Plumbers, Local Union No. 68

National Labor Relations Board - Board Decisions

Apr 8, 1977

228 N.L.R.B. 1298 (N.L.R.B. 1977)

1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the
United States and Canada, Plumbers Local Union
No. 68 , AFL-CIO and Memorial Hospital System.
Case 23-CD-364
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Respon-
dent is a labor organization within the meaning of
Section 2(5) of the Act.
April 8, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, PENELLO, AND
WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act , as amended , follow-
ing a charge filed by Memorial Hospital System,
herein called the Employer , alleging that United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada , Plumbers Local Union No. 68,
AFL-CIO, herein called the Respondent , had violat-
ed Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring the Employer to assign certain work to
its members rather than to unrepresented mainte-
nance employees of the Employer.
Pursuant to notice , a hearing was held before
Hearing Officer Guadalupe Ruiz on December 14,
1976. All parties appeared and were afforded full
opportunity to be heard , to examine and cross-
examine witnesses , and to adduce evidence bearing
on the issues.
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.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they 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 parties stipulated , and we find , that the
Employer is a nonprofit health care facility with its
principal place of business in Houston , Texas.
During the past year , the Employer purchased goods
from outside the State having a value of $50 ,000. The
parties also stipulated , and we find, that the
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
III. THE DISPUTE
A. Background and Facts of the Dispute
The disputed work involves the removal of plumb-
ing fixtures from an old hospital and their reinstalla-
tion in a new facility. The Employer specifically
excluded this work from the construction contract
for the new facility because it felt its own mainte-
nance employees were better trained to work in
sterile or contaminated environments and better able
to accomplish the work without disrupting patient
care . The maintenance employees are not represent-
ed for the purposes of collective bargaining . Respon-
dent does not have any contracts with , or represent
any employees of, the Employer.
Marvin Peterson , counsel for Respondent , called
the Employer on November 22, 1976, and objected
to the Employer's assignment of the disputed work,
saying that this work ought to be assigned to
Respondent's members . The next day the Employer
received a letter from Respondent indicating that
Respondent had a dispute with the Employer and
intended to picket over that dispute . At a meeting on
November 29, 1976 , Ken Yarbrough , business agent
for Respondent , expressed concern that the disputed
work was not being done to area standards. Yar-
brough admitted however that "regardless of what
was said, the real purpose of the visit was to claim the
work."
B. The Contentions of the Parties
The Employer contends that the work in dispute
should continue to be assigned to its maintenance
employees . The Respondent moves to quash this
proceeding for lack of jurisdiction . Respondent
contends it has made no "actual claim " for the
disputed work and that , without such claim, the
Board cannot proceed under Section 10(k).
C. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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) has been violated
and that the parties have not agreed upon a method
for the voluntary adjustment of the dispute.
The record discloses that Respondent made a claim
for the plumbing work by objecting on November 22,
1976, to the Employer 's assignment of that work to
228 NLRB No. 150
PLUMBERS , LOCAL UNION NO. 68 1299
its employees; at the meeting on November 29, 1976,
Respondent sent a letter to the Employer threatening
to picket over the work assignment; Respondent has
not withdrawn either the threat to picket or the claim
for the work; and there is no contractual relationship
between Respondent and Employer which would
provide for voluntary adjustment of the dispute.
Therefore, on the basis of the entire record, we
conclude that there is reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred
and that there exists no agreed-upon method for the
voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act. Accordingly, we
find that this dispute is properly before the Board for
determination, and Respondent's motion to quash
the 10(k) proceeding is hereby denied.
D. 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 following
factors are relevant in making the determination of
the dispute before us:
1. Relative skills
At the hearing, Respondent contended the mainte-
nance employees are not qualified to perform the
disputed work. This contention is advanced because
the maintenance employees had to be instructed in
the use of a new type of electrically fused plastic
pipe; however, the record also shows that this type of
pipe is so new that very few plumbers are knowledge-
able or experienced in its use. While the Employer
does not question the plumbers' qualifications, it
maintains that its employees are not only qualified
but possess additional skills necessary to perform the
particular work in dispute. Thus, several of the
maintenance employees have master plumber licens-
es. Most significantly the maintenance employees are
trained and experienced at working in sterile or
contaminated environments existing in many parts of
the hospital, and are also experienced in reducing
noise and other incidents of plumbing work which
might disturb patients or patient care.
We conclude that this factor favors the assignment
of this work to the maintenance employees.
2. Economy and efficiency of operation
The Employer contends that greater economy and
efficiency can be achieved by using its employees
rather than hiring new employees, because the use of
its maintenance staff allows it to schedule the
relocation at such times as will cause a minimum of
disruption of patient care. We agree that both these
factors favor assignment of the work to the mainte-
nance employees, particularly in view of the fact that
use of the Employer's present employees will
enhance the safety and comfort of the patients.
3. Employer' s assignment
The Employer assigned the work in dispute to, and
prefers that it be performed by, its maintenance
employees; this factor favors an award to those
employees.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors, as noted above,
we conclude that the Employer's maintenance
employees are entitled to perform the work in
dispute. The present determination is limited to the
particular controversy which gave rise to this
proceeding.
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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. The maintenance employees of Memorial
Hospital System are entitled to remove and relocate
plumbing fixtures at the Memorial Hospital System's
facilities in Houston, Texas.
2. United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, Plumbers Local
Union No. 68, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require Memorial Hospital System to assign the
disputed work to employees represented by that
labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, United Association
of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, Plumbers Local Union No. 68, AFL-CIO,
shall notify the Regional Director for Region 23, in
writing, whether or not it will refrain from forcing or
requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above
determination.