Sheet Metal Workers Local Union No. 141

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers International Association, Local Union No. 141, AFL-CIO and Fred B. DeBra Com- pany, Inc. and Pipefitters Union Local 329, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the U.S. and Canada, AFL-CIO. Case 9-CD-360 September 25, 1979 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, MURPHY, AND TRUESDALE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed by Fred B. DeBra Company, Inc., herein called the Employer or DeBra, alleging that Sheet Metal Workers International Association, Local Union No. 141, AFL-CIO, herein called the Charged Party or the Sheet Metal Workers, had vio- lated 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 employees represented by Pipefitters Union Local 392, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the U.S. and Canada, AFL- CIO, herein called the Pipefitters. Pursuant to notice, a hearing was held before Hear- ing Officer Raymond D. Neusch on May 2, 4, and 8, 1979, in Cincinnati, Ohio. All parties appeared and were afforded full opportunity to be heard, to exam- ine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. Thereafter, briefs were filed by the Sheet Metal Workers, the Pipefitters, and the Employer. 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 Hearing Officer's rul- ings 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: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, an Ohio corporation with its principal place of business in Cincinnati, Ohio, is engaged in the busi- ness of mechanical contracting. During the 12 months preceding the hearing, a representative period, the Employer purchased goods and materials valued in excess of $50,000 directly from suppliers located out- side the State of Ohio, which goods and materials it caused to be shipped in interstate commerce directly from points outside the State of Ohio to its Cincin- nati, Ohio, location. During the same representative period the Employer had a gross volume of business in excess of $500,000. Accordingly, we find, as the parties have stipulated, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) cf the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVO()LVED The parties stipulated, and we find, that the Pipefit- ters and the Sheet Metal Workers are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute As set forth in the notice of hearing the work in dispute consists of "the handling and installation of fluid type solar collector panels at the Montgomery Ward project in Sharonville, Ohio." However, at the hearing the parties entered into a stipulation concern- ing the work in dispute, and on the basis of this stipu- lation we find that the work in dispute consists of the handling and installation of a hydronics heating sys- tem using fluid type solar collector panels at the Montgomery Ward project in Sharonville, Ohio. In June 19781 DeBra was awarded a subcontract by W. E. O'Neil Construction Company (hereinafter called O'Neil) to perform the heating, ventilating, and air-conditioning work on the Montgomery Ward Midwestern Distribution Center construction project. for which O'Neil is the general contractor. At that time the only labor organization with which DeBra had a collective-bargaining relationship was the Pipe- fitters.2 In August DeBra subcontracted the sheet metal work portion of its subcontract with O'Neil to Glenway Sheet Metal Company, which was party to a collective-bargaining agreement with the Sheet Metal Workers. When DeBra was awarded the subcontract for me- chanical work, it did not involve the work in dispute here. Subsequently, however, the owner of the project decided to install a solar heating system in addition to the boiler system for which DeBra had orginally sub- contracted. DeBra successfully bid on the solar work I All dates hereinafter are 1978, unless otherwise indicated. 2 On March 15, 1979, the Sheet Metal Workers was certified to represent certain employees in a division of DeBra called Air Master Heating & Cool- ing. None of these employees worked for DeBra n the Montgomery Ward project. 245 NLRB No. 43 10o SHEET METAI. WORKERS LOC. UNION NO. 141 and began working on the installation of the solar heating system in September, assigning all the work under both subcontracts, including the work in dis- pute, to its employees represented by the Pipefitters. The initial work on the solar system consisted primar- ily of installation of the interior piping and of the framework upon which the solar collector panels are placed. There is no dispute as to either of these phases of the solar system installation. The work in dispute herein involves certain aspects of the installation of the solar panels on the roof framework which is performed by crews consisting of four employees each. The panels are unloaded from the truck, which delivers them to the jobsite, and hoisted directly to the roof, and then immediately dis- tributed to designated places on the roof. Each panel has four piping connections, which are inspected and prepared when the panel is located in the appropriate place on the framework. While one panel in a row is being installed, other crewmembers prepare the next panel for installation, and once it is in place it is con- nected to the first panel with a length of pipe, the panels are bolted to the framework, and the piping connections are soldered together. A meeting between the Pipefitters and the Sheet Metal Workers representatives was held in the fall of 19783 at the construction site. At that meeting, the Sheet Metal Workers representatives argued that a June 23, 1976, interim agreement4 required that com- posite crews of members of Sheet Metal Workers and Pipefitters should perform the work here in dispute.5 However, the United Association representative re- fused to acquiesce in the Sheet Metal Workers Inter- national's position, and the dispute over the assign- ment of the solar panel work remained unresolved.6 The first load of solar panels arrived by truck at the jobsite during the early morning of March 21, 1979. Carl Reidel, a job superintendent of DeBra at the Montgomery Ward project, testified that at 7:30 a.m. DeBra employees represented by the Pipefitters be- gan unloading the panels and, at 9:30 a.m., two mem- bers of the Sheet Metal Workers employed by Glen- 3 The exact date of this meeting does not appear in the record. but the Sheet Metal Workers, in its brief, states that it occurred on October 12 4 This document was signed by the respective jurisdictional officers of the Sheet Metal Workers International Association (herein Sheet Metal Workers International) and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada. AFL-CIO (herein United Association). I The pertinent section of the agreement provides: "1. Solar Collectors or panels having tubing and/or piping. for liquid flow as well as all supports for same, and any ngging in connection therewith shall be handled and erected by a composite crew equal in number of members of the respective Unions" sOn April 25, 1979. Mack Roberts, director of trade jurisdiction for the United Association. wrote to James Crump, chief International representa- tive of the Sheet Metal Workers International. "requesting that the Interim Understanding [the June 23, 1976. agreement) on solar collectors and sup- ports be abrogated." way came over to the truck, slammed its door shut, and discussed the dispute with the workers on the truck. According to Reidel. a Glenway foreman caused the sheet metal workers to stop interfering with the unloading work, and the solar panels were unloaded, hoisted to the root: and distributed to ap- propriate places on the roof' by DeBra employees rep- resented by the Pipefitters. On March 22 the Sheet Metal Workers established a picket line at the job- site.7 and picketing continued until April 4. 1979. The picket signs bore the legend; "We protest UA Refusal to Abide By Jurisdictional Agreement. Sheet Metal Workers Local 141." Throughout the duration of the picketing no employees of Glenway worked on the Montgomery Ward project. On April 3, 1979, Glenway submitted the dispute to the Impartial Jurisdictional Dispute Board, herein- after referred to as IJDB. On April 18, 1979, the IJDB refused to hear the dispute on grounds that Glenway was not the contractor for the work and therefore the dispute was not properly before the IJDB. On March 27, 1979, DeBra filed the instant charge. alleging that the Sheet Metal Workers had violated Section 8(b)(4)(D) of the Act by the aforementioned picketing in order to force DeBra to assign the work in dispute to employees represented by the Sheet Metal Workers. B. Contentions of the Parties The Sheet Metal Workers contends that the charge should be dismissed and the notice of hearing quashed because no reasonable cause exists to show that Section 8(b)(4)(D) of the Act has been violated. In support of this contention the Sheet Metal Work- ers asserts that its picket line was for informational purposes only and was directed at the Pipefitters and not at any employers, and that it was therefore not proscribed by Section 8(b)(4)(D). Alternatively. the Sheet Metal Workers contends that there exists an agreed-upon method for the voluntary adjustme.it of the dispute. As to the merits of the dispute, the Sheet Metal Workers does not claim jurisdiction over work which it concedes is uniquely pipefitters' work, such as the opening or swedging of the panel pipe connections. the connection of pipe between panels, or the solder- ing of pipe connections. However, the Sheet Metal Workers contends that, by virtue of the 1976 interim agreement described above, and on the basis of the industrial practice to abide by this agreement. the un- loading, distribution, and bolting of the panels to 7 Roessler. business manager of the Sheet Metal Workers. testihed hat he was informed on March 21. 1979. of the aIrrlsal of the panel, that das and directed that a picket line be estabhlished he nest day 31 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD frames should be performed by composite crews of employees represented by Sheet Metal Workers and those represented by Pipefitters. The Employer contends that there is reasonable cause to believe that the Sheet Metal Workers vio- lated Section 8(b)(4)(D) of the Act by seeking to com- pel, through picketing, the assignment of the disputed work to employees represented by it. The Employer further contends that there is no agreed-upon method for the voluntary resolution of this dispute which is binding upon all parties to this proceeding. On the merits, the Employer contends that the disputed work should be awarded to employees represented by the Pipefitters on the basis of (I) the Employer's orginal assignment and preference; (2) economy and effi- ciency of the Employer's operation and because the solar collector panel system involved here is a piping system with no sheet metal or duct work connected to it, and thus the work at issue is traditional pipefitter work; (3) area practice; (4) the Employer's collective- bargaining agreement with the Pipefitters; and (5) the relative skills possessed by the two groups of employ- ees. The Pipefitters takes essentially the same position as the Employer. C. Applicability of the Statute Before the Board may proceed to the determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon methods for the voluntary adjustment of the dispute. As to (1), above, it was stipulated on the record that "on March 22, 1979, Sheet Metal Workers Local 141 caused a picket line to be placed at the Mont- gomery Ward job site and that the pickets stayed on the job site until April 4, 1979, to picket." As a result of the picketing Glenway employees did not perform services for their employer at the site. Additionally, John MacDonald, the president of Glenway, testified without contradiction that during the course of a meeting held March 21, 1979, Sheet Metal Workers Business Agent Richard Scott told him that "if they didn't get half labor on the panels, they [Sheet Metal Workers] were putting a picket up in the morning." MacDonald also testified, again without contradic- tion, that on another occasion, after the picket line had been established, Sheet Metal Workers Business Manager Paul Roessler admitted to him that he knew the picketing was illegal, but that "it was the only thing they could do to bring the thing to the head." Although Roessler testified that the purpose of the picket was "strictly in protest of the United Associ- ation to refuse to abide by the jurisdictional agree- ments," he did not deny making the statement attrib- uted to him by MacDonald. In these circumstances, we find that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. As to (2), above, as noted supra, Sheet Metal Work- ers contends that all parties to the instant proceeding are required to submit their jurisdictional disputes to the Impartial Jurisdictional Dispute Board (IJDB) for determination and that, therefore, the instant dispute is not properly before the Board. However, although it appears from the record that both the Sheet Metal Workers and the Pipefitters are bound to abide by the IJDB's rules and procedures for the settlement of ju- risdictional disputes, it is clear from the record that DeBra is not. Thus, the record establishes that DeBra is not individually signatory to the IJDB, and the Me- chanical Contractors Association of Cincinnati, of which DeBra is a member and which negotiates on behalf of DeBra and other contractors with the Pipe- fitters, has specifically declined to bind itself and its members to the IJDB. Furthermore, although the Mechanical Contractors Association of Cincinnati is affiliated with the Mechanical Contractors Associ- ation of America, which is party to the agreement establishing the IJDB, the Mechanical Contractors Association of America has not stipulated that either it or its members or affiliates would be bound by the IJDB. Therefore, as DeBra is not bound either in- dividually or as a member in an employer associ- ation8 to the IJDB's procedures, not all parties to the dispute are bound and the IJDB does not constitute an agreed-upon method for resolving the dispute. The Sheet metal Workers further contends that an interim national agreement executed by the Sheet Metal Workers International and the United Associ- ation in 1956 settled jurisdictional issues on certain designated work. The Sheet Metal Workers further contends that the two International Unions also agreed upon a procedure for resolving disputes in- volving work not specifically covered in the agree- ment as follows: The first attempt to be made by the Local Union representatives in the area, and upon failure to resolve the disputed work in question the matter will then be referred to an International Repre- sentative of each organization; and upon failure of their settling the work in question the entire matter will be referred to the General Counsel Officers signatory to the Interim National Agree- ment. i We find United Association of Journeymen and Apprentices of the Plumb- ing and Pipe Ftting Industry of the United States and Canada, Local Union No. 447, AFL-CIO (Capitol Air Conditioning, Inc.). 224 NLRB 985 (1976), cited by the Sheet Metal Workers, inapposite here, inasmuch as in that case there was a specific provision in the employer association's constitution and bylaws binding its members to the IJDB. 312 SHEET METAL WORKERS LOC. UNION NO. 141 The Sheet Metal Workers further contends that the Employer is bound to this 1956 agreement by the ju- risdictional provision in its collective-bargaining agreement with the Pipefitters. However, article IV. section 2, merely provides that the Pipefittersjurisdic- tion covers: All work performed in connection with pipefit- ting systems, industrial process piping systems. sewage disposal plants, which is properly under the jurisdiction of Local 392, in accordance with the rulings and precedents of the United Associ- ation and component parts thereof shall be per- formed by employees covered by the terms of this agreement. [Emphasis supplied.] Contrary to the contentions of the Sheet Metal Workers, we find that this language does not bind DeBra to agreements between the United Association and other labor organizations. The Sheet Metal Workers cites Plumbers Local Union No. 447 (Capitol Air Conditioning, Inc.), supra, for the proposition that DeBra is bound to observe the 1956 interim national agreement. In Capitol, however, unlike the instant case, the employer's collective-bargaining agreement with one of the unions claiming the work in dispute specifically provided that the employer would respect and apply all national agreements between the Sheet Metal Workers International and other unions gov- erning jurisdictional disputes. As there is no similar requirement in the collective-bargaining agreement between the Employer and the Pipefitters, we find that DeBra is not bound by agreements executed by the Pipefitters and other labor organizations to which DeBra is not a party. Therefore we find that there is no indication on the record that an agreed-upon method exists for the vol- untary adjustment of this dispute which is binding upon all of the parties. Accordingly, we find that the dispute is properly before the Board for determina- tion under 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 disputed work after giving due consideration to various factors.9 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors in- volved in a particular case.' 0 N.L .R.I. v. Radio Television Broadcast Engineers Union, Local 1212. International Brotherhood of Electrical Workers, A FL CIO [Columbia Broad- casting System], 364 U.S. 573 (1961). 10 InternationalAssociation o Machinists, Lodge No 1743. 4 Fl CIO (J. A Jones Constuction Company, 135 NLRB 1402 (1962). The following factors are relevant in making the determination of the dispute before us: I. Certification and collective-hargaining agreements The record does not indicate that the Pipefitters has ever been certified as the representative of an) of the Employer's employees. As noted above, on March 15. 1979, the Sheet Metal Workers was certified as the collective-bargaining representative of all of DeBra's sheet metal workers, hut none of these emplo\ees works at the Montgomery Ward site, and there is no contention that the certification covers the work in dispute at the Montgomery Ward job. Accordingkl. we find that the certification of the Sheet Metal Workers is not a significant factor for purposes of determining this dispute. DeBra did not at the time of the hearing herein or at any other material time have a collective-bargailn- ing agreement with the Sheet Metal Workers. How- ever, at all material times DeBra has been part., to a collective-bargaining agreement with the Pipefitters. The Pipefitters contract with the Employer, in article IV, section 2, provides in pertinent part: All work performed in connection with pipefit- ting systems, including fabrication, assembly, erection, installation, dismantling, repairing, re- conditioning, adjusting, altering, servicing and handling, unloading, distributing and reloading. of all piping, air conditioning and refrigeration materials, appurtenances and equipment. hang- ers and supports of every description ... shall be performed by employees covered by the terms of this agreement. Furthermore, article IV, section 3, provides: Related Jurisdiction. The handling of all materi- als on the job site, the laying out and cutting of all holes, chases and channels, the setting and erection of bolts and inserts, stands, brackets supports, sleeves, thimbles, hangers. conduits and boxes used shall be done only by Employees. as defined herein. The solar collector panel system involved here has only piping running through it and piping connec- tions attached to it; there is no sheet metal or duct work connected to the system. Thus, the work in dis- pute is specifically covered by the jurisdictional lan- guage in the collective-bargaining agreement between the Employer and the Pipefitters. Accordingly, we find that the Employer's collec- tive-bargaining agreement wth the Pipefitters favors award of the disputed work to employees represented by that labor organization. 313 I[ECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The 1976 agreement between the United Association and the Sheet Metal Workers International As discussed above, in 1976 representatives of the respective jurisdictional departments of the United Association and of the Sheet Metal Workers Interna- tional executed an "Interim Understanding" which provided, in pertinent part, that: Solar Collectors or panels having tubing and/or piping, for liquid flow as well as all supports for same, and any rigging in connection therewith shall be handled and erected by a composite crew equal in number of members of the respec- tive Unions. Although this language favors award of the work in dispute to employees represented by the Sheet Metal Workers, we note that the two Unions involved in this proceeding have not agreed to abide by the in- terim understanding and that the United Association has abrogated the agreement. In these circumstances we accord no weight to the interim understanding." 3. Employer and area practice Solar heating systems represent a relatively new technology. However, DeBra has installed solar heat- ing systems, similar to that at the Montgomery Ward project, in several other construction projects. DeBra has invariably assigned all of the work involved in the handling and installation of the solar collector panels to employees represented by the Pipefitters, and the Sheet Metal Workers concedes that, within its territo- rial boundaries, members of Pipefitters have devel- oped a practice of doing all the work involved in in- stalling solar systems. In these circumstances, we find that employer and area practice favor an award of the work in dispute to employees represented by the Pipefitters. 4. Industry practice The Sheet Metal Workers adduced evidence that at various construction jobs around the United States and pursuant to the 1976 agreement between the United Association and the Sheet Metal Workers In- ternational work such as that in dispute here has been performed by composite crews comprised of both em- ployees represented by local unions of the United As- sociation and employees represented by local unions of the Sheet Metal Workers International. We find | Operative Plasterer' and Cement Masons' International Association, lo- cal No. 394, AFL CIO Warner Masonry, Inc.), 220 NLRB 1074 (1975). that this factor, while not determinative, tends to fa- vor award of the disputed work to such composite crews. 5. Skills involved The skills involved in handling and installing the solar collector panels include the preparation of pipe connections, the fitting of piping to the connection. and the welding of these connections. These are skills indisputedly possessed by and normally associated with employees represented by the Pipefitters. The Sheet Metal Workers concedes that employees repre- sented by that Union have the requisite skills for only a portion of the installation work and does not claim any work that is uniquely pipefitters, but instead claims, without contradiction, that its members pos- sess the skills necessary to unload, hoist, and distrib- ute the panels, and that therefore the installation work should be performed by composite crews. How- ever, the employer's project manager, Daniel Tar- kington, testified without contradiction that a part of the unloading and handling operation involves the in- spection of the fittings on the panels before they are distributed and that the specific training of the em- ployees represented by the Pipefitters renders them more useful for the inspection process at the truck than the employees represented by the Sheet Metal Workers. Fred DeBra, president of the Employer, tes- tified without contradiction that it was important at all stages of the installation process that the installers be able to inspect the joints for any defects and that only employees who are represented by the Pipefitters would be so qualified. Therefore, it appears that the employees represented by the Pipefitters are more skilled to perform the disputed work. We therefore find that this factor favors an award of the work in dispute to employees represented by the Pipefitters. 6. Efficiency and economy The Employer contends that a composite crew would not be either efficient or economical. In this regard Tarkington testified without contradiction that the work in dispute consists of a series of interrelated tasks. The only part of this work (aside from the ini- tial unloading of the panels) which members of the Sheet Metal Workers are qualified to perform is the lifting of the solar panel on the frame and the bolting of the panel to the frame. However, inasmuch as effi- cient performance of the installation of the panels re- quires that each panel be completely installed before the one next to it is laid in the framework, perform- ance of the installation by composite crews would re- quire that employees represented by the Sheet Metal Workers stand idle while crew members represented 314 SHEET METAL WORKERS LOC. UNION NO. 141 by the Pipefitters do work involving pipe connections. However, if all the work in dispute is performed by employees represented by the Pipefitters, all members of the crew will work continuously. Accordingly, we conclude that the record establishes that the factors of efficiency and economy favor awarding the work to employees represented by the Pipefitters. 7. Employer preference For the reasons stated above, the Employer finds it preferable to assign the work in dispute to employees represented by the Pipefitters, and the record estab- lishes that the Employer is satisfied with the results of that assignment. Accordingly, we find that this factor, while not determinative, favors awarding the work to employees represented by that labor organization. Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that employees who are represented by the Pipefitters are entitled to perform the work in dispute. We reach this conclusion relying on the skills possessed by these employees, greater efficiency and economy of opera- tion, the collective-bargaining agreement between the Pipefitters and the Employer, area practice, and em- ployer practice and preference. In making this deter- mination, we are awarding the work in question to employees who are represented by the Pipefitters, but not to that Union or its members. The present deter- mination 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 pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Fred B. DeBra Company. Inc.. who are represented by Pipefitters Union Local 392, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the U.S. and Canada, AFL-CIO, are entitled to perform the work of handling and installing fluid type solar collec- tor panels at the Montgomery Ward project in Shar- onville. Ohio. 2. Sheet Metal Workers International Association, Local Union No. 141, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Fred B. DeBra Company, Inc., to assign the disputed work to employees represented by that labor organization. 3. Within 10 days of the date of this Decision and Determination of Dispute, Sheet Metal Workers In- ternational Association, Local Union No. 141. AFL CIO, shall notify the Regional Director for Region 9. 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 deter- mination. 315