Sheet Metal Workers, Local No. 223

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers' International Association, Local Union No. 223, AFL-CIO and Centex Winston Corporation and Bricklayers , Masons, and Plaster- ers' Union of America, Subordinate Union No. 7 of Dade County, Florida. Case 12-CD-171 September 29, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge by Centex Winston Corporation, herein called the Company, alleging that Sheet Metal Workers' International Association, Local Union No. 223, AFL-CIO, herein called Local 223, had violated Section 8(b)(4)(i)(ii)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Charles R. Poe Masonry, Inc., herein called Poe Masonry, a subcontractor, and/or the Company, to assign certain work to employees represented by it rather than to employees represented by Bricklayers, Masons, and Plasterers' Union of America, Subordi- nate Union No. 7 of Dade County, Florida, herein called the Masons. Pursuant to notice, a hearing was held before Hearing Officer Carl A. Peterson on May 27, 1971, and continued before Hearing Officer Jack T. Brellis on May 28 and June 1, 1971. All parties 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. Thereafter, the Company and Local 223 filed briefs, which have been duly considered. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegat- ed its powers in connection with this case to a three- member panel. The rulings of the Hearing Officers made at the hearing are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Company is the developer, builder, and owner of an apartment house complex in Miami Beach, Florida, known as Winston Towers. During the 12 months preceding the hearing, the Company received in excess of $50,000 worth of goods directly from 1 The Masons appeared only to make a claim to the disputed work. 2 Poe Masonry was the subcontractor for the installation of masonry work, including the primary air duct systems , in the same building. points outside the State of Florida. Poe Masonry annually purchases materials directly from suppliers outside the State of Florida valued in excess of $50,000. We find that the Company and Poe Masonry are engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED Masons and Local 223 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE The dispute pertains to the installation of masonry block ventilating ducts (chases) in kitchens and bathrooms at the Company's apartment house project in Miami Beach, Florida. A. Background The Company is engaged in constructing seven condominium apartment houses of uniform size and design, named Winston Towers, in Miami Beach, Florida. At the time of the hearing, two buildings, Towers 100 and 200, were under construction. The Company expects to complete Towers 300-700 over the next 5 years. The Company awarded a subcontract to The Dublin Company, herein called Dublin Company, for the installation of sheet metal ventilating ducts in the kitchens and bathrooms of Towers 100.2 Upon completion of the sheet metal duct work in Towers 100, Dade County building inspectors refused to approve the work because the ducts did not meet county fire code regulations. In order to comply with the code, the Company was required to put additional insulation around the sheet metal ducts at an increased cost. In order to continue to comply with the fire code and to avoid the extra cost in using metal ducts, the Company designed a "U" shaped masonry block3 especially for the ventilating systems in the kitchens and the bathrooms in Towers 200-700. In the light of these plans, the Company, on October 8, 1970, contracted with Poe Masonry to perform " all mason- ry work" on Towers 200, including the installation of "all block for bathroom and kitchen exhaust" ducts. Soon thereafter, Leonard Dublin, President of Metal Fabricators, herein called Metal Fabricators, a subsidiary of Dublin Company, received a call from Respondent's business manager, Wallace Strong, who 3 The Company entered into an agreement with Maule Industries to manufacture the block especially for the apartment project. 193 NLRB No. 61 SHEET METAL WORKERS, LOCAL NO. 223 407 informed Dublin that Metal Fabricators would have to be the subcontractor for the installation of masonry ducts if it warted to get men to do sheet metal work at the Towers job.4 Dublin contacted the Company and informed its officials of Strong's statement. As a direct result of this incident, and to keep sheet metal workers from walking off the job, the Company gave Dublin a letter dated November 10, 1970, assigning the disputed work to Dublin Company although there was no contract between Dublin Company and the Company at this time for any other work on Towers 200. On December 20, 1970, the Company entered into a formal contract with Dublin Company for heating, ventilating, and air-conditioning work in Towers 200, but specifically excluded "masonry chases for kitchen ventilating and masonry chases for bathrooms." Subsequently, on March 19 and 20, 1971, masons and bricklayers employed by Poe Masonry5 began to install the masonry ducts in kitchens and bathrooms in Towers 200. On the following Monday, March 22, 1971, the sheet metal workers employed by Metal Fabricators reported for work as usual, but soon thereafter walked off the jobsite because bricklayers and masons employed by Poe Masonry were at work installing the masonry blocks for the ventilating systems in the kitchens and bathrooms. John Serko, the Company's project manager, met with Strong for the purpose of resolving the dispute and getting sheet metal workers back on the fob. Strong asserted that there was no dispute and that the work of installing masonry ducts was sheet metal men's work. Strong indicated repeatedly that the situation could be resolved: (1) if the Company took the work away from Poe Masonry and gave it to sheet metal men ; or (2) if masons continued to do the work, but sheet metal men were paid to stand behind them to watch the work being done. Strong told the Company that if sheet metal men didn't get the work in dispute, none of the sheet metal men would report for work. The Company refused to agree to Strong's suggestions . From the time of the walkoffs in March and continuing until May 1971, when United States District Judge Peter T. Fay issued a temporary injunction against Local 223's withholding sheet metal workers from the job, Local 223 refused to supply more than one or two sheet metal men to do the work that had to be done by Metal Fabricators 6 B. Contentions of the Parties Local 223 contends that the Notice of Hearing should be quashed because there is no evidence in the record that it sought to require the Company to assign the disputed work to its members rather than to members of the Masons. Local 223 also contends that it is prepared to submit the dispute to the National Joint Board for the Settlement of Jurisdictional Disputes. On the merits, Local 223 asserts that the work should be assigned to its members. Finally, Local 223 asks that if the work is assigned to masons, the award should be limited to the Towers 200 job. The Company contends, inter alia, that the assign- ment should remain with employees represented by the Masons, because masons possess the required skills, the assignment is consistent with area and industry practice, and the present assignment is more efficient and economical. It also contends that the assignment should include the entire project of seven condominiums. The Masons claims the disputed work for its members. C. Applicability of the Statute The charge herein alleges a violation of Section 8(b)(4)(D) of the Act. The facts show that the Company contracted with Poe Masonry for perform- ance of the disputed work, and that the latter assigned the work to its employees who are members of the Masons. Local 223 demanded that the Company take the work away from Poe Masonry and assign it to sheet metal workers. When the Company refused to comply with this demand, Local 223 caused its members to stay away from the job until the United States District Court issued an injunction against Local 223's conduct. Accordingly, we find, contrary to Local 223's contention, that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that the dispute is properly before the Board for determination under Section 10(k) of the Act. D. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors.? As there is no Board certification of either Union, neither Local 223 nor the Masons is favored by this factor. 1. Collective-bargaining agreements Local 223 claims the disputed work primarily because of the jurisdictional provision of its collec- 4 Metal Fabricators is signatory to a standard form collective- bargaining agreement with Local 223 which requires it to bid the entire job for work that comes within the trade jurisdiction of the Sheet Metal Workers International Association 5 Poe Masonry is a party to a collective-bargaining agreement with the Masons Union 6 During this period one sheet metal man was sent to the job for one- half day and on another occasion two men were sent to the job. 7 International Association of Machinists, Lodge No 1743 (J A Jones Construction Company), 135 NLRB 1402, 1411 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive-bargaining contract with Metal Fabricators to install "all ferrous or non-ferrous metal work . . . all other material used in lieu thereof . . . and in handling systems regardless of materials used." While Local 223's contract is vague as to the work in dispute, the Masons collective-bargaining contract with Poe Masonry, the subcontractor herein, contains an explicit provision covering all work performed on several types of masonry, including the laying of cement or concrete blocks. In these circumstances we find that the Masons contract favors the assignment to masons. 2. Company and industry practice Poe Masonry is exclusively a masonry subcontrac- tor and has performed on many other construction sites in Florida. The evidence shows that it is a well settled industry and area practice for masons and bricklayers to install concrete blocks or masonry materials in ventilating ducts. The materials used in the project are masonry block similar in all respects, except the shape, to other masonry blocks used in the same type of ducts. Therefore, this factor favors the assignment of the work in dispute to masons. 3. Skills and efficiency of operations Both labor organizations claim that their respective members are capable of performing the disputed work. Masons perform the type of work in dispute on a daily basis as part of their regularjobs, whereas the evidence indicates that sheet metal men do not usually install concrete or cement blocks in construc- tion projects. The record also shows that in order to comply with the Dade County fire code it cost the Company an additional $60,000 in Towers 100 to fireproof the sheet metal ducts installed by sheet metal men. It was for this reason that the Company designed a masonry block to be used in the other units. It would be less expensive to have masons install masonry block ducts than to have sheet metal men install either masonry or sheet metal ducts. The factors of cost and efficiency therefore favor an assignment to masons. 4. Determination of the National Joint Board Local 223's contention that the Notice of Hearing should be quashed is without merit as it is clear from the record that there is no voluntary method for the adjustment of the dispute. Contrary to Local 223's contentions, the record clearly shows that the Compa- ny is not required by contract and does not intend to submit the dispute herein to the National Joint Board. E. Scope of the Assignment The Company requests that the Board issue an award assigning the disputed work to masons for the entire project of seven condominium apartments. Local 223 requests that the award be limited to the Towers 200 jobsite because the contracts for the remaining units have not been let. The record shows that the Company has definite plans to use masonry ducts in the remaining units, because they comply with the code, and are more economical to install. The Company has also con- tracted with Maule Industries to supply the blocks for future use. In these circumstances, the identical dispute is likely to recur at the remaining buildings to be erected as part of the Winston Towers Project. Accordingly, our determination will cover the disput- ed work to be performed at Towers 300-700 as well as at Towers 200. F. Conclusions as to the Merits of the Dispute In view of the foregoing, we believe that the work in dispute should be awarded to employees represented by the Masons. The fact that Poe Masonry's assign- ment conforms to its own and area practices and is consistent with its collective-bargaining agreement, the fact that masons and bricklayers employed by Poe Masonry not only have the requisite skills but are familiar with all facets of the work in dispute, and the attendant efficiency of operations lead us to conclude that the Company's and/or Poe Masonry's assign- ment of the work is the proper one. Therefore, we shall determine the dispute by assigning the work in question to employees represented by Masons. In making this determination, which is limited to the Towers 200-700 buildings, we are not assigning the work to the Masons or its members. 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. Employees employed by Charles R. Poe Ma- sonry, Inc., who are represented by Bricklayers, Masons and Plasterers' Union of America, Subordi- nate Union No. 7 of Dade County, Florida, rather than employees represented by Sheet Metal Workers' International Association, Local Union No. 223, AFL-CIO, are entitled to perform the work of installing masonry ducts in kitchens and bathrooms at the Company's Towers 200-700 project in Miami Beach, Florida. SHEET METAL WORKERS, LOCAL NO. 223 409 2. Sheet Metal Workers' International Associa- tion, Local Union No. 223, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Centex Winston Corporation or Charles R. Poe Masonry, Inc., to assign the above work to sheet metal men represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers' International Association, Local Union No. 223, AFL-CIO, shall notify the Regional Director for Region 12, in writing, whether it will refrain from forcing or requiring Centex Winston Corporation or Charles R. Poe Masonry, Inc., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to employees represented by Local 223 rather than to employees of Charles R. Poe Masonry, Inc., who are represented by the Masons.