Plumbers and Steamfitters Local 231

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.