
8(b) (4) suggest no inconsistency. Secondary boycotts and jurisdic-
tional disputes appear to be companion unfair labor practices. Either
or both may be enjoined where the record establishes that the Union
has engaged in forbidden threats, strikes, or the inducement of strikes.
If Congress had been content to outlaw secondary boycotts and juris-
dictional disputes as equal unfair labor practices by legislating only
Section 8(b) (4) (B) and (D), the hard questions which have plagued
the Board and the courts since 1947 would not have arisen. But
Congress determined during the enactment of the 1947 amendments
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC. 1603
to the Act that, although the means used might be the same, there was
a difference between a secondary boycott and a jurisdictional dispute.
A strike in furtherance of a secondary boycott is entirely indefensible
and forbidden under Section 8(b) (4) (B). But the same strike over a
particular work assignment under the same Section 8(b) (4) does not
necessarily result in an unfair labor practice finding. Interposed be-
tween a charge filed under Section 8(b) (4) (D) and the Board's final
decision that the Respondent is in violation of this section of the Act
is a new and unique provision, Section 10(k). In this section Con-
gress recognized that the mere prohibition of strikes over the assign-
ment of work was not in and of itself sufficient to eliminate jurisdic-
tional disputes from the industrial scene. A method entirely different
from the outright prohibition of secondary boycotts was selected
by Congress to resolve the competing claims of two groups of em-
ployees for particular jobs. Unlike Section 8(b) (4) (B), whenever a
charge under Section 8(b) (4) (D) is filed the Board is directed
"to hear and determine the dispute out of which such unfair labor
practice shall have arisen." If the parties have "voluntarily ad-
justed" their dispute or complied with the Board's determination, the
charge must be dismissed. This congressional direction, as the
Supreme Court made clear in the CBS decision, requires the Board
to make an actual award of the disputed work, a compulsory deter-
mination of the jurisdictional dispute. Obviously, in any such deter-
mination the Board must decide that the striking union is or is not en-
titled to the work it claims. If it is not entitled to the work, if the
dispute is not voluntarily adjusted, if there is no compliance with
the Board's decision, the provisions of Section 8(b) (4) (D) are fully
applicable and the strike over work assignment is enjoinable as an
unfair labor practice. If, however, the striking union is entitled to
the work and the dispute is not voluntarily adjusted and the parties
fail to comply with the Board's decision, the Board's 10(k) deter-
mination is effectuated only by permitting the striking union to con-
tinue its strike. In this circumstance the General Counsel does not
present the Board with a complaint alleging an unfair labor practice
under Section 8(b) (4) (D). The Employer with the power to assign
the disputed work can either comply with the Board's award or ac-
cept the consequences of the economic pressure against him. Thus,
it would seem, alternative sanctions result from the failure of the
parties to comply with a 10 (k) determination; in the case of the strik-
ing union, the sanction is an injunction; in the case of the noncomply-
ing employer, the sanction is continuation of the strike. On the sur-
face, the decision in the instant case suggests no diminution in these
alternatives. Had Respondent been awarded the disputed work, pre-
sumably the charge against it, alleging a violation of Section
1604 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b) (4) (D ), would have been dismissed . At this point , however, a
significant change appears . For here , if Venneri had refused to com-
ply with the Board's award of the disputed work to plumbers, he
would not be required to accept , as a sanction , the continuation of
Respondent 's strike. That conduct has been and will remain enjoined
under Section 8 (b) (4) (B). It is clear, therefore , that Venneri and
the laborers had everything to gain and nothing to lose in this 10(k)
proceeding . As a result of the majority 's award of the work to :la-
borers, Respondent 's pressure against Venneri will be enjoined under
two subsections of the Act, 8(b) (4) (D) and 8 (b) (4) (B). If the
award had gone against the laborers and in favor of the plumbers,
,the pressure against Venneri would still be enjoined under the latter
subsection . Obviously, under the majority's procedure no sanction is
available in this proceeding to secure compliance with a 10( k) deter-
mination in favor of the plumbers.
It might be asked, then , what useful purpose is served by the pro-
tracted, expensive litigation in this 10 (k) proceeding? If certain
8 (b) (4) conduct by a Union over the assignment of work is unlawful
under Section 8(b) (4) (B ), is it necessary or desirable to litigate
further the question of its lawfulness under Section 8(b) (4) (D) ?
Would it not be better to say to the Respondent in this case: "Your
conduct is clearly unlawful under another Section of the Act. There-
fore, whether or not you are entitled to the work you claim , you can-
not, in any event, continue such conduct . Any award we might make
in a 10 ( k) proceeding would only be effective against you ." And if
an award can be effective against only . one of the parties, of what
utility is such an award in carrying out the direction of Congress that
the Board must determine the merits of competing claims in a juris-
dictional dispute?
This serious question was anticipated by the majority in its second-
ary boycott opinion. There the majority noted that, if the Respondent
was found in the 10(k) proceeding to be entitled to the disputed work,
"it could take primary action against the employer who had this work
to assign ." This dicta , then, would be the only available sanction
offered to the Respondent in the event the employer refused to comply
with a 10 ( k) award in its favor . Here Venneri would be faced with
Board-suggested "primary action" to enforce such an award. But
unless the Respondent accepted the Board 's suggestion , which, it
might be noted , encourages new and different strike action , and litiga-
tion in a new proceeding , the employer 's work assignment , whether or
not in accord with the Board's determination , would remain pro-
tected . It seems to me that the purpose of Sections 10(k) and
8(b) (4) (D) is to eliminate unjustifiable strikes over the assignment
of work. If the strike cannot under any circumstances be justified,
there is no necessity to arbitrate the dispute . I cannot believe that
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC. 1605
Congress intended the Board to go outside the limits of an 8 (b) (4) (D)
charge to encourage the winning party to engage in still another form
of strike action to secure the work to which it has been held entitled.
Assuming arguendo, however, that there is some validity to the
majority's position, nowhere does the majority explain the exact na-
ture of the action Respondent could safely pursue to secure the dis-
puted work. The jurisdictional dispute in this case involves work at
a construction project. As is true in virtually all cases of this type,
more than one employer is immediately concerned. Nickles, a utility
contractor, is the employer of laborers, who currently are assigned
the work of laying outside nonmetallic pipe. Akron, a mechanical
contractor, is the employer of plumbers, who claim this work for their
craft. Venneri, the general contractor, employs neither, but is the
employer with "the power to assign the work in dispute." Which of
these employers could the Respondent strike if it had been awarded
the work in this case? Obviously, not Akron. The inducement of
strike action by this employer's employees has been enjoined as un-
lawful secondary conduct. Nickles? Theoretically, Nickles could
be forced to hire plumbers instead of laborers, but this would mean
that he would have to become a mechanical instead of a utility con-
tractor. Whether Nickles has the resources, competence, or desire to
effect such a change is a matter on which the record sheds no light.
Indeed, neither Akron nor Nickles was sufficiently interested to pre-
sent any argument or make an appearance in this case. It would be
highly unrealistic to suggest, and the majority does not, that the Re-
spondent might have enforced an award in its favor by taking direct
action against Nickles. That leaves Venneri who, as the majority
correctly finds, has the actual power to assign the disputed work by
employing either a utility or mechanical contractor. What "primary"
action could the Respondent take against Venneri? Venneri has no
contract with Respondent nor does it employ its members. If Re-
spondent threatened or picketed Venneri, would not "an" object of
such conduct be to require a cessation of business between Venneri and
Nickles? And is not this objective specifically forbidden under
the Board and the court's outstanding decision under Section
8(b) (4) (B) ? It would therefore seem that this proceeding is truly
a one-way street. In my view, a Section 10 (k) determination is mean-
ingless unless it contemplates two-way traffic. Only then can the
Board give effect to the Supreme Court's admonition that Congress
intended this section as "an effective compulsory method of getting
rid of what were deemed to be the bad consequences of jurisdictional
disputes" and the Board is therefore required to make a "compulsory
determination" of such disputes in a 10(k) proceeding. I cannot be-
lieve that Congress intended that, following time-consuming and ex-
pensive litigation, the compulsion of the Board's final award be di-
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rected against only one of the possible victors. It might be noted that
the dispute between the two unions in this case goes back more than
50 years. Volumes of testimony and documentary evidence support
the strongly held claims of each. Obviously, the final resolution of
such a dispute presents a formidable task for this Board or any other
objective agency. Indeed, it appears that the unions' own machinery
for the resolution of their differences has been inadequate for this
task. It was precisely this most difficult situation that Congress con-
templated when it enacted Section 10(k). Now the Board, prodded
by the Supreme Court, has dutifully entered the controversy, but with
one hand tied behind its back.
In view of the Board's and the court's decisions that Respondent's
conduct against Venneri, the same conduct alleged to be in violation
of Section 8(b) (4) (D), is unlawful under Section 8(b) (4) (B), I
must accept this conclusion as the law of that case. It follows that
such conduct, whether or not in violation of another provision of the
Act, cannot, in any event, be justified or protected. Having con-
cluded that the means selected by the Respondent to secure an assign-
ment of work in its favor has been proscribed by the Act in another
section, I must further conclude that such conduct cannot give rise to
a justifiable dispute within the meaning of Section 10(k) of the Act.
For it is clear to me that Congress intended this section to take the
place of an arbitration award and, with respect to charges properly
cognizable as jurisdictional disputes, the alleged unlawful conduct
must be enjoined or permitted, depending upon the Board's determi-
nation of the dispute. With great reluctance I find that this dispute
is not properly before me for determination under Section 10(k) and
I would quash the notice of hearing.
In reaching this conclusion, however, I would be remiss if I did not
restate my view that in the administration of the Act a proper balance
must be struck between the sometime conflicting consequences in the
settlement of jurisdictional disputes and conduct otherwise prohibited
by the Act. Where, as here, but for the court's decision, I would find
a true jurisdictional dispute, I would not find Respondent's conduct
to be in violation of another section of the Act. If Respondent were
found to be entitled to the work in a 10 (k) determination, I would
permit it to continue its strike against one of the parties to the dispute.
If it were found not to be entitled to the work, it would be forbidden
from engaging in such conduct under Section 8(b) (4) (D). I am, of
course, aware that Akron, against whom Respondent struck, may
properly be regarded as a "secondary" employer under long-
established Board and court decisions. I point out, however, that the
Board's original interpretation of Section 8(b) (4) (B), subsequently,
approved by the courts, was itself a balancing of congressional ob-
jectives in that section and Sections 7 and 13 of the Act. Literally
LOCAL 5, PLUMBING & PIPE FITTING INDUSTRY, ETC. 1607
interpreted, the former section would have forbidden conduct pro-
tected by the latter. The theory was therefore developed, after long
and painstaking effort, that "primary" conduct, regardless of the pro-
visions of Section 8 (b) (4) (B), would be permitted, but that "second-
ary" conduct, regardless of the provisions of Sections 7 and 13, would
not be permitted. In my opinion, an entirely different distinction and
a different accommodation is required when weighing the efficacy of
Sections 10 (k) and 8 (b) (4) (D) against other congressional objectives
in the statute. Characterizing Respondent's action as "primary" or
"secondary" does not automatically answer the important question
whether it should be permitted or forbidden if it is properly cogniza-
ble under the unique provisions of Section 10 (k). While an employer,
such as Akron, may well be a "secondary" employer, it is equally clear
that he is one of the parties to a jurisdictional dispute. To hold, as
the majority does, that Congress intended the provisions of Section
8(b) (4) (B) to insulate him from the consequences of a jurisdictional
dispute, emanating, in part, from his own conduct, does not take into
account the intervening purposes of Sections 10(k) and 8(b) (4) (D).
I do not believe it sufficient to say that Respondent might be permitted
to strike for the assignment of work in some other manner. That case
is not before us. If, however, I am wrong and the majority is right
in its guarantee to employers, such as Akron, then I would hold, as I
have in the instant case, that the Respondent cannot use such means
to secure a possible determination that it is entitled to the work for
which it is striking. Conduct, which is clearly violative of the statute,
reasonably should not be the basis upon which the Board undertakes
to arbitrate the justness of Respondent's action. To illustrate this
point, assume that in the instant case, Respondent had struck a sup-
plier of Venneri to cause a cessation of business between those two
with the object of forcing Venneri to make a work assignment in
Respondent's favor. Clearly such a strike would be "secondary."
Would it also give rise to a 10(k) determination? Literally, the lan-
guage of Sections 10(k) and 8(b) (4) (D) is applicable. It is in-
conceivable to me, however, that the Board would do more than seek
an injunction against the Respondent's strike as a violation of Section
8(b) (4) (B). It would be immaterial that Respondent might, in
fact, be entitled to the assignment of the work it sought. The means
used to achieve that objective would be too remote from the situs of
the original dispute and the parties actually involved, whether they
be regarded as "primary" or "secondary," to warrant giving the Re-
spondent a hearing under 10(k) and a possible favorable award.
Nevertheless, this hypothetical case logically is in the same posture as
the instant case, where the Board has found that Respondent's conduct
is unlawful under Section 8(b) (4) (B), but insists at the same time
that the dispute must be determined under Section 10 (k). In my
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion, the majority's interpretation of these provisions of the Act
preclude the sort of accommodation I am convinced is necessary and
desirable to effectuate congressional intent. Every strike over the
assignment of work need not give rise to a 10(k) hearing. Such con-
duct should be examined with great care to determine whether the
striking union is entitled to the extraordinary procedure of this sec-
tion which might result in the Board's stamp of approval, a determi-
nation which depends in substantial part on whether the employer
against whom the union's pressure is directed is in reality involved
in the jurisdictional dispute. Without attempting to delineate fur-
ther the proper boundaries between jurisdictional strikes giving rise to
10(k) hearings and other strikes, a determination which, in my view,
should be developed on a case to case basis, I adhere to my position,
with due respect for the Court of Appeals for the District of Colum-
bia, that the Respondent's conduct with respect to Akron should have
resulted in the application of Sections 10(k) and 8(b) (4) (D) with-
out the contradictory application of Section 8(b) (4) (B).
MEMBER BROWN took no part in the consideration of the above Deci-
sion and Determination of Dispute.
Journeymen Plasterers' Protective and Benevolent Society of
Chicago, Local No. 5 [John P. Phillips Plastering Co., Inc.]
and John J. Spinelli. Case No. 13-CB-1235. February 10, 1964
DECISION AND ORDER
On August 19,1963, Trial Examiner Abraham H. Mailer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief, and the General Coun-
sel submitted a brief in support of the Trial Examiner's Intermediate
Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
145 NLRB No. 152.