E. L. & S. Contracting Co., Inc.

National Labor Relations Board - Board Decisions

Aug 8, 1977

231 N.L.R.B. 158 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 24, The United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-
CIO (E. L. & S. Contracting Co., Inc.) 1 and Local
1027, the Federation of Employees Union. Case
22-CD-283
August 8, 1977
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Local 1027, the Federation of
Employees Union,2 alleging that Local 24, the
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, 3 has violated
Section 8(b)(4)(D) of the Act. Pursuant to notice, a
hearing was held on May 3, 5, 6, and 7, 1976, at
Newark, New Jersey, before Hearing Officers Mi-
chael Lightner and Edward Thomas. Thereafter, on
November 26, 1976, the Board remanded this
proceeding to the Regional Director for the taking of
further evidence. Pursuant to that remand and upon
proper notice, a further hearing was held on
December 20 and 21, 1976, at Newark, New Jersey,
before Hearing Officer Robert M. Archer. All parties
appeared at both hearings and were afforded full
opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues. Plumbers filed a brief after the first
hearing; Plumbers and the Federation filed briefs
after the second hearing; and Plumbers also filed a
brief in reply to the Federation's brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the basis of the entire record in this case,
including the submitted briefs, the Board makes the
following findings:
1. THE BUSINESS OF THE EMPLOYER
E. L. & S. Contracting Co., Inc., hereinafter
referred to as the Employer, is a New Jersey
corporation with its principal office located at
Irvington, New Jersey, where it is engaged in the
plumbing business. The parties did not stipulate that
i Name of the Employer appears as amended at the first hearing.
2 Hereinalter referred to as the Federation.
: Hereinafter referred to as Plumbers.
231 NLRB No. 26
the Employer was engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. However,
the record reveals that the Employer had a contract
amounting to some $78,000 to perform certain
plumbing work at the To-Sault Projects, Newark,
New Jersey, the site giving rise to the instant dispute.
In turn, F & Y Mechanical Contractors, Inc., the
plumbing general contractor on this site, and the
company from which the Employer had secured its
subcontract, had a contract for $1.25 million to
perform work on the site. In such circumstances, we
find the Employer is engaged in commerce within the
meaning of the Act at the site giving rise to the work
in dispute, and that it will effectuate the policies of
the Act to assert jurisdiction here. 4
II. THE LABOR ORGANIZATIONS INVOLVED
At the hearings, the parties refused to stipulate that
either labor organization is a labor organization
within the meaning of Section 2(5) of the Act. The
record reveals, however, that both Plumbers and the
Federation exist for the purpose of bargaining with
employers for employees concerning wages, hours,
and other terms and conditions of employment, and
both labor organizations allow employees to partici-
pate in their functions. We therefore conclude that
both labor organizations are labor organizations
within the meaning of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The present dispute arose over the assignment of
certain plumbing work at the To-Sault Projects in
Newark, New Jersey. As noted supra, the Employer
was a plumbing subcontractor on that site and it
assigned the work it had on the site to employees
represented by Plumbers. However, before the
Employer had actually begun working on the site, the
Federation contacted the Employer and sought to
have employees it represented perform the work the
Employer had on the site. The Federation claimed
that it had a contract with the Employer which
required the Employer to look to the Federation for
employees on jobsites in New Jersey on which the
Employer worked.
According to the testimony of Henry Street, an
official for HRH Construction Corporation, the
overall general contractor on the site, a telephone
conversation took place in late March 1976 among
Street, the Employer's president, Laurence Smith,
and a representative of Plumbers, James McManus.
4 Cf. Sheet Metal Workers International Association, Local Union No 299,
AFL-CIO, and Allen Stout, its agent (S M. Kisner and Sonsy, 131 NLRB
1196(1961): FPC Advertising, Inc., 224 NLRB 1372 (1976).
158
LOCAL 24, PLUMBERS
According to Street, Smith asked McManus if he
could utilize employees represented by the Federa-
tion on the site. McManus said he could not. Street
testified he then asked McManus if there were some
way the situation could be worked out, but McMa-
nus indicated that if any Federation-represented
employees were used on the site McManus would
pull Plumbers-represented employees off the site.5
The Employer refrained from giving any work to
Federation-represented employees and used Plumb-
ers-represented employees for its work on the site.6
B. Work in Dispute
The work in dispute concerns the installation of
lavatories, water closets, bathtubs, kitchen sinks, gas
ranges, showers, and urinals for the A & B Towers
and the installation of lavatories, water closets,
kitchen sinks, and gas ranges for the Low Rise
Project Building at the To-Sault Projects, Newark,
New Jersey.
C. Contentions of the Parties
Plumbers contends that it has a contract with the
Employer for its members to perform the work in
dispute and that it is the only labor organization in
the geographical area whose members are "autho-
rized" to perform plumbing work. The Federation
contends that it entered into a contract with the
Employer for its members to do certain work
throughout the State of New Jersey, that its contract
was executed with the Employer before any other
contract for similar work relating to plumbing, and
that the Employer was unlawfully induced to employ
another union's members at the To-Sault site. The
Employer contends it has a contract with Plumbers
for performance of the work in dispute, that it has no
contract with the Federation concerning this work,
and that it is satisfied with its assignment of the work
to Plumbers-represented employees.
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 there is reasonable cause to
believe that Section 8(b)(4)(D) of the Act has been
violated and that there is no agreed-upon method for
voluntary adjustment of the dispute. As to the latter
point, the record reveals no agreed-upon method
among the parties for the resolution of the instant
dispute. With respect to whether reasonable cause
exists to believe Section 8(b)(4)(D) has been violated,
5 At the time. F & Y Mechanical Contractors was utilizing a number of
employees represented by Plumbers.
6 While Street testified as noted supra. both Smith and McManus denied
that Plumbers had ever threatened the Employer in an) manner.
we note that, according to the HRH Construction
official, Henry Street, in late March 1976, Plumbers
Representative McManus threatened to "take his
men off the job" should the Employer assign any of
the work in dispute to Federation-represented
employees. This alleged threat to strike by a
representative of Plumbers establishes reasonable
cause to believe Section 8(b)(4)(D) of the Act has
been violated. While the threat was denied by
McManus and Smith, a conflict in testimony does
not prevent the Board's proceeding under Section
10(k) for, in this proceeding, the Board is not charged
with finding that a violation did, in fact, occur but
only that reasonable cause exists for finding such a
violation. In such circumstances, without ruling on
the credibility of the testimony at issue,7 we find
reasonable cause exists.
E. The Merits of the Dispute
Notwithstanding our conclusion that there exists
reasonable cause to believe a violation of Section
8(b)(4)(D) has occurred in this case, under the
extremely unusual set of facts involved in this
proceeding, we are quashing the notice of hearing
herein.
As we noted above, upon the close of the first
hearing in, this proceeding and the transfer of the
case to the Board, the Board remanded this proceed-
ing to the Regional Director for the purpose of
conducting a further hearing. We did so because we
were unsatisfied with the extent of record evidence
adduced at the first hearing bearing on issues
concerning the status of the Employer as an entity
engaged in interstate commerce and the contested
statutory labor organization status of the Federation,
but, most especially, the evidence concerning which
of the two competing Unions would be entitled to the
work in dispute should the Board make a determina-
tion of the dispute in this case. To that end, with
respect to the factors to consider, we indicated in the
remand order that evidence "including but not
limited to industry practice, area practice, and
Employer practice concerning the work in dispute,
considerations of economy and efficiency, job skills
and safety involved in performing the work in
dispute vis-a-vis the unions involved herein, and any
other factors which are relevant to a determination of
this dispute" were to be adduced at the second
hearing. Upon the remand, a further hearing was
held and, thereafter, the case was again transferred to
the Board for decision. Unfortunately, we are again
unable to render a decision herein.
7 See, e.g.. Local Union No. 334., Laborers International Union of North
America, AFL-CIO(C. H. Heist Corporation), 175 NLRB608. 609(1969).
159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the combined records before us, we are
not able to pass on the issues of the Employer's status
as an entity engaged in interstate commerce and the
labor organization status of the Federation. We have
disposed of those issues, above. However, we are
unable to award the work in dispute because, on the
record before us, we are still unable to evaluate
meaningfully the traditional factors used in deter-
mining which competing employee group should be
awarded the disputed work. From the record, we do
know that neither labor organization has been
certified as the collective-bargaining representative
of employees of the Employer; we do know there are
no awards to either Union concerning the disputed
work; we find that employees represented by either
Union would possess the skills necessary to do the
work and would be equally adept in safety matters
related to the work; we find that both Unions are
under contract to various employers in the county in
which the work in dispute arose; we find it is no
more efficient to utilize one of the Union's members
over those of the other Union; and we find the
Employer has no meaningful past practice on which
we can rely here.8 Thus, the above factors do not
favor assignment to employees represented by either
Union and make our consideration of the remaining
factors in this case that much more important.
Unfortunately, the balance of the record leaves
questions we cannot resolve.
Foremost among the claims of both Unions was
that each had a collective-bargaining agreement with
the Employer which covered the work in dispute. We
note that the contracts the Employer had with F & Y
Mechanical Contractors called for the Employer to
use "Local 24 plumbers ... in accordance with the
request of F & Y Mechanical Contractors, Inc." 9 On
October 31, 1975, the Employer signed a contract
with Plumbers recognizing that Union as its employ-
ees' bargaining representative within Plumbers juris-
diction and agreeing to utilize Plumbers hiring hall in
seeking employees. It is upon this contract that
Plumbers collective-bargaining agreement claim
rests.
8 While incorporated, the Employer is, in essence, an individual
proprietor. Laurence Smith has no steady employees and either he
personally does the work for which he contracts or he hires employees to
assist in a particular job. He had only hired employees on one other job
prior to the one here in question.
Only the contract the Employer had with F & Y Mechanical
Contractors covering the A & B Towers was formally entered into evidence
at the first hearing. However, it is clear from the record that the Employer's
other contract with F & Y Mechanical Contractors covering the low-rise
building also contained this above-referred-to clause.
F & Y Mechanical Contractors itself had a collective-bargaining
agreement with Plumbers which included a provision that it would utilize
Plumbers hiring hall in seeking employees.
I' The Hearing Officer rejected the offer of proof because he thought
that the July 1975 Federation contract had been authenticated and that this
was enough. However, the Employer also denied the July 1975 contract
contained his signature.
However, there were also entered into evidence in
the first hearing, over Plumbers objection, two
contracts allegedly signed in July and September
1975, purportedly between the Employer and the
Federation, by which the Employer recognized the
Federation as the exclusive bargaining representative
of its employees at all projects at which the Employer
worked in the State of New Jersey. However,
Laurence Smith, the president of the Employer,
denied he had ever signed the July and September
contracts and he disavowed his signature on those
contracts. Smith did agree that he had signed a
document with the Federation, but he stated that this
document, which he said he had signed in June or
July 1975 and which related to fringe benefits, was a
one-page document relating to a specific job in
Jersey City, New Jersey, which had ended in August
1975. We do note that the Hearing Officer at the
second hearing rejected an offer of proof by counsel
for the Federation that, if she testified, Smith's wife
would confirm that the signature on the September
1975 Federation contract was that of her husband.'0
Based on the foregoing, it is clear that the factor of
collective-bargaining agreements cannot be relied
upon to favor an award to employees either Union
represents. The contracts which the Federation
claims it had signed with the Employer antedate the
contract the Employer signed with Plumbers. How-
ever, the Employer denies signing these contracts
with the Federation and we cannot make credibility
resolutions in this 10(k) proceeding. Accordingly, the
Federation's contracts cannot be relied upon here,
but we conclude that, in these circumstances, the
Plumbers contract also cannot be relied upon.
Absent reliable evidence on the parties' collective-
bargaining agreements, we are left with the fact that
the Employer awarded the work in dispute to
employees represented by Plumbers. We conclude
here that this factor is insufficient, without more, to
warrant our award to employees represented by
Plumbers.l 1
With the record as we have described above, we
note finally that the work in dispute was completed
This contract problem is further complicated by the fact that on the
September 1975 contract with the Federation the name of the Employer is
set out as "E. L. & S. Plumbing." However, the present name of the
Employer was not approved for incorporation by the State of New Jersey
until November 1975, following the State's October 1975 rejection of the
Employer's attempt to incorporate as "L & S Constracting." These
questions arise: Would, in September 1975, the Employer sign, as he
allegedly did, as "E. L. & S...." if he were then seeking to incorporate
under another name, i.e., "L & S . ." and how was the September name so
close to that approved only in November 1975? The Federation agents
insisted that the Employer signed the contract in September 1975 and that
the name "E L & S Plumbing" was typed in at that time.
" Again, credibility resolutions arise, for we note that Henry Street
testified that, in March 1976, when the Federation's representatives
approached Smith about working at the site, Smith called McManus, the
Plumbers representative, to see if he could use employees represented by the
Federation. Were this testimony of Street credited, it would make somewhat
160
LOCAL 24, PLUMBERS
in October 1976. While the completion of disputed
work does not ordinarily herald the end of a 10(k)
proceedings we find in this case that it should. We
see no use in a further remand, as the parties have
already been given two opportunities to ferret out
what evidence may be advantageous to their respec-
tive positions. Moreover, where we have no evidence
of similar disputes in the past between these parties
and no evidence this type of dispute will arise again,
we can see no useful purpose for keeping this
suspect the strength of the Employer's preference for Plumbers-represented
employees only. We note that Smith, in essence, denies this testimony of
Street. but we do note that Smith admits discussing the To-Sault Projects
with the Federation in 1975. The reasons for his doing so are unexplained.
proceeding ongoing where the work over which the
parties are quarreling is completed in any event.
Thus, under the extremely unusual facts of this
particular proceeding, we shall quash the notice of
hearing herein.
ORDER
It is hereby ordered that the notice of hearing
issued in this case be, and it hereby is, quashed.
12 See, e.g., Sheet Metal Workers' International Association (AFL-CIO),
Local No. 541 (Kingery Construction Company), 172 NLRB 1046. 1049
(1968).
161