Local Union No 80, Sheet Metal Workers'

LOCAL UNION NO 80, SHEET METAL WORKERS' Local Union No. 80 , Sheet Metal Workers' Interna- tional Association, AFL-CIO and Speaker & As- sociates, Inc. and Local 512, United Brotherhood of Carpenters and Joiners of America , AFL-CIO and Scientific Apparatus Makers Association .' Case 7- CD-224 May 28, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by Speaker & Associates, Inc., herein called Speaker or Employer, on October 17, 1969, al- leging that Local Union No. 80, Sheet Metal Workers' International Association, AFL-CIO, herein called Sheet Metal Workers or Local 80, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Em- ployer to assign certain work to employees represented by the Sheet Metal Workers, rather than to employees represented by Local 512, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, herein called Carpenters or Local 512. A hearing was held before Hearing Officer Brian S. Ahearn on December 3, 4, 5, and 18, 1969. All parties appeared at the hearing and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to adduce evi- dence bearing upon the issues. At the opening of the hearing, Respondent's counsel moved to quash the no- tice of hearing. The Hearing Officer referred the motion to the Board for a ruling based upon the record as it thereinafter developed Subsequently, on January 21, 1970, the Respondent Union filed with the Board a motion to quash and the Charging Party filed an an- swer thereto. All parties, including the Intervenor, filed briefs with the Board.' Thereafter, the National Labor Relations Board issued a notice to the parties to show cause why the record should not be reopened for re- ' The Regional Director allowed the Scientific Apparatus Makers As- sociation to intervene in this proceeding but only to the limited extent of developing the record with respect to (1) the nature of the disputed work and (2) the merits of the dispute, i e , to which group of employees should the disputed work be awarded and the reasons and evidence in support of such contention ' Attached to Respondent Union's brief were, inter aka, (1) a copy of a decision in the instant dispute by the National Joint Board for the Settle- ment of Jurisdictional Disputes, Building and Construction Industry, dated January 23, 1970, and (2) a copy of a current collective-bargaining agree- ment between the Carpenters District Council of South Central Michigan, representing Local 512, etc , and various contractor associations These attachments were inadvertently not attached to the brief and were subse- quently sent to the Board with an explanatory letter 559 ceipt of certain evidence' alleged by Respondent Union as supportive of its motion to quash. All parties filed responses thereto. 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 Board has reviewed the rulings made by the Hearing Officer at the hearing, and finds that they are free of prejudicial error. The rulings are hereby affirmed. The Board has considered the briefs of the parties and the entire record in this case,' and hereby makes the following findings: 1. All parties stipulated that Speaker & Associates, Inc., a Michigan corporation, is a specialty contractor engaged in Detroit and other locations both within and outside the State of Michigan in the installation and erection of laboratory and dormitory furniture and equipment and in allied work. The parties further stipu- lated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 2. Local 80 and Local 512 are labor organizations within the meaning of the Act. 3. The dispute a. The work in dispute; background facts The disputed work which gave rise to this proceeding concerns the unloading, moving, uncrating, raising, placing, and installing of fume exhaust hoods and fume hood superstructures, and attaching the superstruc- tures to laboratory counters and bases in the science complex at Eastern Michigan University, Ypsilanti, Michigan. The fume hood cabinet, which is attached to a base cabinet, is part of a section of laboratory furni- ture. The Employer assigned the work of installing ' Namely, a copy of the January 23, 1970, letter of the National Joint Board relative to this dispute and a copy of the agreement of Carpenters District Council of South Central Michigan, and official notice of the April 7, 1970, amended plan for settling jurisdictional disputes nationally and locally in the building and construction industry A review of the responses to the notice to show cause why the record should not be reopened shows that none of the parties question the authen- ticity of the documents sought to be placed in the record in fact, the Intervenor alleges that there is no objection to the Board's taking official notice of the April 7, 1970, amended plan for settling jurisdictional disputes However, in so stating, the Intervenor and other parties with the exception of Respondent Sheet Metal Workers indicate a desire for further hearing on the admission of the documents and/or an opportunity to submit briefs to the Board in regards thereto The requests to reopen hearing are denied as the briefs adequately set forth the position of the parties relative to these documents Wisconsin Rubber Products Co, Inc, 160 NLRB 166, 167 Accordingly, the record is reopened for the admission of these documents Moreover, official notice is taken of the April 7, 1970, amended plan for settling jurisdictional disputes nationally and locally in the building and construction industry See Building and Construction Trades Bulletin, Vol XXIII, No 4, April 1970, which reported the plan The Unions involved herein are affiliated locals of International Unions which are members of the Building and Construction Trades Department, AFL-CIO 190 NLRB No. 64 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complete room sets of laboratory furniture to em- ployees classified as carpenters, who are represented by Local 512. The Sheet Metal Workers maintain that employees classified as sheet metal workers are entitled to the work of installing the fume hoods, but they do not claim the work of installing any of the other cabi- nets, or of installing the base cabinets for the fume hoods The Employer has a contract with E. H. Sheldon and Co., pursuant to which it, on about September 22, 1969, commenced the installation of laboratory coun- ters and bases, the unloading, moving, uncrating, rais- ing, placing, and installing of fume hoods and fume hood superstructures, and attaching the superstruc- tures to the laboratory counters and bases. The disputed work generally involves handling and installation of fume exhaust hoods. Prior to this, the other base cabinets and the base under the fume hood cabinet are first installed, and the last section to be put in place is the fume hood cabinet. Following the com- pletion of this work, sheet metal workers make the necessary connections for the ventilation lines. On or about January 22, 1969, before this work had commenced, the Sheet Metal Workers sent a letter to the Employer stating that a dispute existed between Local 80 and Local 512 "regarding the handling and installation of fume exhaust hoods on the Eastern Michigan University Science Complex, Ypsilanti, Michigan." On or about September 29, 1969, as carpenters em- ployed by Speaker were unloading fume hoods on a truck, Local 80's steward approached the Employer's installation superintendent and said that the work which the carpenters were performing was not carpen- ters' work and that they should not be performing it On about October 1, 1969, Local 80's steward and business representative visited the jobsite and appar- ently informed the Employer's installation superin- tendent that they claimed the work. On or about October 8, 1969, Local 80's steward came into the laboratory in which the carpenters were installing fume hoods. The steward was accompanied by two sheet metal workers who were employed by J. Brodie and Sons, Inc., a sheet metal contractor who was also performing work on the jobsite. The steward told the carpenters to keep their hands off the fume hoods and had the sheet metal workers take down the fume hoods which the carpenters had installed. On or about October 10, 1969, carpenters were un- loading laboratory equipment from a truck. Local 80's steward approached them and said. "Don't touch that hood. You are not going to unload that equipment." On or about October 16, 1969, a similar incident oc- curred with the addition of 12 to 15 sheet metal work- ers, who physically thwarted the unloading. During the last week in October 1969, Local 80's steward visited the installation area, "threw his hands on" the hood which the carpenters were installing, and said: "Oh no, boys. You don't set the hood." The car- penters said that they didn't want any trouble and ceased performing the work. Speaker on October 17, 1969, filed the instant charge. b. Contentions of the parties The Sheet Metal Workers contends that inasmuch as all parties to this proceeding are bound to abide by the procedures for the settlement of jurisdictional disputes in the building and construction industry , and as the controversy in question has in fact been submitted to the National Joint Board and a decision issued thereon, this proceeding should be quashed and the complaint dismissed . The Sheet Metal Workers further claims that, if the Board proceeds to decide the dispute, it should give great weight to the decisions of the Na- tional Joint Board regarding the assignment of the dis- puted work. It also claims that it has installed all types of fume hoods throughout the area and is more qualified to perform the work. The Employer and Carpenters contend that all phases of fume hood installation should be performed by carpenters for the same reasons that were advanced and found controlling by the Board in Local 299, Sheet Metal Workers International Association, AFL-CIO (Metalab Equipment Co.), 173 NLRB 1329, namely: (1) The Employer has a longstanding nationwide prac- tice, which is in conformity with area practice, of as- signing the installation of the entire unit to carpenters; (2) the fume hoods are installed in the same manner as the rest of the laboratory furniture which is done by carpenters; (3) the hoods are tied into and attached to the other furniture in the laboratory as integral units; (4) the assignment of the hood installation to the car- penters who install the rest of the furniture makes for efficiency; (5) the work involves the basic skills of car- pentry-minute leveling, plumbing up, adjusting sashes, doors, and alinement, refinishing marred sur- faces, and leaving the furniture in a highly finished state; (6) the handtools necessary to perform the work are those of the carpenter , not the sheet metal worker; and (7) carpenters have extensive experience in this installation. The Employer further contends that it is under no obligation to submit this dispute to the National Joint Board and that on the basis of the evidence offered no privity or contractual obligation of any kind has been established which supports the Respondent Union's claim that all parties have contractually bound them- selves to abide by the procedures of settlement of juris- dictional disputes before the National Joint Board. LOCAL UNION NO 80, SHEET METAL WORKERS' The Intervenor, whose membership includes the ma- jor national manufacturer of scientific laboratory furni- ture (including fume hoods), informs us that Speaker is a specialty contractor, specializing in such installations and performs them in 30 States. The Intervenor alleges that Speaker has always used carpenters for the instal- lation work because of their skills, tools, and experi- ence. Moreover, because such installation is performed on an integrated building block method, with each seg- ment of the work falling on the previous segment, the use of sheet metal workers for installation of fume hoods would severely effect efficiency and the flow of work. In addition, the Intervenor alleges that the sheet metal workers lack skills, tools, and experience for the installation of fume hoods and that the hoods are not considered to be a part of the ductwork which is tradi- tionally performed by sheet metal workers. c. Applicability of the statute The charge, which was duly investigated by the Re- gional Director, alleges a violation of Section 8(b)(4)(D) of the Act. The Regional Director was sat- isfied upon the basis of such investigation that there was reasonable cause to believe that a violation had been committed and directed that a hearing be held in accordance with Section 10(k) of the Act. We find with- out merit Respondent Union's contention that the Na- tional Joint Board constituted an agreed-upon method for voluntary adjustment of the dispute within the meaning of Section 10(k). There is no evidence that Speaker has any current contractual relationship with Respondent Union, or that through its contract with the Carpenters International Speaker agreed to submit this dispute to the National Joint Board or be bound by its decisions. Moreover, there is no evidence that Speaker has participated in the proceedings before the Joint Board. On the basis of the entire record, and the Respondent Union's actions of physically preventing the carpen- ters, who were assigned the work by the Employer, from performing the disputed work, we find that there is reasonable cause to believe that a violation of the Act has occurred and that the dispute is properly before the Board for determination. d. Merits of the dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due considerations to various relevant factors . The Board has held that its determination in a jurisdictional dis- pute case is an act of judgment based upon common sense and experience, balancing such factors as are in- volved in a particular case.' ' International Association ofMachintsts, Lodge No. 1743, AFL-CIO (J. 561 Neither the Sheet Metal Workers nor the Carpenters has been certified by the Board with respect to any employee involved in the instant proceeding. The Em- ployer has a contract with the Carpenters International under which it has agreed, inter alia, to recognize the jurisdictional claims of the Carpenters, in the locality in which any work of the Company is being done. The Sheet Metal Workers, on the other hand, has advanced no contractual claim to the work in dispute. From the testimony in the record in regard to area practice, it appears that in this particular locality the Employer has consistently assigned work of the type in dispute to carpenters. Further, the evidence indicates that the Employer, who operates in 30 States of the United States, consistently assigns this work to carpenters, in spite of Joint Board decisions to the contrary, and no evidence was produced showing that the Employer had ever willingly assigned the work of installing the fume hoods to sheet metal workers.' Speaker, despite the awards of the National Joint Board and the Appeals Board, continued to use carpenters for the disputed work and indicated that it intended to assign the dis- puted work to carpenters when they commenced work on the project at which the instant dispute arose. The skills required to perform the disputed work appeared to be the traditional skills of the carpenter, and not those of the sheet metal worker, in that the installation of the fume hood requires that it be at- tached to a base cabinet, which has to be leveled and installed according to typical cabinetry practices (level- ing, screwing, and bolting together, and gluing of tops), and the fume hood is then installed with the same practices'and requirements that are needed to install basic furniture. In view of these installation require- ments, it is apparent that it would be more efficient if the fume hood base cabinet and the fume hood itself were installed at the same time, by the same people, rather than making this installation a two-step opera- tion which it would have to be if the disputed work were assigned to sheet metal workers. Furthermore, after the installation has been completed, it is necessary for the carpenters to make any adjustments and/or repairs to the installed furniture. The tools and experi- ence necessary to do all of this work are those of the carpenters. The experience required is obviously pos- A. Jones Construction Co.), 135 NLRB 1402 ' The record shows that initially a dispute arose over the installation of fume hoods on the Science Complex Building Project at the University of Michigan, on which Speaker was a subcontractor The locale of that dispute was approximately 12 5 miles away from the instant dispute and also within the geographical jurisdiction of the Unions involved herein This prior dis- pute was brought before the National Joint Board, and on February 6, 1969, the National Joint Board rendered its decision awarding the disputed work to the Sheet Metal Workers The United Brotherhood of Carpenters and Joiners of America, AFL-CIO, entered an appeal with the Appeals Board The Sheet Metal Workers International and the Intervenor herein par- ticipated in the proceedings before the National Joint Board, involving that dispute 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sessed by carpenters here, since the carpenters are re- quested by the Employer whenever such installation work is required. e. Conclusions as to merits of dispute Upon consideration of all pertinent factors in the entire record, we shall not disturb the Employer's as- signment of disputed work to carpenters . The Sheet Metal Workers has no contractual claim to the work. The work requires the skills and tools of carpenters. The Employer has consistently assigned work of the type in dispute to carpenters, and obviously is satisfied with the results thus achieved, which show an efficiency and economy of operation, and desires no change. Ac- cordingly, we shall determine the existing jurisdictional dispute by deciding that carpenters , represented by the Carpenters, rather than sheet metal workers, repre- sented by the Sheet Metal Workers , are entitled to the work of unloading , moving, uncrating, raising, placing, and installing of fume exhaust hoods and fume hood superstructures, and attaching the superstructures to laboratory counters and bases .' In making this deter- mination, we are awarding work in question to em- ployees represented by the Carpenters, but not to the Carpenters or its members. The present determination is limited to the particular controversy which gave rise to this proceeding. lations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceed- ing, the National Labor Relations Board makes the following determinations of dispute. 1. Carpenters who are represented by Local 512, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the work of unloading, moving, uncrating, raising, placing, and installing of fume exhaust hoods and fume hood super- structures, and attaching the superstructures to labora- tory counters and bases in the science complex at East- ern Michigan University, Ypsilanti, Michigan. 2. Local No. 80, Sheet Metal Workers' International Association, AFL-CIO, is not entitled, by means pro- scribed By Section 8(b)(4)(D) of the Act, to force or required Speaker & Associates, Inc., to assign the work in dispute to employees represented by the aforesaid Union. 3. Within 10 days of the date of this Decision and Determination of Dispute, Local No. 80, Sheet Metal Workers' International Association, AFL-CIO, shall notify the Regional Director for Region 7, in writing, whether or not it will refrain from forcing or requiring Speaker & Associates, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to Sheet Metal Workers rather than to Carpen- ters. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- 7 Metalab Equipment Co, supra