Plumbers, Local 13

National Labor Relations Board - Board Decisions

Feb 18, 1972

195 N.L.R.B. 471 (N.L.R.B. 1972)

PLUMBERS , LOCAL 13
United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the'
United States and Canada , Local 13 and Building
Trades Employers Association of Rochester , Inc.,'
and its Member Frank DiMino , Inc.' and Laborers
International Union of North America , Local 435:
Case 3-CD-375
February 18, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following the
filing of charges by BTEA, alleging that Local 13 vi-
olated Section 8(b)(4)(D) of the National Labor Rela-
tions Act, as amended, by engaging in certain pro-
scribed activity with an object of forcing or requiring
the assignment of certain work described below to em-
ployees represented by Local 13 rather than to em-
ployees of the Employer represented by the Laborers.
A hearing was held before Hearing Officer Carl B.
Newsome on on September 13 and October 13, 1971.
All parties' appeared at the hearing and were afforded
a full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing on
the issues.' Intervenor, Local 435, was the only party
to file a brief in support of its position.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case,' the Board makes
the following findings:
Hereinafter referred to as Local 13 or Plumbers
Hereinafter referred to as BTEA
Hereinafter referred to as DiMino or Employer
Hereinafter referred to as Local 435 or Laborers who was allowed to
intervene herein by reason of contract interest
Local 435 was permitted to intervene in the proceedings herein on the
basis of a collective-bargaining agreement with Frank DiMino, Inc
`.The parties stipulated that the Section 10(k) hearing record in Case
3-CD-374 ( Local No 435, Laborers International Union (Building Trades
Employers Assn )) involving the same type of work in dispute in the instant
case be incorporated in the record herein Accordingly , it is incorporated in
and made a part of the record herein
See fn 6
I THE BUSINESS OF THE EMPLOYER
471
Frank DiMino, Inc., a member of the excavating and
paving division of the Building Trades Employers As-
sociation of Rochester, Inc., New York, is an excavat-
ing and paving contractor, with its principal office in
Rochester, New York. The parties stipulated, and 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 juris-
diction herein.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Local 435
and Local 13 are labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Controversy
The work in dispute involves the installation of a
water distribution system, cast iron sanitary sewer sys-
tem, and storm sewers at the Long Ridge Plaza Shop-
ping Center in Greece, New York, a suburb of Roches-
ter, Monroe County, New York.
B. Background
DiMino, in a prime contract with the owners of Long
Ridge Plaza Shopping Center, contracted to perform
excavating, paving, curbing, and in connection there-
with the installation of appurtenant work' consisting of
(1) a water distribution system including the piping,
valves, fire hydrants, and other piping and fitting ap-
purtenances and (2) the cast iron sanitary sewer system
and numerous runs of storm sewers in cast iron pipe.
(All of such appurtenant work to be 5 feet outside of
the building line.)
DiMino, as a member of the excavating and paving
division of BTEA, was a party to a current collective-
bargaining agreement with Local 435. Under the col-
lective-bargaining agreement the work in dispute is as-
signed to laborers.' This contract does not provide for
settlement of jurisdictional disputes by Joint Board
procedures.
The Employer, as he had for approximately 20 years,
assigned the disputed work to the laborers in the in-
stant case upon beginning work under its contract in
1969.
Hereinafter referred to as appurtenant work or disputed work
Operating Engineers and Teamsters do under existing agreements per-
form part of the excavating and grading work not specifically assigned to
laborers
The Employer did sign an agreement with the Plumbers in 1969, which
expired on April 30, 1970, and which it refused to renew However, it did
not hire any plumbers from Local 13 during the life of the agreement
195 NLRB No. 99
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 13, after the expiration of its contract with
DiMino, made several oral demands to DiMino re-
questing the negotiation of a new contract. On or about
June 24, 1971, Local 13 by mail requested negotiations.
Christopher Farrel, president of Local 13, in several
conversations with DiMino informed DiMino that
pipelaying outside of 5 feet of the building line was the
work of the plumbers. On or about June 28, 1971, Local
13 began picketing the Long Ridge Plaza construction
site. DiMino, on the evening of June 28, placed a sign
at one of the entrances to the construction site reserving
this gate for the employees of the delivery of supplies
to DiMino. However, Local 13, while picketing the
reserved gate (or entrance), continued to picket other
entrances to the construction site. Local 13's picketing
ended on or about June 30, 1971.10
C. Contentions of the Parties
As to the merits of the dispute , Laborers contends
that the evidence abundantly supports the assignment
of the work to employees it represents . The Plumbers
urged at the hearing that its only purpose in picketing
was for the purpose of having DiMino renegotiate his
previous contract with the Plumbers ." The BTEA took
no position as to the assignment , other than requesting
an areawide award because of numerous disputes be-
tween the Laborers and Plumbers in the area over the
work herein involved . The Employer, DiMino, sup-
ported the Laborers claim to the work.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated.
We find that the record facts recited above provide
reasonable cause to believe that Local 13 sought to
induce employees of DiMino and other contractors en-
gaged in construction work at the site to engage in work
stoppages with an object of forcing or requiring
DiMino to assign the disputed work to members of
Local 13, rather than to its own employees represented
by Laborers Local 435. Thus we find the dispute is
properly before the Board pursuant to Section 10(k) of
the Act. We further find that the Employer is not a
party to the procedures for settlement of jurisdictional
'° The signs carried by the Plumbers pickets merely indicated that
DiMino did not have a contract with Local 13 Local 13 asserts that this
picketing was merely organizational picketing However, in the light of the
entire combined record, we conclude that the picketing had for its object the
assignment of the disputed work to members of Local 13 rather than to
DiMino's employees represented by Local 435
" Under settled Board policy, improper pressure by a union other than
the one which has been assigned the work is not necessarily a prerequisite
to the existence of a Section 10(k) dispute Pulitzer Publishing Company,
187 NLRB No 35, National Press Incorporated, 186 NLRB No 26
disputes of the National Joint Board or any other
voluntary method of settlement; therefore, this matter
is within the Board 's jurisdiction to hear and deter-
mine. 12
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving due
consideration to various relevant factors."
1. Certification and collective-bargaining agreements
Neither of the labor organizations involved herein
has been certified by the Board as the collective-bar-
gaining representative for a unit of the Employer's em-
ployees, so that the claims of both the Laborers and the
Plumbers are unaffected by this factor.
However, DiMino and Laborers are parties to a con-
tractual arrangement under which the type of work in
dispute has been assigned to the Laborers. Plumbers
have never been assigned this type of work by DiMino
and was not a party to any collective-bargaining agree-
ment with DiMino at the time the dispute arose. Ac-
cordingly , we find that the contractual arrangement
between the Laborers and the Employer favors the La-
borers.
2. Company and area practice14
The record reveals that the Employer has for a
period of approximately 20 years assigned the type of
work now in dispute to laborers. Numerous other em-
ployers in the area also testified that they have assigned
laborers exclusively to perform this type of work. How-
ever, other employers testified that they use plumbers
to do this type of work. Thus, while the Employer's
practice is in favor of supporting an award to the labor-
ers, area practice in this regard is inconclusive.
3. Relative skills and ecomony and efficiency of
operation
There is no showing that the tools utilized in per-
forming the work in dispute, and other requirements in
performing such work, require a degree of skills not
possessed by the laborers. As to economy and efficiency
of operation, the record shows that this differs among
employers and specific jobs. While there was some tes-
timony by employers using laborers that they could do
the work more economically by using laborers rather
" NL R B v Plasterers 'Local 79 [Southwestern Construction Co.]. 404
U S 116
" J A Jones Construction Company, 135 NLRB 1402, NL R B v
Radio & Television Broadcast Engineers Union, Local 1212 (CBS), 364 U S
573
14 As previously noted herein , the Employer was not a party to any
agreement to be bound by Joint Board decisions
PLUMBERS , LOCAL 13 473
than plumbers such testimony was inconclusive. Ac-
cordingly, while areawide practice as to skill and
economy and efficiency would not favor either the la-
borers or the plumbers, DiMino's operations, experi-
ence, and preferences would clearly favor the laborers.
4. The National Joint Board award
The record discloses that the Joint Board has previ-
ously awarded work of the type involved in the dispute
herein to the plumbers." However, while we do con-
sider the award a factor in determining the proper as-
signment of the work in dispute, we do not consider, in
view of all the circumstances, that the Joint Board's
award should be given controlling weight.
Conclusion
Having considered all the pertinent factors, we con-
clude that employees represented by Laborers are enti-
tled to perform the work in dispute. Plumbers has ad-
duced no significant evidence in support of its claim,
whereas the record demonstrates that numerous rele-
vant and material factors support the performance of
the work by Employer's employees represented by La-
borers. In reaching this conclusion we have placed
weight upon the longtime relationship and work ar-
rangement between the Employer and the Laborers,
the demonstrated efficiency of operation the Employer
has shown by using laborers for the type of work in
dispute, the Employer's original assignment, and the
apparent desire to adhere to that assignment. Accord-
ingly, we shall award the work in dispute to employees
of Employer who are represented by Laborers. In mak-
ing this determination, we are awarding the contro-
verted work to Employer's employees represented by
Laborers and not to Laborers. This determination is
limited to this controversy only.16
" As previously noted herein, the Employer was not a party to any
agreement to be bound by Joint Board decisions
16 BTEA urges that an areawide award be made because of the frequent
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings, the National Labor Relations Board
hereby makes the following Determination of Dispute:
Employees of the Employer represented by Laborers
International Union of North America, Local 435, are
entitled to perform the work of laying piping for a
water distribution system and other piping and fitting
appurtenances, and the cast iron piping for sanitary
sewers and storm sewers from the property line to not
less than 5 feet from the building line at the Long Ridge
Plaza Shopping Center in Greece, New York.
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada, Local 13, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require Frank DiMino, Inc., to assign the
pipelaying work as described above to employees repre-
sented by Local 13.
Within 10 days from the date of the Decision and
Determination of Dispute, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, Lo-
cal 13, shall notify the Regional Director for Region 3,
in writing, whether or not it will refrain from forcing
or requiring DiMino, Inc., by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the work in
dispute to employees represented by Local 13, rather
than to employees employed by DiMino, Inc., who are
represented by Laborers International Union of North
America, Local 435.
disputes arising over the work herein involved However, since it is clear
disputes involving this type of work must be determined by the peculiar facts
of each case, in our opinion, the record will not support an order of such
scope We shall, therefore, limit our award to the jobsite where the instant
dispute arose Plasterers Local Union No 79, Operative Plasterers and Ce-
ment Masons, International Association of Houston, Texas (Southwestern
Construction Company), 167 NLRB 185, Cement Masons' Local Union No.
524 (The Penker Construction Company), 163 NLRB 609, Laborers'Inter-
national Union of North America Local 935, AFL-CIO (Interstate Drywall,
Inc), 191 NLRB No 93