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

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