Further, just last year the Louisiana State Court of Appeals upheld an interpretation of the local plumbing board which, in construing the word “premises" contained in the definition of plumbing in the state and city plumbing codes, prohibited our affiliated local union in the city of Lake Charles, Louisiana, and all persons other than licensed plumbers "from performing the work of installing, connecting, maintaining, extending and/or altering storm water, liquid waste and sewerage and water supply systems of metallic or non-metallic pipe within propcrty lines in the City of Lake Charles or elsewhere in the State of Louisiana.” (Emphasis added.)

It bears repeating that to those familiar with the "plumbing industry," there is no question that plumbing should be defined in traditional, work-practice terms, recognizing that there are situations where plumbing skills and specialized knowledge are essential for a proper installation. Such skills are generally accepted, however, as being involved in, and limited to installations occurring inside of a building. Indeed, national practice indicates that the only time plumbers are anywhere near a job site where outside utilities are being installed is where such work occurs in connection with the erection or repair of a building in which plumbers are then engaged. However, neither the public's health or safety nor the skills of a plumber are involved where the work requires digging of holes and trenches, where the work tasks relate to the loading, unloading or distribution of pipes, tools, equipment or other related devices, and where such installations occur outside of a building, as in streets, highways, parking lots, through and on open fields, etc.

Of course, there is a threat inherent in all codes of potential antitrust violations, and lawsuits for injunctions and declaratory judgments, including backpay, may be instituted by parties damaged by code-enforcing authorities. However, such efforts are costly and time-consuming, and very often require simultaneous political action in state legislatures and local councils. Moreover, with the effort expended by HUD in providing incentives to cities and towns seeking certification or recertification under the "workable Program," the Laborers' International Union decided to concentrate its efforts on effecting constructive changes in existing national model codes, rather than through piece-meal litigation whenever such codes were improperly interpreted and applied. Further, by eliminating objectionable features in the model codes, our efforts would additionally serve the public interest in providing a sound, objective basis for code administrators and enforcing authorities to insure that the true purposes for code adoption were implemented; namely, that health and safety considerations depended upon "how" the work was performed rather than by "whom" it was performed. Since our membership possesses the requisite skills and competency (and where unskilled, our members have reached appropriate levels of competency with minimal on-the-job training), we felt certain that by effecting changes in the codes to allow for open and equal competitive bidding opportunities, that each owner, taxpayer and consumer-and thus, the public in general-would obtain a full and fair return for their investments.

This International Union's efforts to effect remedial changes in model codes brought it into contact with the four major nationally recognized plumbing code bodies: The American National Standards Institute (ANSI-formerly United States of America Standards Institute [USASI]); Building Officials Conference of America (BOCA); International Association of Mechanical and Plumbing Officials (IAPMO); and the Southern Building Code Congress (SBCC). At the time of our contact with these organizations, all of the code definitions of plumbing had common characteristics: they incorporated language which required a licensed plumber to perform work involving "drainage lines" "within or adjacent to" a building or, as was even more explicit in the case of the IAPMO Code, a licensed plumber was required for any work performed "within property lines."

AMERICAN NATIONAL STANDARDS INSTITUTE (ANSI)

The ANSI Plumbing Code, adopted in 1955, is referred to as the National Plumbing Code. Because of the emphasis which the federal government, principally through HUD, was placing on Workable Programs, urban renewal and "Operation Breakthrough" programs, etc, a committee was formed within ANSI (A.40) to revise and update the ANSI code. (The Building Officials Conference of America [BOCA], an original sponsor of the National Plumbing Code Revision Committee, withdrew its sponsorship and eventually published its own code because ANSI procedures prevented annual updating).

As previously noted, the Federal government's increased interest and emphasis in modernizing code provisions, and the desire, by ANSI, to be in a position to have its code in a form and position to receive HUD preference, caused ANSI to seek to accelerate revision activities. Further, its own National Plumbing Code had become stale through dis-use. Thus, as noted in the 1968 report of the National Commission on Urban Problems, while the National Plumbing Code bad, in the past, been of "primary importance" in the field, other plumbing codes have risen to prominence "because of the failure since 1955 to revise the National Plumbing Code. The [Commission's] survey found that the National Plumbing Code was used by only 43.9% (1,438) of the 3,273 units which had adopted a building construction code. This means that many local governments (2,629 or 65% of all units) either do not have a plumbing code or use the BOCA, Western, or a plumbing code other than the National Plumbing Code." Thus, when the Laborers' International Union became a member of ANSI, the Revision Committee was rather frantically engaged in seeking to reach an accommodation among the Committee members for a revised National Plumbing Code which would meet modern day standards. The Committee, however, was beset with procedural problems, such as the pleas by interested parties, including this International Union, for an opportunity to participate in Committee deliberations. Indeed, only after long and continuous urging, and after the Committee had finished its work and issued its report, was the request of the Laborers' International Union for membership on the Committee eventually granted. While the full story is interesting, in the interest of brevity, suffice it to say that after numerous hearings and internal appeals within the ANSI structure, the consensus necessary to approve a revision and updating of the National Plumbing Code was never obtained, and the National Plumbing Code still contains archaic and outmoded provisions which were adopted in 1955. As a consequence, the National Association of Home Builders withdrew its support and has ceased to recommend the National Plumbing Code for local adoption; and it is our understanding that HUD has likewise ceased to recognize the National Plumbing Code as containing acceptable standards.

BUILDING OFFICIALS CONFERENCE OF AMERICA (BOCA)

The Laborers' International Union obtain membership in BOCA and, following BOCA procedures, submitted proposed revisions to the definition section of the BOCA Basic Plumbing Code. Similar action and revisions were instituted by the National Utility Contractors Association and the Associated General Contractors of America. Hearings were held on our proposals, among others, by the Plumbing Code Changes Committee during January 1970, in Lexington, Kentucky. The Code Changes Committee, in its report to be submitted to the May 1970 BOCA Convention, refused to adopt our suggested changes (although the Committee did recommend a modification to the definition of plumbing, its recommended change failed to eliminate the objectionable features of the existing definition).

Two months before the holding of the BOCA Convention, in February 1970, the United States District Court for the Southern District of Indiana rendered a decision in the case of White v. City of Evansville, Indiana, 310 F. Supp. 569, ruling that the plumbing code for the City of Evansville, Indiana, violated the United States Constitution. The lawsuit was commenced by two Negro laborers who charged that the plumbing ordinance for the City of Evansville, Indiana, was arbitrary, unreasonable, and unconstitutional on its face and as applied, because it required that only licensed plumbers be permitted to lay sewer pipe from main sewers or side sewers to buildings or structures within property lines. After trial and argument, the court found (1) that the ordinance required a license for work performed within property lines, but that the work performed on both sides of the property line was identical; (2) that the evidence was conclusive that Laborers had laid sewer pipe outside of buildings for over thirty years and that regardless of whether such lines had been laid inside or outside of public or private property lines, the work has been performed competently, without any hazard to the health or safety of the community or its residents; (3) that there was no difference shown in the materials used or the skills required, or the manner in which the work was performed regardless of which side of the property line the laborer worked; and (4) that there was no relationship between the inspection given to work performed by plumbers within property lines, as compared with the same work performed by laborers within property lines.

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On the basis of the foregoing findings, the court determined that the code was arbitrary and unreasonable in its application in restricting the performance of work to a limited class of persons (licensed plumbers), and that such arbitrary and unreasonable application rendered the code unconstitutional under the Fourteenth Amendment to the United States Constitution. The court also noted that there were no Negroes who are licensed to be master or journeyman plumbers under the code and that, therefore, on its face and as applied, the code produced de facto discrimination against Negroes and, for this additional reason, violated the Fourteenth Amendment to the United States Constitution. The foregoing court decision was brought to the attention of the delegates to the May 1970 Annual Conference of BOCA. After considering the Code Committee's report and the views of the proponents for changes, the delegates unanimously voted to adopt our proposed definition, thereby eliminating such objectionable clauses as “adjacent to the building” and phrases referring to work to be performed on "premises.” Accordingly, the present definition of the BOCA Basic Plumbing Code, as revised at the May 1970 Conference, now meets the legal test set forth by the Federal District Court in Indiana and this code stands as the one national model plumbing code which, at the present time, operates in the public interest.

INTERNATIONAL ASSOCIATION OF MECHANICAL AND PLUMBING OFFICIALS (IAPMO) Following our successful efforts to amend the BOCA Basic Plumbing Code, the Laborers' International Union submitted similar remedial proposals to IAPMO for consideration at its annual conference to be held during September 1970 in Seattle, Washington. IAPMO's Code, termed the Uniform Plumbing Code, is particularly objectionable because instead of including provisions which are susceptible to varying interpretations, the Uniform Plumbing Code specifically mandates that only licensed plumbers may do the pipelaying work which occurs "within property lines." Moreover, because various code groups were working on drafts of a model One-and-Two Family Dwelling Code and a model code dealing with factory-produced building sand building components, both of which contemplate inclusion of the Uniform Plumbing Code, the Laborers' International Union believed there was urgent need to bring the legal and historical facts to the attention of the IAPMO membership in an effort to effect the necessary remedial changes.

At the outset, we experienced procedural difficulties. Our proposals for revision of the Uniform Plumbing Code were submitted well in advance of the time specified in the IAPMO Bylaws. These bylaws specify that any proposed amendments "shall be presented to the membership at least three days prior to the annual business coneference or any special business meeting of the general membership. .. No provision of these bylaws, however, shall prevent the members of the Association from altering or amending any amendment presented for their consideration provided such change relates to the same subject matter." Nevertheless, although other proponents suggested changes to definitions which were accepted by IAPMO for submission to the membership, and notwithstanding the fact that our proposal was submitted in the last week of July 1970, a full week before the running of the thirty-day requirement in the bylaws, we were advised by IAPMO that our proposals were untimely and could not be deemed as dealing with the same "subject matter." Notwithstanding the foregoing, our representative, who attended and observed the IAPMO proceedings, has been assured that our proposals will be retained on the agenda for a hearing by the code changes committee some time in March or April, 1971, and that our proposed amendments will be deemed timely and be submitted to the IAPMO membership for consideration at its September 1971 Conference.

While we have been successful in attempting to have our views regarding the Uniform Plumbing Code considered by the membership of IAPMO, the alternative to waiting for 1971 procedures to unfold is litigation. We considered, but rejected this alternative on various grounds. not the least of which was that the litigation would undoubtedly carry the parties well into the spring of 1971, at which time our proposed revisions would be before the IAPMO Code Changes Committee for consideration anyway. Nevertheless, we are concerned and will be watchful of the extent to which the Uniform Plumbing Code is adopted or proposed (as in the One-and-Two Family Dwelling and factory-produced housing fields) without appropriate safeguards to eliminate the deleterious effects emanating from the present definitions.

SOUTHERN BUILDING CODE CONGRESS (SBCC)

Finally, the Laborers' International Union submitted proposed changes to the Southern Standard Plumbing Code, the official code of SBCC. Unlike our experience with IAPMO, our proposals were accepted as timely filed and an opportunity for the delegates to the SBCC Convention to consider our proposals on their merits has been assured. The SBCC annual conference is scheduled for November 1-5, 1970, in Atlanta, Georgia, and groups such as the National Utility Contractors' Association, the Associated General Contractors of America, and this International Union have proposed that the definitions adopted by the delegates to the BOCA conference be adopted by SBCC in lieu of their present objectionable provisions. Since the voting delegates of SBCC, like the BOCA delegates, are all building officials who, in the daily performance of their official duties are acting in and on behalf of the citizens in their communities, we have every reason to except fair and objective consideration of our proposals and we anticipate favorable action thereon.

CONCLUSION

It is clear that all model code bodies are, by the nature of their organization and work product, engaged in quasi-legislative activities in the drafting and promulgation of code guidelines and standards. As a result, these code drafting organizations are imbued with a public trust to ensure that in the drafting of a plumbing code, for example, no unreasonable restraint on competition is included which would, in its ultimate effect, limit the industry to a particular class of contractors and members of a particular union. Indeed, the definitions which we have been seeking to revise have already been declared unconstitutional as arbitrarily and unreasonably depriving persons of their property without due process of law, and the antitrust implications are equally discernible.

Thus, with the exception of the BOCA Basic Plumbing Code, the present definitions in the National Plumbing Code, the Uniform Plumbing Code, and the Southern Standards Plumbing Code all restrict the job tasks attendant to the laying of drain tile to master and licensed plumbers. Such limitation has at least a two-fold effect: first, utility contractors, paving contractors, excavating and other general contractors are denied the right even to bid on work which they have heretofore performed almost exclusively with employees of their choice; secondly, such codes totally disregard the skills and competency of non-licensed individuals, such as members of this International Union, but nevertheless result in denying them the free opportunity to engage in their historical and productive livelihood. There is, therefore, every reason for the Laborers' International Union to be vitally concerned and actively involved in changing these code definitions in order to prevent the economic extermination of utility and general contractors, and the consequent abolition of pipelayers from their employ.

In addition, we believe that by our vigilance and code activities we are moving in the mainstream of progressive action in the construction industry and in the national economy as well. In the 1968 report of the Council of Economic Advisors to President Johnson, it was noted that—

Changes in construction techniques which would improve productivity and afford at least a partial offset to rapidly rising wages have been slow in coming. This has been especially true in many urban areas where standards are rigidly controlled under local building codes. These codes, originally intended to protect the public from inferior design, materials, and workmanship, have been slow to adjust to the opportunities afforded bu new materials and methods. They have thus retarded the advancement made possible by developing technology and have preserved high cost techniques. Both the smaller specialized contractors and the construction trades unions have resisted changes in these codes. The latter have been especially opposed to changes in the allocation of work among different categories of craftsmen and to the use of prefabricated parts. (Emphasis added).

The Laborers' International Union was one of the first international unions to adopt and develop literacy, job and skill training for persons employed at its calling and, through MDTA and collectively-bargained programs, we have continually sought to upgrade skills and provide current knowledge of materials and construction techniques so that those whom we represent will continue to perform to the complete satisfaction of the owner, the employer, and the public. We have never countenanced any form of so-called "featherbedding"

practices, and we have continually stressed the factors of efficiency and economy so that the owner, contractor, and taxpayer receive a full day's work for a fair day's pay. However, unless concerted efforts at code revision succeed, existing codes will produce domino-like results in the form of increased taxpayers' costs, eventually resulting in a limitation on the amounts of rehabilitational or urban renewal commitments and projects, with an ultimate loss not only to the urban poor and the public in general, but also a limitation on the extent to which this International Union can endeavor to devise novel and far-reaching programs of individual and collective urban assistance.

While we have expressed concern lest the current one- and two-family dwelling code and the factory-produced housing research project incorporate the Uniform Plumbing Code without adequate revisions, we do regard with interest the Model Codes Standardization Council which is presently working on a code which would seek to standardize the definitions used in model codes. The Council is made up primarily of representatives from BOCA, SBCC, the American Insurance Association (AIA), and the International Conference of Building Officials (ICBO). While various government agencies and private groups are also supposed to be involved in the Code Standardization Council's work, none of the Council's representatives has contacted this International Union to solicit our views or comments. Nevertheless, we believe this type of approach to codes constitutes a step in the right direction and, assuming the standardized definitions afford protection to the public interest and are acceptable to and adopted by other code bodies, denotes a major breakthrough in enlightened code administration.

Finally, while it has been reported that the Department of Housing and Urban Development has required state and local governments having Workable Programs for Community Improvement to change existing codes as a necessary condition for obtaining re-certification of their programs, HUD has never officially required any changes in the definitions of electrical or plumbing codes to allow utility contractors and laborers in their employ to perform work which, under existing restrictive definitions, can only be performed by licensed personnel. In light of the foregoing presentation and the legal ramifications posed by code enactments which restrict competition and the right to work, it would seem that HUD's commitment to the public, as reflective of a national interest under federal programs, would require that due regard be focused upon this sorely neglected area of citizen concern.

Mr. SOUCIE. That completes my statement.

Mr. KLUCZYNSKI. I am trying to help the small businessman.
Mr. SOUCIE. All right.

Mr. KLUCZYNSKI. We listened to the testimony last January in Washington, I believe, and you would suggest that we get the testimony taken last January and also today with your testimony included, the statement made by Maurice Fancher and take it up with HUD; is that right?

Mr. SOUCIE. That is right.

Mr. KLUCZYNSKI. Well, I don't know that that should be much of a problem unless HUD has got some opposition to it.

If it is just a matter of $17 on a mobile home, I can't understand that.

We will look into it, I will guarantee you that.

Mr. SOUCIE. Well, we would appreciate it.

Mr. KLUCZYNSKI. And keep in touch with you people who have been witnesses before this committee, that we will do; I don't know what else we can do.

The next witness is Robert McMillen.