Sheet Metal Wkrs.. Loc. 9, AFL-CIO

SHEET METAL WKRS.. LOC. 9, AFL-CIO International Association of Sheet Metal Workers, Local No. 9, AFL-CIO and John E. Davis, d/b/a D & S Home Improvement Co. Case 27-CD-100 June 16, 1970 DECISION AND ORDER QUASHING NOTICE OF HEARING BY MEMBERS FANNING, BROWN, AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing charges filed on April 4, 1969, by John E. Davis, d/b/a D & S Home Improvement Co., herein called the Employer, alleging that the International Association of Sheet Metal Workers, Local No. 9, AFL-CIO, herein called the Respondent, violated Section 8(b)(4)(D) of the Act by engaging in cer- tain proscribed activity with an object of forcing or requiring the Employer to assign the work in dispute to employees represented by the Respon- dent rather than to the employees of the Employer. Pursuant to notice a hearing was held before Albert A. Metz. Hearing Officer, on May-9, 1969.' The parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses , and to adduce evidence bearing upon the issues. The Respondent filed a brief with the Board. 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 powers in connection with this case to a three- member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board' makes the following findings: 1. THE BUSINESS OP THE COMPANY The record shows that the Employer is engaged in the business of general construction including roofing and siding. On or about February 1, the Employer, formerly a partnership, was reorganized and at all times material herein has been doing business as a sole proprietorship owned and operated by John E. Davis. For the Board to assert jurisdiction herein it is necessary to project the Em- ployer's purchase of materials from local concerns which, in turn, received the products directly from sources located outside the State of Colorado. In All dates refer to 1969 unless otherwise noted. 183 NLRB No. 56 443 this regard, lumber and aluminum siding and roof- ing constitute the major out-of-state materials purchased by the Employer. Davis testified and the record shows that the Employer purchased lumber valued at $8,000 as of the date of the hearing. Also, the Employer testified and the record shows that it purchased, or was under contract to purchase, alu- minum products valued at $17,900 for jobs per- formed or to be performed before August. Project- ing these actual figures we find that the Employer would receive aluminum products and lumber on a yearly indirect inflow basis valued at $50,000 or more for the year ending February 1, 1970. Ac- cordingly, we find that the Employer meets our ju- risdictional standards, is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated and the record shows that the Respondent is a labor organization within the meaning of the National Labor Relations Act, as amended. III. THE DISPUTE Shortly before it was reorganized in February, the Employer, through John E. Davis, bid on a roofing project calling for the installation of 12,500 square feet of aluminum-base shingles on a lounge adjoining the Statler-Hilton Inn in Denver. At the time, the Employer was aware that the work was to be performed by union labor and that none of its three full-time employees belonged to a labor or- ganization . However, confident that the Roofers Union, Local 41 claimed jurisdiction, the Employer contacted that union to determine whether it would represent the Employer's three roofers. The Em- ployer was informed by a secretary at the Roofers hall that the work came within that union's jurisdic- tion and further that it would extend membership to the three employees in question. Sometime later, the Employer telephoned Archie Topping, the busi- ness representative for the Roofers Union, to inquire whether it would have to pay any initiation fees. Topping testified that he told Davis that there was no need to do so if the Employer was bonded. Topping also recalled that Davis mentioned his in- terest in joining the Union because "he had new material," but, according to Topping, Davis never mentioned that the new material was aluminum, tin, or any other metal-base shingle. On the basis of three telephone conversations the Employer sub- ' Member Brown concurs in the result 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mitted its bid on the Statler-Hilton Inn lounge pro- ject and was awarded the work. The contract between the Employer and the prime contractor stated in pertinent part that the work was to be per- formed by "union labor with the union having ju- risdiction. "3 In early April, shortly before work on the lounge roof commenced, Davis received a phone call from Oliver Nelson, the Respondent's business agent. Nelson informed him that the Respondent claimed the work of installing aluminum as well as all other metal-base shingles. Davis testified that he replied to Nelson's contention by stating that he thought the work belonged to the Roofers Union, but that as far as he was concerned it made no difference to him which union represented his employees as long as they were given the work. The conversation con- tinued on this latter subject and when Davis emphasized his intention to use his own men, Nel- son, in the words of Davis, threatened to "picket" or "shut the job down." Nelson, in his testimony, stated that he merely made it known to the Em- ployer that the work belonged to the Respondent and that in no way did he threaten to picket or to precipitate any work stoppage at the Statler-Hilton lounge. Rather, Nelson testified that when Davis communicated his intention to employ his own men, he, Nelson, offered to meet with the Em- ployer and discuss their differences.' Shortly after the discussion with Nelson, Davis met with Curtis Guidry, Respondent's business manager, at the union hall. Guidry testified that he and Davis talked about the possibility of the Em- ployer becoming a union shop, but when Davis de- cided that he could not meet certain union require- ments the discussion turned to other alternatives, including subcontracting the work in dispute to a shop represented by the Respondent. According to Guidry's testimony, he maintained at all times that the work belonged to the Respondent. During the same conversation. Davis asked Guidry what would the Respondent do if the Employer were to use its s This agreement was not produced at the hearing and, as the prime con- tractor did not appear, the above quotation is solely Davis' best recollec- tion of what the prehire contract stipulated Nelson's own summation of what was said is as follows Well, first I asked John Davis who he represented He told me he was the owner of D & S Home Improvement Company, and I understood that he did have the contract under Al Cohen to put the aluminum shingles on the lounge out there r * * w I asked him who he was going to get to do this, and he told me he figured on using own roofers I asked him if he knew whose jurisdiction this come under, and he said it come under Roofers I told him we al- ways had been doing this [work] around Denver and around the State of Colorado, and that if there was a chance to see him down at the of- fice, we would like to talk to him. I think that is about it He said he would see if he couldn 't come down Neither the agents of the Respondent nor Topping , as representative of own employees instead of subcontracting the work to a shop whose employees were represented by the Respondent. Guidry testified that he said nothing. Moreover, Davis did not testify that Guidry threatened to picket or shut down the job. The Employer then contacted Topping who, now apprised of the nature of the material Davis in- tended to use, asserted that the Roofers Union did not claim jurisdiction over the installation of alu- minum shingles because, according to a decision of the National Joint Board rendered years before in another case in the area, the Respondent had made proper claim to the laying of metal shingles.' Topping testified that this was the first time that Davis informed him what constituted the "new material" the Employer referred to in their earlier conversation .6 There were later conversations between Topping and Davis, but Topping remained adamant in refusing to claim the work in dispute. At this point, the Employer met with a represen- tative of the Al Cohen Construction Company, the prime contractor, who suggested that the Employer subcontract the work to a shop represented by the Respondent. At the prime contractor's suggestion, the Employer contracted the Van Genderen Sheet Metal Company which, in an informal agreement with the Employer and Cohen Construction, agreed to supply two of its employees to do the work of in- stalling the aluminum shingles.' The Employer then filed its charges. Finally, with regard to the Employer's own em- ployees, Davis testified that they claimed the work in dispute. However, none of the employees so testified or were even present at the hearing. Entirely apart from the merits of the alleged con- flicting claims between the Respondent and the Employer's employees for the work herein in- volved, the Respondent argues that there is insuffi- cient evidence to show that it or any of its agents engaged in conduct violative of Section 8(b)(4)(D) of the Act. In brief, Section 10(k) of the Act em- powers and directs the Board to hear and deter- the Roofers Union, could recall the name of the case or the date when it is- sued , but both agreed that, as far as they were concerned , it was binding Topping maintained that his office secretary's statements would in no way bind the principal , Roofers Union , even if she was fully aware of the facts, and that the Employer had no right to rely upon her statement In view of onr disposition of this case we need not decide this issue ] At the outset, the employees provided by the Van Geaderen Sheet Metal Company were laying the felt as well as installing shingles A building inspector for the city and county of Denver advised the Em- ployer that Van Genderen's employees, represented by the Respondent, were not licensed to lay felt, but could only install the metal shingles Whereupon, the Employer was required to further subcontract the laying of the asphalt paper to a company whose employees were represented by the Roofers' Union Davis states he would have used his own licensed roofers to install the asphalt paper but for the fact that they had already been assigned anotherjob SHEET METAL WKRS., LOC 9, AFL-CIO 445 mine disputes out of which Section 8(b)(4)(D) charges have arisen. Before making a determination of the dispute in Section 10(k) proceedings, the Board is required to find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. Therefore, the Respondent contends that the Board, on the facts of this case, could not so find, that the charge filed is without merit, and that, in consequence, the notice of hearing must be quashed. In the alternative, the Respondent argues that even if the Board finds probable cause that the Respondent engaged in prohibited methods in order to force a work assignment to its members, nevertheless, the charge is not one of which the Board may take cognizance. We shall now consider this latter contention. In substance, the Respondent argues that Section 8(b)(4)(D) envisions a polarity of rival union in- terests competing for an assignment of work from an employer who is neutral to the dispute. In this regard, the Respondent contends that polarity is ab- sent from this case. Thus, the Respondent argues, inter alia, that there appears to have been no conflicting demands made upon the Employer for the work. We find merit in this argument as Davis testified that his men wanted the work, but did not demand it: Q. Have your employees made any demands on you as to doing this type of work or doing this work on this project? A. No demands on it. But, of course, they would have liked to have done it. They like those shingles to lay. There have been no de- mands. They work for me, I don't work for them. Therefore, the Employer's three employees who, on their own, could have voiced opposition to the assignment of work to the Respondent, admittedly never demanded the work in question. In fact, although they received notice of the hearing in this case the Employer's employees did not appear at the hearing to corroborate Davis' allegation that they claimed the work. Thus, other than the Em- ployer's statement that its employees "would have liked to have done" the work, we do not find in this case-especially in view of the Employer's state- ment that no demand was made-any evidence that this group of employees staked a competing claim to the work.8 In view of the above, we find no reasonable cause to believe that a jurisdictional dispute cognizable under Section 10(k) of the Act exists. Moreover, even if we had reasonable cause to be- lieve such a dispute did exist, we would, neverthe- less, be unable to find reasonable cause to believe that the Respondent or any of its agents engaged in conduct violative of Section 8(b)(4)(D) of the Act. As a sum total of the facts offered as proof of il- legal threat, coercion, or restraint, it appears that in a phone conversation Nelson said to Davis, in the latter's words: "And he, in effect, told me if I put my roofers on there, there will be a picket and [it will] shut the job down." In addition, on cross-ex- amination , Davis testified that the same remark was delivered to the prime contractor's superintendent. It should be noted however that the prime contrac- tor's superintendent was not called to corroborate Davis' version. On the other hand, Nelson testified that he in- formed Davis that the Respondent merely claimed the work in question and offered to meet with the Employer to discuss their differences. On direct ex- amination , Nelson specifically denied making any reference whatsoever with regard to picketing or causing a work stoppage or slowdown. Nelson was not cross-examined on this point. Taking Davis' testimony as a whole, it appears that he honestly, but mistakenly, interpreted Nel- son's statement concerning the Respondent's ju- risdiction and claim over the work to constitute a threat of picketing or shutdown. Thus, when first testifying to the matters discussed in his conversa- tion with Nelson, Davis failed to mention any re- marks more coercive than Nelson's statement that the Employer "couldn't put union roofers on that job because the jurisdiction belongs to the Sheet Metal Workers [the Respondent]." It was only later that Davis added, almost parenthetically: One other thing: I don't recall if this was Mr. Guidry, whether it was him that made the statement or Mr. Nelson-that if I did put my men on there, they would picket the job. This was Mr. Nelson, the first conversation. But still later, when he was confronted with his two statements above and asked to restate again his conversation with Nelson, Davis replied: A. ... He said I would have to use Sheet Metal men, and he said I would have to use Roofers. Q. I want to be perfectly sure because you keep qualifying it. Are you saying Nelson told you in so many words, "We will picket you? A. Yes, sir. Although Davis appears to indicate that the words 8 Cf Pipeliners Local 798 , United Association of Journeyman and Ap- prentices of the Plumbing and Pipefttting Industry of the United States and Canada, AFL-CIO ( Moon Pipeline Contractors , Inc ), 177 NLRB 872, where the employees did stake such a competing claim to the work in dispute 446 DECISIONS OF NATIONAL "picket" and "shut down " were used , on balance, the record leaves us in considerable doubt as to whether these words were actually uttered or whether this was merely the witness ' conceptualiza- tion of what Nelson meant when he said the Em- ployer would have to use its union members. In our opinion , this latter interpretation of Davis' testimony is more reasonable , particularly in the light of the other record evidence in this case as set forth elsewhere herein . Accordingly, we are unable to find , based only on Davis somewhat confused and inconsistent testimony , that the Respondent threatened to initiate a work stoppage if the Em- ployer persisted in using its own employees. There is no other such evidence presented herein. LABOR RELATIONS BOARD Upon the basis of the foregoing, we conclude that there is insufficient evidence in the record to give reasonable cause to believe that the Respon- dent violated Section 8(b)(4)(D) of the Act. Further , as noted elsewhere herein, we conclude that the dispute herein is not a dispute within the meaning of Section 10 ( k). Accordingly, we shall quash the notice of hearing. ORDER It is hereby ordered that the notice of hearing is- sued in this case be , and it hereby is, quashed.