Steel Metal Workers, Local 541

1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers' International Association (AFL-CIO), Local No. 541 and Kingery Con- struction Company and Pinkston-Hollar Con- struction Services of Omaha , Inc. and United Brotherhood of Carpenters and Joiners of Amer- ica, Local Union No. 1055, AFL-CIO. Case 17-CD-97 July 8, 1968 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS BROWN , JENKINS, AND ZAGORIA This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed by Kingery Construction Company, herein called Kingery, alleging that Sheet Metal Workers' International Association (AFL-CIO), Local No. 541, herein called the Sheet Metal Workers, had violated Section 8(b)(4)(D) of the Act. The charge alleges, in substance , that the Sheet Metal Workers engaged in and induced and encouraged individuals employed by Kingery and other interstate employers to engage in a strike and work stoppage with an object of forcing and requir- ing Pinkston-Hollar Construction Services of Omaha, Inc., herein called Construction Services, to assign certain work to members of the Sheet Metal Workers rather than to its own employees who are members of the United Brotherhood of Carpenters and Joiners of America, Local Union No. 1055, AFL-CIO, herein called the Carpenters. A hearing was held on July 20 and 21, 1967,' be- fore Hearing Officer Frederick C. Herzog. All parties except the Carpenters actively participated in the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. 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. The Sheet Metal Workers, Kin- gery, and Construction Services filed briefs which have been duly considered. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYERS The parties stipulated that Kingery, a Nebraska corporation, and Construction Services, a Texas corporation, are engaged in commerce within the meaning of the Act. It was further stipulated that both corporations are engaged in the building and construction industry and that each annually purchases goods valued in excess of $50,000 from persons and/or enterprises located outside the respective States where they are either incor- porated or working. We find, accordingly, that the Employers are en- gaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. If. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Sheet Metal Workers and the Carpenters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work which gave rise to this proceeding is the handling and installation of acoustical tile ceilings covered by a metal pan at a new high school building project in Lincoln, Nebraska. The job tasks involved in this work consist of the follow- ing consecutive steps: (1) installation of heavy gauge galvanized wire hangers which attach to the roof structure of the building; (2) attachment to the hangers of inch and one-half black iron channels at 4-foot intervals; (3) attachment of snap tees to the channels by means of special hooks; (4) installation of wall molding around the perimeter; and (5) in- stallation of metal pan units, including grids and sound absorption pads. In this proceeding, Sheet Metal Workers claim only steps 3, 4, and 5, and do not dispute continued assignment of steps 1 and 2 by Construction Services to its employees. B. The Background Construction Services has a permanent special- ized crew of employees who perform all of the work involved in the installation of various types of acoustical ceilings, including the disputed metal ' All dates appearing hereinafter will be in 1967, unless otherwise in- dicated 172 NLRB No. 108 SHEET METAL WORKERS , LOCAL 541 pan type. These employees are members of Carpen- ters, but Construction Services does not recognize any labor organization as their collective-bargaining representative. In November 1966, pursuant to its subcontract with Kingery, the general contractor at the instant project, Construction Services commenced the in- stallation of acoustical ceilings with its normal com- plement of employees. In addition to 133,200 square feet of fiberglass or mineral board ceiling,2 the subcontract called for the installation of 6,800 square feet of metal pan ceiling. Although requested by Sheet Metal Workers in mid-January to assign the disputed portion of the metal pan work to its members, Construction Services began this phase of the subcontract in February, assigning all of the job tasks involved to the same employees who had been installing the fiberglass or mineral board ceiling. Sheet Metal Workers submitted the dispute to the National Joint Board for the Settle- ment of Jurisdictional Disputes which on April 7 requested information from Construction Services, and on April 12 issued an award in favor of Sheet Metal Workers. Construction Services, on the occa- sion of both the request and the award, advised the Joint Board that it had not agreed to be bound by any Joint Board award, and continued performance of the work with its own employees. On May 22, Sheet Metal Workers advised Con- struction Services that if the latter continued to as- sign the disputed work to carpenters, it "had only one other course of action to take," and picketed the project on May 24, 25, and 26 with a placard reading: Information picket, Construction Services Company refuses to comply with National Joint Board's decision concerning the job. Sheet Metal Local 541. This dispute with above contractor only. After the picketing began, Construction Services worked outside the project's normal working hours, but picketing continued during those hours , causing a work stoppage by all other crafts. Picketing ceased on May 26, and Construction Services completed its subcontract. C. Contentions of the Parties The Sheet Metal Workers admits seeking and de- manding the work in dispute, but contends it did 1 This type of ceiling entails the same work as set forth above except that the final step is a fiberglass or mineral board insert, rather than a metal pan, 1047 not violate Section 8(b)(4)(D) as the picket line was solely for informational purposes. It further contends that any dispute that previously had ex- isted was settled by virtue of the submission of the matter to the National Joint Board and its sub- sequent award. In this latter connection, the Sheet Metal Workers takes the position that Construction Services is bound by the award on the basis of a "Participation Agreement" signed on its behalf by an alleged supervisory employee. Lastly, it argues that, in any event, based upon area practice and skills, its members are entitled to the work, and that no dispute currently exists since the work has been completed. Construction Services and Kingery take the posi- tion that based upon skills, relative efficiency, economy, and area practice the Carpenters are en- titled to the work in dispute. They further argue that they are entitled to a determination of the dispute, despite the fact that the precise work in dispute has been completed, since similar disputes are sure to arise in the future. Lastly, they take the position that Construction Services is not bound by the award. In this latter connection, they claim that the "Participation Agreement" was in any event merely an agreement to pay certain moneys into the Carpenters Health and Welfare fund for each Carpenter member on its payroll. D. Applicability of the Statute Before the Board may proceed to a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is a reasonable cause to believe that Section 8(b)(4)(D) has been violated. As indicated above, the record contains ample and uncontradicted evidence that in January 1967 and thereafter on May 22, 1967, the Sheet Metal Workers sought and requested Construction Ser- vices to assign the disputed work to the Sheet Metal Workers rather than the Carpenters, and on May 24, 25, and 26, 1967, a picket line was established at the jobsite which caused a work stoppage by all crafts. We find there is reasonable cause to believe that violations of Section 8(b)(4)(D) have occurred, and its assignment to tot0 by Construction Services to the latter's em- ployees is not disputed by Sheet Metal Workers 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that the dispute is properly before the Board for determination under Section 10(k) of the Act.3 E. The Merits of the Dispute As stated in the J. A. Jones case4 we shall, pur- suant to the Supreme Court's C.B.S. decision,' determine in each case presented for resolution under Section 10(k) of the Act the appropriate as- signment of the disputed work only after taking into account the evidence supporting the claims of the parties and balancing all relevant factors. 1. Certification and bargaining agreements There is no certification or collective-bargaining agreement covering the disputed work, so neither the Sheet Metal Workers nor the Carpenters is favored by these factors. 2. Employer and area practice Construction Services has a crew of carpenters who spend 8 hours a day, 50 weeks a year, in- stalling acoustical ceilings, including the metal pan variety which is the subject of the instant dispute. Construction Services has used carpenters for the installation of metal pan ceilings on other projects in the Lincoln, Nebraska, area, and its practice is to use carpenters for this type of work in other areas of the country More specifically, Construction Ser- vices installed a metal pan ceiling with individuals who were members of the Carpenters at the Tecumseh Power Plant, approximately 35 miles from Lincoln, Nebraska, and of eight projects in the area of Omaha, five metal pan ceilings were in- stalled by carpenters, one was installed by sheet- metal workers, and two were installed by in- dividuals who were members of both crafts. Representatives of two large acoustical ceiling con- tractors testified that since 1957 they had installed 13 ceilings of the metal pan variety in various proj- ects in the Lincoln area. With the exception of one job whereon one sheetmetal worker was employed, all work was performed by individuals who were carpenters. On the other hand, another acoustical .ceiling contractor and the business agent for the i The Sheet Metal Workers , relying upon the "Participation Agree- ment," contend that as all the parties had agreed upon a voluntary method of adjustment of the dispute , the notice of hearing should be quashed In- asmuch as the "Participation Agreement ," by its own terms , is limited to the Carpenters Health and Welfare Program and makes no mention what- soever of terms or conditions of employment, nor incorporates by reference or otherwise the Carpenters areawide agreement calling for the submission of jurisdictional disputes to the National Joint Board, we find Sheet Metal Workers testified that metal pan ceil- ings were installed in six projects in the Lincoln area by sheetmetal workers. They further testified to the installation of a metal pan ceiling in a seventh project which was installed by both carpenters and sheetmetal workers. The fact that , so far as the record shows, a majority of the metal pan ceilings in the area were installed by members of the Carpenters, and that Construction Services generally utilizes carpenters for this type of work are factors favoring the assign- ment of the disputed work to employees represented by the Carpenters. 3. Relative skills and efficiency of operation Construction Services contends that its carpen- ters have approximately four years of experience in the work of installing metal pan ceilings and that they are qualified to do the job with a minimum of supervision. It further contends that experience has proven that it is more efficient and economical to do a complete job with these employees rather than to swith trades after the first two steps of the instal- lation have been completed. In this latter connec- tion, Construction Services points out that a car- penter can be used on other acoustical ceiling work in the project when not employed on the disputed work, while the sheetmetal workers would have to wait until more of the disputed work is reached. It also contends, and the record supports the conten- tion , that the installation of metal pan ceilings is only about 10 percent of its overall acoustical ceil- ing work, and that the Sheet Metal Workers does not have readily available at its Union hall sheet- metal workers with any extensive experience in in- stalling metal pan ceilings. The Sheet Metal Workers contends that its mem- bers alone possess the requisite skills to install the metal pan ceiling. In support of its position, the Sheet Metal Workers claims that only its members have the correct tools for the job. The Sheet Metal Workers representative admitted, however, that normally all the metal on the job comes to the job premeasured. The Board is satisfied from the entire record that while sheetmetal workers are qualified to do the in- stallation, the carpenter employees of Construction Services have more experience. It is further con- vinced that in view of the overlap involved in the various steps necessary to install a completed ceil- ing, it would be more economical and efficient to this contention without merit It is unnecessary , therefore, to resolve the status of the individual who allegedly signed this document on behalf of Construction Services ' International Association of Machinists, Lodge No 1743, AFL-CIO (J 4 Jones Construction Co ), 135 NLRB 1402 N L R B v Radio and Television Broadcast Engineers Union, Local 1212 (Columbia Broadcasting System), 364 U S 573 SHEET METAL WORKERS , LOCAL 541 use only one craft rather than fragmentize the work." 4. Action of the Joint Board The Sheet Metal Workers and the business representative of the Carpenters agree that they are bound by the Joint Board. However, inasmuch as Construction Services had not agreed to be bound by any decision of the Joint Board, the decision by that body with respect to the instant dispute is merely one of the factors which we must consider in assigning the disputed work . In view of all the circustances , including the absences of any showing in the record as to the basis for the Joint Board determination , the Board is of the opinion that the Joint Board award should not be accorded con- trolling weight.' 5. Disclaimer The Sheet Metal Workers contends that the Car- penters has disclaimed the disputed work and therefore no jurisdictional dispute exists . In support :)f its contention , the Sheet Metal Workers relies upon the fact that the Carpenters business agent agreed to the submission of the matter to the Na- tional Joint Board and testified at the hearing that the Carpenters is bound by the award. However, the president of the Carpenters local union claimed the disputed work and testified that a majority of the executive committee of the local union, sub- sequent to the National Joint Board award , decided to claim the disputed work. The record further in- dicates that subsequent to the Joint Board award the carpenters continued to perform the disputed work and completed the job. In view of the aforementioned circumstances, we cannot agree that the disclaimer is a controlling factor in the instant case." 6. The question of mootness The Board has frequently held that a jurisdic- tional dispute is not moot , despite the completion of the work involved , where there is evidence of similar disputes between the parties in the past, and nothing to indicate that such disputes will not arise in the future .9 In the instant case , Construction Ser- vices has every expectation of performing work again in the areas of geographical jurisdiction covered by the Sheet Metal Workers, and there is no evidence in the record indicating that disputes will not occur in the future . Accordingly, we find 'Local 69, United Association of Journeynien and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO ( Bellezza Compan) , Inc ), 149 NLRB 599 ' Local 964, United Brotherhood of Carpenters and Joiners of America, AFL-CIO ( Carleton Brothers Company), 141 NLRB 1138, United Brother- hood of Carpenters and Joiners of America, Local No 5/5 (J 0 Veteto & Son), 148 NLRB 351 " Cf Cement Masons ' Local Union No 524, affiliated is ith the Operative 1049 that the dispute is not moot and shall make an as- signment of the disputed work. Conclusion as to the Merits of the Dispute Having considered all pertinent factors , we con- clude that carpenters employed by Construction Services are entitled to perform the work in dispute . They are as competent and skilled in the performance of the work as members of the Sheet Metal Workers, are more experienced, and have performed it to the satisfaction of Construction Ser- vices, who desires to retain them on its operations. The present assignment of the disputed work is consistent with Construction Services' past prac- tices and with that of other employers engaged in the same operations in the area . The efficiency with which such employees may accomplish the in- tegrated task of preparing the ceilings and installing the metal pan , as contrasted with the fragmentation of the operation which would occur should mem- bers of the Sheet Metal Workers be assigned the work , demonstrates that the existing assignment by Construction Services to its carpenters should not be disturbed . We shall, accordingly , determine the existing jurisdictional dispute by assigning to car- penters employed by Construction Services, rather than to employees represented by the Sheet Metal Workers, the work in dispute. 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 proceeding, the National Labor Relations Board hereby makes the following determination of the dispute. 1. Carpenters employed by Pinkston-Hollar Con- struction Services of Omaha , Inc., are entitled to perform the disputed work of installing metal pan ceilings. 2. Sheet Metal Workers' International Associa- tion (AFL-CIO), Local No. 541, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Pinkston-Hollar Construc- tion Services of Omaha, Inc., to assign any such disputed work within the area of its geographical jurisdiction to employees represented by them rather than to carpenters employed by Pinkston- Hollar Construction Services of Omaha, Inc. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Wor- kers' International Association (AFL-CIO), Local Plasterers ' and Cement Masons' International Association of the United States and Canada, AFL-CIO (Tabasco Prestressed Concrete Compans ), 163 NLRB 609 International Union of Operating Engineers , Local 66, AFL-CIO (Frank P Badolat, & Son), 135 NLRB 1392, 1401, Local 157, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Mtdn est Homes, Inc ), 160 NLRB 261 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 541, shall notify the Regional Director for Re- work in dispute to employees represented by Sheet gion 17, in writing, whether it will or will not Metal Workers rather than carpenters employed by refrain from forcing or requiring Pinkston -Hollar Pinkston-Hollar Construction Services of Omaha, Construction Services of Omaha , Inc., by means Inc. proscribed by Section 8(b)(4)(D), to assign the