Plumbers Union Local No. 167

National Labor Relations Board - Board Decisions

Apr 21, 1976

223 N.L.R.B. 1010 (N.L.R.B. 1976)

1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers Union Local #167, United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Cana-
da and Gilbert Builders, Inc. and Central Wisconsin
District Council of Carpenters a/w the United
Brotherhood of Carpenters and Joiners .' Case 30-
CD-67
April 21, 1976
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed by the Employer, Gilbert Build-
ers, Inc., alleging that Plumbers Union Local # 167,
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the Unit-
ed States and Canada, had violated Section
8(b)(4)(D) of the Act by engaging in conduct with an
object of forcing or requiring the Employer to assign
certain work to employees represented by it rather
than to employees represented by Central Wisconsin
District Council of Carpenters a/w the United
Brotherhood of Carpenters and Joiners. A hearing
was held on January 7, 1976, before Hearing Officer
Shirley A. Bednarz. All parties appeared at the hear-
ing and all were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. Thereafter,
the Employer filed 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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error. They are
hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, Gilbert Builders, Inc., a Wisconsin
corporation with facilities located in Verona, Wis-
consin, is engaged in business in the construction in-
dustry. During the past calendar year, it purchased
and received supplies and materials valued in excess
of $50,000 from suppliers located outside the State of
1 The names of the parties appear as amended at the hearing.
Wisconsin. The parties stipulated, and we find, that
the Employer is engaged in commerce or in an indus-
try affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act, and that it will effectuate
the purposes of the Act to assert jurisdiction herein.
If. THE LABOR ORGANIZATIONS INVOLVED
The parties have stipulated, and we find, that the
labor organizations involved are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute is the attachment of backing
for toilet accessories and the installation of toilet ac-
cessories at the engineering physical science library
project at the University of Wisconsin.
B. Background and Facts of the Dispute
The Employer is engaged in the construction of an
engineering physical science library at the University
of Wisconsin, a state-owned and operated institution.
It has a collective-bargaining agreement with the
Carpenters covering employees in its employ. It em-
ploys no plumbers and has no collective-bargaining
agreement with the Plumbers Union. By law in Wis-
consin, construction projects of over $30,000 on
state-owned buildings are bid in four separate con-
tracts: electrical, plumbing, heating and ventilation,
and general. Each contract is considered a prime
contract. Gilbert Builders is the general contractor
on the library project. The specifications drawn up
by the architect on this project divide the work be-
tween the various contract crafts and the general
contractor. Attachment of backing and the installa-
tion of toilet accessories are included in the general
contractor's specifications.
Backing consists of placing wooden blocks be-
tween studs. The blocks are eventually used for the
attachment of toilet accessories. Installation consists
of attaching the accessories to the wooden blocks,
after the walls are affixed, by means of screws or
anchoring devices.
Gilbert Builders assigned its carpenters to perform
the disputed work. Jack Matrose, business agent for
Plumbers Local #167, demanded the work based
upon an agreement between Plumbers and Carpen-
ters on the international level. The Employer denied
its request. Thereafter, on December 5, 1975, Plumb-
ers Local # 167 set up a picket line and all work
ceased at the project. The picketing stopped on De-
223 NLRB No. 147
PLUMBERS UNION LOCAL NO. 167
cember 9, 1975, and the project was completed using
carpenters to perform the tasks in dispute.
C. Contentions of the Parties
The Employer and Carpenters contend there is
reasonable cause to believe that Plumbers Local
# 167 violated Section 8(b)(4)(D) and that the pro-
ceeding is properly before the Board for determina-
tion of the dispute. They contend, on the basis of the
Employer's assignment and preference, as well as
economy and efficiency of operations, that the work
in dispute should be awarded to the employees repre-
sented by Carpenters.
Plumbers Local # 167 contends that the work
should be assigned to employees it represents based
on the agreement between the two international
unions, and because of area practice.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that (1) there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated,
and (2) that the parties have not agreed upon meth-
ods for the voluntary adjustment of the dispute. As
to the first, the Employer's general superintendent,
Ray Rydberg, testified that Plumbers Local # 167's
business agent, Matrose, visited him and asked that
the work be assigned to plumbers. Matrose threat-
ened that his Union would picket the project if such
an assignment was not made . Following a meeting
held on December 4, 1975, in which the demand and
the threat to picket were repeated, Plumbers Local
# 167, on December 5, 1975, commenced picketing
the project. Picketing continued for 3 days until the
charges herein were filed. Matrose testified essential-
ly in conformity with Rydberg. Accordingly, we con-
clude that there is reasonable cause to believe that
Section 8(b)(4)(D) of the Act has been violated and
that the dispute is properly before us for determina-
tion.
The parties have no effective agreed-upon method
for the voluntary adjustment of the dispute.
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 factors? The
Board has held that its determination in a jurisdic-
2 N. L. R. B. v. Radio and Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad-
casting System], 364 U.S. 573 (1961).
1011
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing those
factors involved in a particular case.'
The following factors are relevant in making the
determination of the dispute before us:
1. Board certification and collective-bargaining
agreement
Neither of the labor organizations has been certi-
fied as the collective-bargaining representative of the
employees involved in the dispute. The Employer
does not have a collective-bargaining agreement with
Plumbers Local #167. In fact, Plumbers Local #167
acknowledges that should the disputed work be as-
signed to employees it represents the Employer
would have to subcontract such work to a firm with
whom the Local has a collective-bargaining agree-
ment, as its policy is to refuse to supply plumbers to
contractors such as Gilbert with whom it does not
have a contract. On the other hand, Carpenters has a
contract with the Employer covering this work in
general terms. Thus, the contract provides that the
Carpenters trade autonomy "consists of the milling,
fashioning, joining, assembling, erection, fastening,
or dismantling of all material of wood, plastic, metal,
fiber, cork and composition, and all other substitute
materials." The jurisdictional clause of this contract,
while not specifically referring to the work in dispute,
is broad enough to cover the assignment of such
work to employees represented by Carpenters. This
factor, therefore, tends to favor the position of Car-
penters.
2. Employer assignment and preference
The Employer has assigned the work, and prefers
an assignment, to employees represented by Carpen-
ters. These factors favor an assignment of the work
to employees represented by Carpenters.
3. Area practice
Area practice is mixed. Both plumbers and carpen-
ters have performed this type of work depending on
the contract specifications drawn up for the particu-
lar job. Thus, where the architect has included the
work in plumbing contractor specifications, plumb-
ers have received the work. But where the specifica-
tions provide that such work is to be performed by
the general contractor, carpenters have performed
the work except in those few instances where the as-
signment has been given to plumbers, with the agree-
International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A.
Jones Construction Company), 135 NLRB 1402 (1962).
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of the Carpenters, following a protest by the
Plumbers as to the original assignment. On state
projects it is the practice to place this work in the
general contractor's specifications. We conclude this
factor does not favor either party.
4. Relative skills
The employees represented by both unions are
equally capable of performing the work in dispute.
This factor favors neither group of employees.
5. Economy and efficiency of operation
The Employer constantly has carpenters on its
payroll and available to it to perform the work in
dispute. This work is of such a nature that availabili-
ty of employees to perform it is an important factor
as the work must be performed at varying stages of
construction. It cannot be forecast with precision or
certainty when those crafts would be finished, and,
hence, when the disputed work could be commenced.
Carpenters, however, are available on the site and
can perform these relatively minor jobs immediately.
On the other hand, plumbers would have to be found
and scheduled with all the difficulties and potential
for delay inherent in that situation. Plumbers Local
#167's insistence that the job be performed by a
plumbing contractor would add to this potential for
delay. It would also add to the cost of the job by
requiring the Employer to hire additional employees
(plumbers) for a short period or periods of time.
Where, as here, carpenters are available to perform
the work immediately, and plumbers are not, it clear-
ly is more efficient and economical to assign the for-
mer to do so. We conclude, therefore, that this factor
strongly favors an award of the work in dispute to
the employees represented by Carpenters.
6. The International agreement
Plumbers Local #167 takes the position that the
national agreement between the International unions
of June 29, 1965, is controlling. This agreement pro-
vides, inter alia, that ( 1) the installation of backing
for plumbing fixtures not affecting the structure shall
be the work of plumbers, and that which does affect
the structure shall be the work of carpenters; and (2)
that installation of accessories related to plumbing
fixtures such as involved herein shall be the work of
plumbers. Carpenters and the Employer claim that
the backing, as it is part of the wall unit, affects the
structure. Plumbers Local #167 claims it does not.
On the basis of the record before us we are unable to
determine whether such installation in this situation
should or would not affect the structure. Hence, this
aspect of the agreement cannot be relied upon to
support either claim. As to the installation of toilet
accessories, the agreement clearly assigns the work to
the plumbers. However, while this aspect of the
agreement favors an award of at least that much of
the work to employees represented by the Plumbers,
we conclude it is outweighed here as a relevant factor
by efficiency and economy, which support an assign-
ment to employees represented by Carpenters, who
have the skill to do all of the disputed work, and can
perform both aspects of it together when the job is
ready to be done.4
Conclusion
Based on the entire record, and after full consider-
ation of all relevant factors, we shall assign the work
in dispute to carpenters. We reach this conclusion
particularly in view of the Carpenters contract with
the Employer, the Employer's assignment and prefer-
ence, and the relative economy and efficiency of op-
eration. In making this determination we are assign-
ing the disputed work to employees who are
represented by Central Wisconsin District Council of
Carpenters a/w the United Brotherhood of Carpen-
ters and Joiners, but not to that Union or its mem-
bers.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees employed by Gilbert Builders, Inc.,
Verona, Wisconsin, who are currently represented by
Central Wisconsin District Council of Carpenters
a/w the United Brotherhood of Carpenters and Join-
ers, are entitled to perform the work of attaching
backing for toilet accessories and installation of toilet
accessories at the engineering physical science library
project at the University of Wisconsin.
2. Plumbers Union Local #167, United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and
Canada, is not entitled and has not been entitled to
force or require the Employer by means proscribed
In so concluding, it is apparent that both efficiency and economy will be
served by giving the two elements of the work in dispute to the same em-
ployees . A split in the assignment of the work would-if we were to accord
overriding weight to the International agreement covering the affixing of
accessories-effectively cancel any efficiency and economy of operation es-
tablished by our awarding all the work to carpenters. In the circumstances
of this case such a result would be unwarranted.
PLUMBERS UNION LOCAL NO. 167 1013
in Section 8(b)(4)(D) of the Act to award the above
work to its members or to employees it represents.
3. Within 10 days of the date of this Decision and
Determination of Dispute , Local Union # 167, Unit-
ed Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, shall notify the Regional Direc-
tor for Region 30, in writing , whether it will or will
not refrain from forcing or requiring the Employer
by means of Section 8(b)(4)(D) to award the work in
dispute to its members or to employees it represents
rather than to employees represented by Central
Wisconsin District Council of Carpenters a/w the
United Brotherhood of Carpenters and Joiners.