Plumbers and Steamfitters Local 231

National Labor Relations Board - Board Decisions

Apr 7, 1975

217 N.L.R.B. 304 (N.L.R.B. 1975)

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers and Steamfitters , Local 2311 and Stolte,
Inc. and United Brotherhood of Carpenters and
Joiners of America, Local Union 425.2 Case
28-CD-160
April 7, 1975
DECISION AND DETERMINATION OF
DISPUTE
interstate 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.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Plum-
bers and the Carpenters are labor organizations within
the meaning of Section 2(5) of the Act.
By MEMBERS JENKINS. KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following the
filing of charges on December 12, 1974, by Stolte, Inc.,
herein called the Employer, alleging that Plumbers and
Steamfitters, Local 231, herein called the Plumbers, has
violated Section 8(b)(4)(D) of the Act by threatening,
coercing, and restraining the Employer with an object
of forcing the Employer to assign certain work to em-
ployees represented by the Plumbers rather than to
employees represented by the United Brotherhood of
Carpenters and Joiners of America, Local Union 425,
herein called the Carpenters.
Pursuant to notice, a hearing was held before Hear-
ing Officer Lewis S. Harris on January 14, 1975. All
parties appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the issues.
Thereafter, the Employer and the Plumbers each filed
a brief.
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 of the Hearing
Officer made at the hearing, and finds that they are free
from prejudicial error.' They are hereby affirmed.
Upon the entire record in this case, including the briefs
of the parties, the Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is a California corporation engaged as
the general contractor for the National Medical Enter-
prises, Inc., in the construction of a general hospital in
El Paso, Texas, known as Sierra Center Hospital. The
value of the construction is approximately $7 million
and during the past year the Employer received from
outside the State of Texas goods and materials valued
in excess of $50,000. In accord with the stipulation of
the parties, we find that the Employer is engaged in
The name of the party appears as amended at the hearing.
2 The name of the party appears as amended at the hearing.
3 The Plumbers has excepted to the Hearing Officer's rejection as hearsay
of its Exhs. 2 and 3. For the reasons stated infra, we adopt his ruling.
III. THE DISPUTE
A. Work in Dispute
The disputed work consists of the unloading, mov-
ing, handling, and setting into place of specified items
of owner furnished-contractor installed equipment for
the Sierra Center Hospital under construction.4 Set-
ting of the equipment includes putting it in place and
trueing and leveling it, but not making the electrical,
plumbing, or sheet metal connections.
B. Background
The Employer, the general contractor on the hospi-
tal construction project, subcontracted the plumbing
work, including the connecting of equipment, to
Cooper & Cooper, Inc., which has a collective-bargain-
ing agreement with the Plumbers. The subcontract did
not specify the disputed work. The Employer assigned
the work in dispute to its employees represented by the
Carpenters, with which it has a collective-bargaining
agreement.' The Employer is not signatory to a con-
tract with the Plumbers, does not have a plumbing
license, and does not hire plumbers.
As a result of the Employer's assignment of the dis-
puted work, the Plumbers, beginning on December 12,
1974, engaged in a work stoppage and picketed with
signs reading, "On strike, Stolte, Inc., changed assign-
ment, Plumbers and Steamfitters, Local 231." Picket-
ing continued until December 14. On December 17 the
Plumbers returned to work and have continued to work
since that date.
C. Contentions of the Parties
The Plumbers contends that the work in dispute
should be awarded to employees it represents. It argues
that work similar to that in dispute has been histori-
4 The specified items follow: autopsy table, morgue sink unit, medicine
station, nourishment station, scrub station, sterilizer, solution and blanket
warmer, high speed sterilizer, washer extractor, tumbler dryer, washer steril-
izer, sonic cleaner, glass utensil washer, cart washer, x-omat processor, tine
processor, R.I. safety enclosure, countertop fume hood, glassware washer,
and decontamination washer.
5 Laborers, with which the Employer also has a collective-bargaining
agreement, may on occasion assist in unloading the disputed equipment.
Laborers do not, however, assist in setting the equipment.
217 NLRB No. 54
PLUMBERS AND STEAMFITTERS LOCAL 231
call), done by plumbers, particularly in the El Paso
area, It also argues that the disputed work by its nature
is plumbing work since the equipment (except for one
piece) requires plumbing connections, which only lic-
ensed plumbers can make.
The Employer contends that its assignment of the
disputed work to carpenters should not be disturbed
since the assignment is consistent with the Employer's
subcontracts, its collective-bargaining agreement, its
past practice, and area and industry practice. It argues
that only the carpenters have the necessary skills and
tools for setting the equipment since much of it requires
the use of heavy timbers or special fitting into recesses
and since the Employer brought a supervisor from
California who is experienced in the area. It also argues
that using its own employees, the carpenters, is more
efficient and economical.
The Carpenters did not file a brief, but it appears
from its participation at the hearing to take a position
similar to that of the Employer.
D. Applicability of the Statute
The record established that, in response to the Em-
ployer's assignment of the disputed work, the Plumbers
engaged in a work stoppage and picketed using signs
referring to the work assignment. The parties stipulated
that the disputed items are still in dispute. On this basis,
we find that there is reasonable cause to believe that
Section 8(b)(4)(D) of the Act has been violated. There
is no evidence of an agreed-upon method of settling this
dispute. Accordingly, the dispute is properly before us
for determination pursuant to 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 various relevant factors.
1. Employer assignment and practice
As indicated, the Employer assigned the disputed
work to its employees represented by Carpenters. The
record shows that the Employer's employees have un-
loaded and set similar items in hospitals which the
Employer built in California. The assignment is not
contrary to the subcontracts let on the project since the
plumbing subcontract does not mention setting the dis-
puted items and is a closed contract. In addition the
Employer has a collective-bargaining agreement with
the Carpenters but not with the Plumbers. The Em-
ployer's assignment, especially in these circumstances,
favors award of work to employees represented by Car-
penters.
2. Area and industry practice
305
A general representative of the Carpenters Interna-
tional, who lives in El Paso and covers the Southwest,
testified that items similar to those in dispute are within
the Carpenters jurisdiction and that carpenters have
done such work in a number of hospitals within the
area he covers. The business manager of the Plumbers
testified that in Texas plumbers handle the type of
equipment from unloading to setting and that the set-
ting of certain items is normally plumbing work. Since
the evidence of area and industry practice introduced
at the hearing is inconclusive, we find this factor to be
neutral.'
3. Skills and efficiency of operation
The Employer introduced evidence which shows
that many of the disputed items required special place-
ment in recesses into which the equipment is built and
that several of the items require the construction of
heavy timbers for setting. The record shows that the
Employer currently has three carpenters and two fore-
men on the job and will always have two or three
carpenters putting up partitions. The Employer has
brought from California a foreman experienced in set-
ting equipment similar to the disputed items.
Plumbers have set similar equipment on other jobs,
presumably satisfactorily. All but one of the disputed
items require plumbing connections which plumbers
must make and some contain sophisticated plumbing
apparatus. The Plumbers claims that its members will
therefore have a thorough understanding of the func-
tions of the equipment (which it argues are primarily
plumbing) and can more effectively set it.
All evidence considered, skills and efficiency weigh
in favor of awarding the work to carpenters. Although
the equipment requires plumbing connections requir-
ing plumbing skills, the connections are not in dispute.
The equipment also requires special placement and the
making of heavy timbers requiring carpentry skills.
6 As indicated, the Hearing Officer rejected as hearsay letters from two
El Paso plumbing contractors which the Plumbers sought to introduce as
evidence of area practice The letters, contrary to the contention of the
Plumbers, are not records kept in the ordinary course of business since they
were admittedly solicited by the Plumbers specifically for this hearing.
Although the rules of evidence applicable to a 10(k) hearing are not rigidly
enforced (Rules and Regulations, Series 8, as amended, Secs. 102 90 and
102 66), they are not so broad as to permit the admission of uncorroborated,
self-serving, hearsay documents, such as those in issue here Accordingly,
we have adopted the Hearing Officer's ruling rejecting the Plumbers Exhs.
2 and 3.
Moreover, admission of the letters would not affect our finding that area
practice is a neutral factor without evidence indicating the contractual
arrangements for the hospital construction referred to in the letters, the
conditions under which plumbers received the work, or the number of
hospitals constructed in the area, the letters are of minimal probative value
with respect to area practice. The letters, at most, show that plumbing
contractors employ plumbers to perform work which the particular contrac-
tors have undertaken
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
More important , the Employer has carpenters available
on the job to perform the work in dispute and has an
experienced supervisor . Although plumbers must ulti-
mately connect the equipment , there is no evidence that
a sufficient number of plumbers are available on a day-
to-day basis to perform the work in dispute.
Conclusions
Upon the entire record, and after full consideration
of all relevant factors here involved , we believe that
employees represented by the Carpenters are entitled to
perform the work in dispute. The award is supported
by the fact that the Employer assigned the work to its
employees represented by the Carpenters , that such
assignment was consistent with the Employer's collec-
tive-bargaining agreement , its past practice , and its
subcontracts, and that the employees represented by
the Carpenters have the skills and manpower available
to more efficiently perform the work . In making this
award, we are assigning the work to employees repre-
sented by the Carpenters and not to that organization
itself or its members. This award is limited to the par-
ticular controversy which gave rise to this proceeding.
Our determination herein should not be construed as
restricting the Employer from continuing to use labor-
ers in unloading the equipment in dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act , as amended , and on the basis of the forego-
ing findings and the entire record in this proceeding,
the National Labor Relations Board hereby makes the
following Determination of Dispute:
1. Employees represented by United Brotherhood of
Carpenters and Joiners of America , Local Union 425,
are entitled to perform the work of unloading , moving,
handling, and setting into place the hereinbefore speci-
fied items of equipment for the Sierra Center Hospital
of El Paso, Texas.
2. Plumbers and Steamfitters , Local 231 , is not enti-
tled by means proscribed by Section 8(b)(4)(D) of the
Act to force or require Stolte , Inc., to assign the above
work to employees represented by said labor organiza-
tion.
3. Within 10 days from the date of this Decision and
Determination of Dispute , Plumbers and Steamfitters,
Local 231, shall notify the Regional Director for Re-
gion 28 , in writing, whether it will refrain from forcing
or requiring Stolte , Inc., to assign the work in dispute
in a manner inconsistent with this Determination of
Dispute.