Local Union No. 48

LOCAL UNION NO. 48 157 Local Union No. 48, Sheet Metal Workers' International Associ- ation, AFL-CIO and Acousti Engineering of Alabama, Inc. T. E. Reid, Agent of Local Union No. 48, Sheet Metal Workers' International Association, AFL-CIO and Acousti Engineering of Alabama, Inc. Cases Nos. 10-CD--88 and 10-CD-89. October 28, 1957 DECISION AND DETERMINATION OF DISPUTE- STATEMENT OF THE CASE This proceeding arises under Section 10 (k) of the Act, which pro- vides that, "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph, (4) (D) of section 8 (b), the Board is empowered and directed to hear and de- termine the dispute out of which such unfair practice shall have arisen...." On July 15, 1957, Acousti Engineering of Alabama, Inc., herein called Acousti, filed with the Regional Director for the Tenth Region a charge alleging that Local Union No. 48, Sheet Metal Workers' International Association, AFL-CIO, herein called either Local 48 or Respondent, had engaged in and was engaging in certain activities proscribed by Section 8 (b) (4) (D) of the Act. It was charged in substance that Local 48 had induced and encouraged employees of various employers to engage in a strike or a concerted refusal in the course of their employment to perform any services with an object of forcing Acousti to assign particular work to members of Local 48 rather than to its own employees. On July 23, 1957, Acousti filed similar charges against T. E. Reid, agent of Local 48, sometimes called herein Respondent. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charges and provided for an appropriate hearing upon due notice to all parties. The hearing was held before Herbert Silberman, hearing officer, on August 15 and 16, 1957. Acousti, Local 48, and T. E. Reid 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. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed.' Acousti, Local 48, and T. E. Reid filed briefs with the Board. "Respondents contend that the proceeding should be dismissed because a representative of the General Counsel improperly acted as a "prosecutor" In this nonadversary proceed- ing by producing oral and documentary testimony to sustain the position of the Charging Party. The attorney for the General Counsel denied that he was appearing in the position 119 NLRB No. 29. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board 2 makes the following: FINDINGS OF FACT 1. Acousti Engineering of Alabama, Inc., is a Delaware corporation having its principal offices in Birmingham, Alabama. It is engaged in the installation of roofing materials and acoustical ceilings. During the 12 months preceding the hearing, Acousti had total revenues ex- ceeding $700,000, of which in excess of $100,000 was received for serv- ices performed for customers each of which annually ship goods or performs services outside the State of Alabama valued at more than $50,000. The parties agree, and we find, that Acousti is engaged in commerce within the meaning of the Act? 2. Local Union No. 48, Sheet Metal Workers' International Asso- ciation, AFL-CIO, is a labor organization within the meaning of the Act. 3. The dispute : Acousti has a permanent force of workmen who have received special training in the installation of acoustical ceilings. These em- ployees are members of the Brotherhood of Carpenters and have attended the apprenticeship school operated by that union in Birmingham, Alabama. Although Acousti does not recognize the Carpenters or any other union as bargaining agent of its employees, it pays them in accordance with the Carpenters' wage scale in the Birmingham area. Acousti obtained a subcontract to install metal pan acoustical ceilings in certain buildings of the Redstone Arsenal in Huntsville, Alabama. Early in June 1957, T. E. Reid, assistant business manager of the Sheet Metal Workers, held a meeting with a representative of Acousti, among others, in which he stated that the installation of metal pan acoustical ceilings was sheet metal work, that the National Joint Board for Settlement of Jurisdictional Disputes in the Building and Construction Industry, herein called the Joint Board, had awarded such work to the Sheet Metal Workers, that the Carpenters of a "prosecutor." He asserted that his interest was simply in presenting the results of the Regional Director's investigation and not in prosecuting any party . The hearing officer overruled the objection . A hearing under Section 10 (k) is nonadversary in char- acter and is conducted in the same way as a representation proceeding. Radio and Tele- vision Broadcast Engineers Union, Local 1212, 103 NLRB 1256, 1257. The Regional Director is a party to the proceeding ( Board 's Rules and Regulations , Sec. 102.8) and as a party may call, examine and cross -examine witnesses, and introduce into the record docu- mentary and other evidence . (Board's Rules and Regulations, Sec. 102 .58.) The attorney for the General Counsel appeared as a representative of the Regional Director and only in the interest of presenting a complete record in the case. Accordingly, the hearing officer's ruling permitting participation is hereby affirmed. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman Leedom and Members Bean and Jenkins]. 3 Local Union No. 48, Sheet Metal Workers' International Association, AFL-CIO (Acousti Engineering of Alabama, Inc.), 114 NLRB 1415. LOCAL UNION NO. 48 159 union was not demanding such work and that members of Local 48 should be employed for such installation work. Acousti's representa- tive stated that his company was not bound by the Joint Board's jurisdictional awards, and that it would assign its own men to do the work as it had a legal right to do. Thereafter, Acousti sent its own men from Birmingham to the Redstone Arsenal to do the ceiling installation work under its subcontract. On July 9, 1957, Reid informed Local 48's job steward on the Redstone job and another member of that organization that if a settlement could not be reached the job would be picketed the next morning, that such picketing had already been authorized by the Building Trades Council, and that stewards for other crafts working on the job were to be informed of this fact, which was done. On July 10, Local 48 placed pickets at all access roads to the arsenal with signs saying that Local 48 was picketing "Because of Acoustical Metal Ceiling Being Installed by Others Than Journeyman Sheet Metal Workers & Registered Appren- tices." The picketing continued until the forenoon of July 11. Employees of other contractors and subcontractors on the project refused to cross the picket lines. As a result practically all work ceased at the project. On July 10, 1957, a representative of the prime contractor, Blount Brothers Construction Company, informed Acousti that he had agreed to hold up Acousti's work until the Joint Board issued a determination on the dispute which had been submitted to that body. Acousti replied that it did not recognize the Joint Board and that it had a legal right, which it expected to exercise, to complete the work with its own employees. Blount Brothers submitted the dispute to the Joint Board on July 10. In response to a letter from the Joint Board, Acousti replied that it "is not bound by agreement establishing the Joint Board, has not adjusted or agreed, and does not now agree upon methods for voluntary adjustment of the dispute and therefore the Joint Board is without authority to determine this dispute. The NLRB has taken jurisdiction of this matter and we desire that it retain jurisdiction." On July 26, 1957, the Joint Board issued a decision assigning the work in dispute to Local 48. Acousti refused to accept the decision. Picketing was discontinued on July 11 and has not been resumed. The prime contractor has prevented Acousti from continuing with its subcontract. At the present time consideration is being given to a proposal for changing job specifications so as to eliminate the disputed work. Contentions of the Parties Acousti contends that by the above conduct, the Respondents violated Section 8 (b) (4) (D) of the Act. The Respondents contend 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that (1) the dispute has been settled and disposed of by the Joint Board procedure, and (2) the picketing did not violate the Act. Applicability of the Statute The charge, which was duly investigated by the Regional Director, alleges a violation of Section 8 (b) (4) (D) of the Act, and the Regional Director was satisfied, on the basis of his investigation, that a violation of the section had been committed. In a proceeding under Section 10 (k) of the Act, the Board is required to find that there is reasonable cause to believe that Section 8 (b) (4) (D) has been violated before proceeding with a determina- tion of the dispute out of which the unfair labor practice has arisen. On the basis of all the evidence, which is essentially uncontradicted, we find that there is reasonable cause to believe that the Respondents induced or encouraged employees working at the Redstone Arsenal to engage in a strike or refusal to perform any services with an object of forcing Acousti to assign the installation work on metal pan acous- tical ceilings to members of Local 48 rather than to Acousti's own employees and thereby violated Section 8 (b) (4) (D) of the Act. Respondents contend that the unfair labor practice charge should be dismissed because the dispute has been adjusted.4 The defense of adjustment rests upon the determination of the Joint Board that the work should be assigned to members of the Local 48. Acousti has never specifically agreed to be bound by any determination of the Joint Board and in fact has consistently taken the position that it is not willing to submit its dispute to, or to be bound by, any decision of that agency.' Respondents apparently argue, however, that certain clauses in the subcontract between Blount Brothers and Acousti require the latter to submit to the procedure of the Joint Board. The clauses in ques- tion provide: ARTICLE VI-(a). Sub-Contractor shall at all times supply adequate tools, appliances and equipment, a sufficient number of properly skilled workmen and a sufficient amount of materials and supplies of proper quality to efficiently and promptly prose- cute said work... . ARTICLE XI. If any question of fact shall arise under this con- tract, and there is no provision for settlement in the General Con- tract, then either party hereto may demand an arbitration by reference to a Board of Arbitration, to consist of one person 4 Section 10 (k) provides: "Upon compliance by the parties to the dispute with the deci- sion of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed." 5 Bay Counties District Council of Carpenters , etc., 115 NLRB 1757, 1766-1767. LOCAL UNION NO. 48 161 selected by Contractor, and one person selected by Sub-Contrac- tor, these two to select a third. . . . The written decision of any two of this Board shall be final and binding on both parties hereto... . It is sufficient to note that Local 48 is not a party of this sub- contract,' that neither of the contracting parties has invoked its pro- visions; that the arbitration clause provides for a procedure entirely distinct from the machinery of the Joint Board, and that it appears to be doubtful whether the present dispute would be covered by the above arbitration clause in any event. In view of the foregoing, we find that the parties have not agreed upon any method for the volun- tary adjustment of the dispute and that it is properly before the Board for determination under Section 10 (k) of the Act. Merits of the Dispute It is well established that an employer is free to make work assign- ments free of strike pressure by a labor organization "unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees per- forming such work." There is no evidence that Acousti's assignment of work was in contravention of any Board order or certificate. . Blount Brothers has prevented Acousti from continuing with its work and at the present time has submitted a proposal to the Govern- ment for a change in specifications so as to eliminate this work en- tirely. However, the dispute is not on that account moot. There is a fundamental unresolved disagreement between Acousti and the Local 48, which extends beyond the particular job involved, over who should install metal pan acoustical ceilings. The dispute was before the Board in 1955 in another case and the Board then decided that Local 48 was not entitled to require Acousti to assign such work to members of Local 48 7 At the time of the hearing, Acousti had in progress two other jobs involving installations similar to that in the instant proceeding. It also had a contract for the installation of such ceilings in another building of the Redstone Arsenal. This contract is not with Blount Brothers, but with another prime contractor. All these jobs are within the territorial jurisdiction of Local 48. There remains the distinct possibility that the dispute will be extended to these other j obs. We therefore find that Respondents were not and are not entitled by means proscribed by Section 8 (b) (4) (D) to force or require Acousti to assign the work of installing metal pan acoustical ceilings 6 Truck Drivers Local Union No. 375, 113 NLRB 452, 458. 'Local Union No. 48, Sheet Metal Workers' International Association, AFL-CIO, supra. 476321-58-vol. 119=12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to members of Local 48 rather than to employees assigned by, Acousti to perform such work." DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in the case, the Board makes the following determination of dispute pursuant to Section 10 (k) of the Act : 1. Local Union No. 48, Sheet Metal Workers' International Asso- ciation, AFL-CIO, and its agents, including T. E. Reid, are not and have not been lawfully entitled to force or require Acousti Engineer- ing of Alabama, Inc., to assign the work of installing metal pan acoustical ceilings to members of that labor organization rather than to Acousti's own employees. 2. Within ten (10) days from the date of this Decision and Deter- mination of Dispute, Local Union No. 48 and T. E. Reid shall notify the Regional Director for the Tenth Region in writing whether or not they will refrain from forcing or requiring Acousti Engineering of Alabama, Inc., by means proscribed by Section 8 (b) (4) (D) to assign the work in dispute to members of Local Union No. 48, Sheet Metal Workers' International Association, AFL-CIO, rather than to employees of Acousti. 8 United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and its Agent, Cecil Shuey ; et at., 116 NLRB 1063, 1067. Industrial Fabricating Inc.; Industrial & Foundry Sales Inc.; Eaton Metal Abrasive Co.; Unified Industries Inc.; Pressed Steel Flasks, Inc.; Plastic Tool Corporation of America; Vac- uum Electronics Inc.; Paragon Industries Inc.; Frank Mac- kniesh and International Union Local 909, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, affiliated with AFL-CIO. Case No. 7-CA-1133. October 29, 1957 DECISION AND ORDER On October 10, 1956, Trial Examiner A. Norman Somers issued his Intermediate Report in the above-entitled proceeding, finding that the first-named Respondent, Industrial, had engaged and was en- gaging in some of the unfair labor practices alleged in the complaint, within the meaning of Section 8 (a) (1), (3), and (5) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the remaining 8 Respondents had not engaged in any unfair labor practices and were not liable for the unfair labor practices engaged in by Indus- 119 NLRB No. 19.