Local 690, Etc., Plumbing & Fitting Industry

National Labor Relations Board - Board Decisions

Dec 16, 1964

150 N.L.R.B. 496 (N.L.R.B. 1964)

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "technical representatives" are dissimilar from the "technicians,"
the Employer appears to rely primarily on the fact that some of the
"technical representatives" work closely with the Employer's cus-
tomers. But the record shows that even then the "technical repre-
sentatives" continue to perform mechanical work, and such inciden-
tal contact as some "technical representatives" have with customers
does not, in our view, diminish their primary function as technicians
engaged in such mechanical work. Moreover, at some field sites there
are no customers , and technical representatives do work exclusively
for the Employer. In sum, there appears to be little fundamental
difference between the work of "technical representatives" and that
of technicians working in the field who, we have found, are covered
by the certification. We conclude, therefore, that employees in "tech-
nical representative" classifications are covered by the certification
while on temporary field assignment.
Both the Petitioner and the Employer would exclude "technicians"
and "technical representatives" who are permanently assigned to the
field. Accordingly, we shall grant the Petitioner's motion for clari-
fication and include in the unit all of the Employer's employees
working in "technician" or "technical representative" classifications
at the Employer's plants in Erie and Niagara Counties, in the State
of New York, who are temporarily assigned to field duty outside
those counties, but we shall exclude all employees in "technician" or
"technical representative" classifications who are permanently trans-
ferred outside those counties.'
[The Board clarified the certification by specifying that the em-
ployees in "technician" or "technical representative" classifications
at the Employer's plants in Erie and Niagara Counties, New York,
who are temporarily assigned to field duty outside those counties
are included in the aforesaid unit.]
7 See J. I. Case Company, 105 NLRB 638, 640.
Local 690, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States
and Canada , AFL-CIO and Pipe Linings, Inc. and Laborers
District Council of the Metropolitan Area of Philadelphia and
Vicinity, Local 57, International Hod Carriers Building and
Common Laborers Union of America , AFL-CIO. Case No.
4-CD-115. December 16, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following
a charge filed by Pipe Linings, Inc., herein called the Company,
150 NLRB No. 48.
LOCAL 690, ETC., PLUMBING & PIPE FITTING INDUSTRY 497
alleging that' Local 690, 'United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, herein called the Respondent or
Local 690, had violated Section 8(b) (4) (D) of the Act by inducing
or encouraging employees of the Company to cease work for the
purpose of forcing or requiring the Company to assign the work in
dispute to employees who are members of the Respondent rather
than to employees who are represented by Laborers District Council
of the Metropolitan Area of Philadelphia and Vicinity, Local 57,
International Hod Carriers, Building and Common Laborers Union
of America,-AFL-CIO, herein called Laborers or Local 57. A hear-
ing was held before Hearing Officer Alfred Vitarelli, on various
dates between September 9 and 22, 1964. All parties appeared at
the hearing and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to adduce evidence bearing
on the issues. Thereafter, briefs were filed by the Company, the
Respondent, and the Laborers.
Upon the entire record in the case, the Board 1 makes the follow-
ing findings :
1. The business of the Company
Pipe Linings, Inc., a California corporation, is engaged in the busi-
ness of cleaning and lining water mains throughout the United States
and some foreign countries. During the past year, the Company pro-
vided services to customers outside the State of California valued at
more than $50,000 and had a gross volume of business in excess of
$1,000,000. We find that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and that it
will effectuate the policies of the Act to assert jurisdiction herein.
2. The labor organizations involved
The Respondent and the Laborers are labor organizations within
the meaning of Section 2 (5) of the Act.
3. The dispute
A. The work in issue
The work in dispute is the setting up and dismantling of a tem-
porary water distribution system (known as bypass work, or the Hi-
Line), which is an integral part of the process of cleaning and lining
of water mains on Race Street, between 52d and 65th Streets, in
Philadelphia, Pennsylvania.
'Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman McCulloch and
Members Leedom and Jenkins].
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The basic facts
In 1955 the city of Philadelphia embarked on a program for the
continuous improvement of its water distribution system. An in-
tegral segment of the program consisted of cleaning and lining old
and deteriorated water mains.
In January 1964 the city awarded a contract to the Company for
the cleaning and relining of certain water mains in the city. In
March 1964 Perry, the Company's job superintendent, arrived in
Philadelphia to plan and engage workmen for the job. In addition
to hiring laborers, operating engineers, and a teamster, Perry called
Magnatta, a plumbing contractor, and requested the services of a
master plumber for the inspection and repair of any leaks or any-
thing that was actually plumbers' work.2 When the work was about
to begin, Perry contacted Magnatta who came to the jobsite with a
plumber. Perry gave the,plumber instructions to inspect the tem-
porary service line, check cellars for leaks, fix or report the leaks,
and maintain a logbook record of all leaks discovered. After 1 week
on the job, Perry became dissatisfied with the plumber's work and
requested a replacement. Thereupon, Magnatta came out to the job-
site with a replacement, Kingsmill, who was given the same instruc-
tions. Kingsmill worked on the job for a number of weeks. On
Monday, June 15, after a series of complaints from residents con-
cerning his work, Kingsmill was told "to turn in his tools." The
next morning, June 16, Perry requested Magnatta to furnish another
replacement. That afternoon, a plumber, Antonetti, reported to
Perry, stating he had been sent from the Plumbers' union but wasn't
sure whether he was to report to the pipelining job or another job
on the next street. Perry replied that his plumbers were sent by
Magnatta. Later that afternoon, Antonetti returned to the jobsite
with Peter Sinnott, the business agent for Local 690. Perry again
stated that he obtained his plumbers from Magnatta, to which Sin-
nott replied "that he would see about that." -
The next morning, June 17, Antonetti appeared at the jobsite with
Magnatta. After being informed of his duties, Antonetti was ex-
cused for the afternoon but worked the next 2 days. On Friday,
June 19, the temporary water service and pipelining operations had
caught up with the pipe-cleaning operation. In this situation, Perry
decided to concentrate on cleaning the mains for a few days in order
to get sufficiently ahead on this work so that opportunity would be
2 The specifications contained in the contact awarded to the Company provided that:
All work on service connections shall be done only under the direction of a licensed
master plumber and by proper authority and advice of a representative of the Service
Section of the water operations . . . . Full liability for all service connection work
on any premises shall be assumed by the Contractor.
LOCAL 690 , ETC., PLUMBING & PIPE FITTING INDUSTRY 499
provided for other parts of the job to proceed . With no temporary
service line or lining work immediately in prospect , and needing only
a skeleton crew of laborers to do cleaning work for 2 days, Perry
explained the situation to the laborers , operating engineers , and team-
sters, and obtained their agreement to scheduling the work in this
manner. Perry also told Antonetti that there would be no more
plumbers ' work for a few days and to "come back next Wednesday."
Antonetti reported this to Sinnott and was told by Sinnott to report
to the jobsite Monday morning , June 22. When Antonetti reported
to the jobsite on that date and was not immediately put to work, he,
along with several others, including Sinnott, began picketing, thus
bringing the job to a halt.
Later , Perry arrived at the jobsite. Observing the pickets, he
asked Sinnott , "What are we doing here this morning?" Sinnott re-
plied, in part , "You people have been doing plumbers work." After
Sinnott's conversation with Perry, he told the Laborers ' steward,
Lewis , that the Plumbers felt that the "by -pass" was plumbers' work.
Perry reported the fact of the picketing to the Company 's general
superintendent , Gay, who thereupon came to the jobsite and asked
Sinnott what the problem was. Sinnott replied, "... you people are
a bunch of pirates. . . . " Gay then asked what could be done to get
the job started again , to which Sinnott replied, "It's up to the
Laborers . It's up to the labor union , whether you get this job run-
ning again or not." On another occasion , sometime between June 22
and July 13, 1964, the period during which the job was shut down,
Sinnott said to Lewis, "This is downright piracy, you guys doing
our work."
On July 9, 1964 , a petition was filed under Section 10 ( l) of the
Act for an injunction against the Respondent 's picketing. The fol-
lowing day , O'Neill, business manager of Local 690, visited the job-
site and met with Gay, who asked O'Neill what the problem was.
O'Neill told Gay, as appears from the latter 's testimony , that if Gay
"would conceivably put on two plumbers, why , this sort of thing, the
picketing , would stop and we could go back to work. " Thereafter,
O'Neill, Gay, and Cahill, business manager of the operating engi-
neers, inspected a temporary service line which had previously been
set up. Gay asked O'Neill what part of the work on the service line
belonged to the Plumbers. O'Neill, with his toe, touched the cou-
pling on a 2-inch pipe and said, "Everyone knows that this is Plumb-
ers work, screwed fittings with hoses going into the house services."
After this inspection , O'Neill said he would have Sinnott discontinue
his picketing so that work could be resumed Friday morning. Work
was actually resumed on Monday, July 13, with Antonetti on the job.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 16, the parties in the 10(1) injunction proceeding entered
into a stipulation, approved by the court on July 20, providing for
cessation of the picketing pending final disposition of this proceed-
ing before the Board.
On July 17 the Respondent applied to the Joint Board for Settle-
ment of Jurisdictional Disputes for a determination of the dispute
involved in this proceeding. On July 24 the Company, on being ad-
vised of the application, sent a telegram to the Joint Board stating
that it was not a party to the Joint Board plan for settlement of
jurisdictional disputes and would neither participate nor be bound
by any proceeding of that board. On August 7, the Joint Board
issued a determination, finding that the "assignment of disconnecting,
reconnecting, and realignment of 10-inch and 12-inch cast iron water
mains and the unloading, distributing, and installing of 2-inch gal-
vanized screw piping to temporary water mains and connections into
water meters shall be assigned to plumbers and steamfitters on the
basis of trade practice; otherwise there is no basis to change the
contractor's assignment which is to the laborers."
C. Contention of the parties
The Respondent Union takes the position that this case does not
constitute a traditional jurisdictional dispute between two unions.
According to the Respondent, it is not claiming the work which the
laborers were doing, but rather is seeking the reinstatement by the
Company of the plumbers who had been laid off. The Respondent
also contends that the Company is merely seeking an advisory opin-
ion from the Board for locations elsewhere in the United States.
In support of its contention that the Company properly assigned
the "bypass" work, the Laborers assert that such work has been his-
torically within the jurisdiction of the Laborers; that the work is
covered by its collective-bargaining agreement; that the Company's
assignment is in conformity with trade and area practice; and the
work does not require skills greater than those possessed by laborers.
The company contends that the Plumbers' picketing, with the re-
sultant cessation of work on the job, was for the purpose of forcing
or requiring the Company to assign the bypass work to plumbers
rather than to laborers.
D. Applicability of the statute
The charge, which was duly investigated by the Regional Director,
alleges a violation of Section 8(b) (4) (D) of the Act. The Regional
Director was satisfied upon the basis of such investigation that there
was reasonable cause to believe that a violation had been committed
and directed that a hearing be held in accordance with Section 10(k)
of the Act.
LOCAL 690, ETC., PLUMBING & PIPE FITTING INDUSTRY 501
Before making a determination of the dispute, the Board is re-
quired to find that there is reasonable cause to'believe Section 8(b)
(4) (D) has been violated. We are satisfied that there is adequate
support for such a finding in this case, particularly in the light of
the following, reflecting the object of the picketing admittedly en-
gaged in by the Respondent. On June 22 the first day of the picket-
ing, Sinnott, when asked by Perry what the trouble was, replied,
"... you people have been doing our plumbers work." When asked
the same question by Lewis, Sinnott replied that "he wanted his work
... the bypass." On July 10, when O'Neill appeared at the jobsite,
Gay made the same inquiry of O'Neill who replied ". . . if [the
Company] would conceivably put on two plumbers, why this sort of
thing, the picketing, would stop and [the Company] could go back
to work." Later, while inspecting a temporary service line, Gay
asked O'Neill what part of the work he claimed belonged to the
Plumbers. O'Neill touched the coupling on the 2-inch pipe and
stated, "Everyone knows that this is Plumbers work; screwed fittings
with hoses going into the house service."
Furthermore, the Respondent, contrary to its position in this case,
sought a determination by the National Joint Board for Settlement
of Jurisdictional Disputes of the dispute here involved, describing
the work in dispute as disconnecting of watermeters, running tem-
porary waterlines and services, dismantling of same, and reconnect-
ing watermeters and backflushing of waterlines,' and naming the
trades involved as the plumbers and laborers.
Upon the basis of the above, and the entire record before us, we
find that there is reasonable cause to believe that Local 690 induced
the employees of Pipe Linings, Inc., to engage in a strike with an
object of forcing Pipe Linings, Inc., to assign work to members of
Local 690 rather than to members of Local 57, and that therefore a
violation of Section 8(b) (4) (D) has occurred. Accordingly, we find
that a work dispute is properly before the Board for determination
under Section 10(k) of the Act.
E. Merits of the dispute
Section 10(k) of the Act requires the Board to make an affirmative
award of the disputed work, after giving due consideration to vari-
ous relevant factors. The following factors bear on the issue of work
assignment before us :
Collective-bargaining agreements: At all times material herein the
Laborers and the Company were parties to a collective-bargaining
agreement covering the employees to whom the Company assigned
the work in dispute, and describing as among the work to be per-
formed-by such employees the construction of "conduits, water lines,
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other pipe lines." The Company has no contract with Respond-
ent. Moreover, as it has its plumbing work performed by a sub-
contractor, it has never employed plumbers.
Company, area, and industry practice : The Company has employed
only laborers for setting up and dismantling temporary service lines
within the city of Philadelphia as well as elsewhere in the United
States for the past 16 years. In addition, the record discloses that
two other corporations which, along with the Company, perform 99
percent of the pipelining work for the city, likewise have employed
only laborers for setting up temporary service lines. Thus the assign-
ment of the work to laborers accords not only with the Company's
past practice, but also with the practice of other principal employers
in the area.
Charters, constitutions, and union agreements: The Laborers rely
on its constitution and manual of jurisdiction as evidence in support
of its position. The Plumbers, on the other hand, did not submit
any evidence in this regard. The Board has previously considered
the claims of these unions based on union constitutions, as well as
related considerations, such as arbitration awards and interunion
agreements, and has found that none of these has provided an effec-
tive basis for resolving this long-standing controversy between these
unions.3 This factor, therefore, cannot weigh the balance in favor
of either disputant.
Action of the Joint Board: On application of Local 690, the Joint
Board on August 7, 1964, awarded the work involved in the instant
dispute to the Plumbers. The Company, however, had not con-
sented to be bound by a decision of the National Joint Board and
had in fact expressly asserted its unwillingness so to be bound. In
these circumstances, and in the absence of any showing in the record
as to the evidentiary basis of such determination, the Joint Board
award is merely one of the factors we must consider in making our
determination.4
Efficiency of operation: It is apparent that both disputants can
accomplish the disputed task with comparable competence. The
process of cleaning and lining water distribution mains, however,
requires that various operations be closely coordinated in order that
it may proceed smoothly. Before the cleaning and lining operation
can begin, it is necessary to install temporary service lines. Then,
in order to gain access to the water mains, it is necessary to excavate
at intervals, cut and remove sections of pipe. Once gaining access,
3Local 5, United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada , AFL-CIO (Arthur Venners Com-
pany ), 145 NLRB 1500
4 Carpenters District Council of Denver and Vicinity , AFL-CIO (J. 0. Veteto and Son),
146. NLRB 1242, Local 964 , United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Robert A. W. 'Carleton, d/h/a Carleton Brothers Company), 141 NLRB 1138.
LOCAL 690, ETC., PLUMBING & PIPE FITTING INDUSTRY 503
it is necessary to clean the mains before the cement mortar lining
work can be done. On completion of the lining process, the excava-
tion must be filled, a temporary paving must be placed over the hole,
and the temporary -service lines then removed. This entire process.
is repeated for each section or unit of the job. -Since each operation
must necessarily be performed before the work on the next operation
can be undertaken, and since no particular operation is of sufficient
duration to justify a permanent crew for each operation, laborers
are used in each operation because they possess the skills required
and can be switched from one operation to another as the work de-
mands. To require the use of separate crafts for each operation
would mean that each craft would be employed for only a few hours
each week. Obviously, the work involved can be performed more
efficiently when done as a continuous, integrated operation by a single
employee group. The Company's assignment of the disputed work to
laborers is therefore consistent with efficiency of operation.
F. Conclusion as to the merits of the dispute
Upon consideration of all pertinent factors appearing in the rec-
ord, we shall assign the disputed work to the laborers who are as
skilled in the performance of such work as the plumbers and who
have performed the work in the past to the satisfaction of the Com-
pany which desires to retain them on the job. The present assign-
ment of the work in dispute to the laborers is not only consistent
with the Company's past practice, but also with that of other employ-
ers in the area, and is consistent also with the Company's collective-
bargaining agreement with the Laborers as well. The fragmentation
of the job into separate operations in which the laborers would make
the excavation, gain access, clean, line the water main, refill the hole,
and pave the street, while plumbers would do no more than set up
and dismantle the temporary service line, is not as efficient an opera-
tion as the existing procedure whereby the laborers accomplish the
integrated task in a single sequential operation. We shall, accord-
ingly, determine the instant jurisdictional dispute by deciding that
laborers, rather than plumbers, are entitled to the work in dispute.
In making this determination, we are assigning the work to the pres-
ent employees who are represented by the Laborers but not to that
Union or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
this proceeding, the Board makes the following Determination of
Dispute pursuant to Section 10 (k) of the Act :
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The laborers employed by Pipe Linings, Inc., who are repre-
sented by Laborers District Council of the Metropolitan Area of
Philadelphia and Vicinity, Local 57, International Hod Carriers,
Building and Common Laborers Union of America, AFL-CIO, are
entitled to perform the disputed work in connection with the site
designated as Race Street between 52d and 65th Streets, in Phila-
delphia, Pennsylvania.
2. Local 690, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO, is not entitled, by means proscribed by Section
8(b) (4) (D) of the Act, to force or require the Company to assign
the above-described disputed work to plumbers.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 690, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, shall notify the Regional Director for
Region 4, in writing, whether it will or will not refrain from forcing
or requiring the Company, by means proscribed by Section 8(b) (4)
(D), to assign the work in dispute to plumbers rather than laborers.
Teamsters, Chauffeurs , Warehousemen & Helpers, Local Union
No. 631 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America and Reynolds Electrical
and Engineering Co., Inc. Case No. 20-CD-134. December 16,
1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, as amended , following charges filed May 5,
1964 ,1 and amended May 11 , 1964, by Reynolds Electrical and Engi-
neering Co., Inc., designated herein as REECO or the Employer,
alleging that Teamsters , Chauffeurs , Warehousemen & Helpers, Local
Union No. 631 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, designated herein as the Team-
sters , had violated Section 8 (b) (4) (D) of the Act. A duly sched-
uled hearing was held before Hearing Officer Melton Boyd on June 4
through 25 , 1964. All parties appearing were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
adduce evidence bearing on the issues . The rulings made at the hear-
11 The May 5 charge is dated April 28, 1964.
150 NLRB No. 44.