Sheet Metal Workers, Local No. 28

SHEET METAL WORKERS, LOCAL NO. 28 Sheet Metal Workers International Association, Local Union No. 28, AFL-CIO, and Diesel Construction, a division of Carl A. Morse, Inc., and Associated Brick Mason Contractors of New York, Inc.,' and Bricklayers Union No. 34, New York, affiliated with the New York Executive Committee for Bricklay- ers, Masons and Plasterers International Union of America, AFL-CIO? Case 2-CD-425 November 9, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following the filing of charges by Associated Brick Mason Contractors of New York, Inc.,3 alleging violations by the Sheet Metal Workers of Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Mary W. Taylor on June 21 and 30, and July 8, 1971. All parties were afforded an opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues.4 At the hearing the Sheet Metal Workers filed a motion to quash, which was opposed by the ABMC and the Bricklayers. Thereafter, the Sheet Metal Workers and the Brick- layers filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Briefs of the parties were duly considered. Upon the entire record in this case, the Board makes the following findings: I. THE EMPLOYERS The parties stipulated, and we find, that La Sala Mason Corporation and Diesel Construction, a division of Carl A. Morse, Inc., are engaged in commerce within the meaning of the Act. 1 The name of the Charging Party appears as corrected at the hearing. z The name of this Union appears as corrected at the hearing 3 Herein referred to as ABMC. The other parties are referred to respectively as the Sheet Metal Workers; the Employers or Diesel, Falk, Federal, and La Sala; and the Bricklayers. 4 Although served with the notice of hearing and afforded the opportunity to be present and to be represented by counsel, Diesel, Falk, Federal, and La Sala did not enter an appearance H. THE LABOR ORGANIZATIONS INVOLVED 79 The parties stipulated, and we find, that the Respondent, Sheet Metal Workers, and the Bricklay- ers are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts The present dispute arose over the construction of walls or enclosures surrounding air-conditioning fans and other unit components to be installed in a 35- story office building being erected at 22 Courtlandt Street, New York, New York. These walls or enclosures are referred to in the construction industry as casings or plenums.5 Diesel, the general contractor, subcontracted this work to La Sala, pursuant to specifications and plans of the building's architects, engineers, and owners calling for the use of masonry materials in the construction of casings and plenums throughout the building, along with all other masonry and brickwork to be done in the building. La Sala's employees are members of or represented by the Bricklayers, which has collective-bargaining agree- ments with ABMC, of which La Sala is a member. Sometime prior to November 1970, La Sala's employ- ees began constructing the masonry walls that eventually would surround the air-conditioning units to be installed in the sub-basement of the building. In December 1970, air-conditioning fans were delivered to the jobsite. Because of their large size, these fans had to be installed before the walls surrounding them could be completed. Federal Sheet Metal Co., whose employees are members of or represented by the Sheet Metal Workers, was to install the fans and erect air-conditioning equipment and ducts in the building, under subcontract from J. T. Falk and Co. Falk had been engaged by Diesel as the mechanical contractor for the installation of heating, ventilating, and air-conditioning systems. The terms of Falk's contract with Diesel specifically excluded the work of constructing masonry shafts, casings, and plenums. Diesel had no collective-bar- gaining agreements with the Sheet Metal Workers or Bricklayers. The record is silent in this regard as to Falk. As of the latter part of January 1970, the fans had not been installed. On inquiry, Diesel's construction 5 The Sheet Metal Workers contends strongly that in the air- conditioning trade casings are the was and partitions enclosing the air- conditioning units while plenums are air chambers through which air is drawn and fed such units, And that the significance of the distinction rests in the respective function each is required to perform. Citing examples where the terms casings and plenums have been used interchangeably, the Bricklayers contends that the only distinction of note is one of semantics. 194 NLRB No. 18 80 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD superintendent was advised by Federal's foreman, who was a member of the Sheet Metal Workers, and again a day or so later by the shop steward of the Sheet Metal Workers on the job, that Federal's employees had refused to install the fans because the walls enclosing them were to be made of masonry. It appears in this connection that a member of the Sheet Metal Workers at the jobsite had complained to the foreman in October 1970 that Federal's plans for the walls to be constructed of masonry violated the Sheet Metal Workers collective-bargaining agreement with the Sheet Metal Contractors Association of New York City, Inc., of which Federal was a member. The foreman had promptly informed the Sheet Metal Workers of this complaint. The Union investigated and advised the complainant in October 1970 that the contract was, in fact, violated.6 In February 1971, Gus Pasquinucci, a business agent of the Sheet Metal Workers, demanded of Diesel that the above walls be made of sheet metal, otherwise, its members would not install the fans.? Subsequently, on or about March 23 or 24, 1971, Diesel attended a meeting of the Sheet Metal Contractors Association at the invitation of the Sheet Metal Workers. During the course of the meeting the Sheet Metal Workers offered to permit Diesel to erect the walls with a combination of sheet metal and masonry, if Diesel agreed that on all other of its, jobs similar walls would be erected entirely of sheet metal. When Diesel refused, the Sheet Metal Workers replied it was worried about a slowdown if the matter were adjudicated (specifically mentioning the NLRB) and resulted in a decision unfavorable to them.8 On March 24, 1971, Diesel sent La Sala a letter instruct- ing it to stop construction of the walls in view of the Sheet Metal Workers refusal to work on the fans unless Diesel's plans were changed to replace mason- ry with sheet metal. On April 26, 1971, whilea hearing on the 10(1) petition seeking an injunction against the Sheet Metal Workers in this case was in progress before the United States District Court for the Southern District of New York, Federal's employees walked off the job at the Courtlandt Street building. The walkout by these employees ended 3 days later upon the issuance by the court of a temporary injunction against their union.9 B. Contentions of the Parties The Sheet Metal Workers claims that the notice of 6 While there is no direct evidence in the record that other members employed by Federal were then advised of the asserted contract violation, there is uncontradicted evidence that a formal report of contract violation was filed with the Sheet Metal Workers 4 or 5 months later and that Union filed a grievance under its contract with the Sheet Metal Contractors Association alleging a contract violation by Federal. This grievance had not been resolved at the time of the hearing in the instant case. 7 This is the testimony of Miller, Diesel's president. Pasquinucci hearing encompassing "the assignment of work involved in the construction of walls or other enclosures surrounding air-conditioning fans on all construction projects within the territorial jurisdiction of the Sheet Metal Workers . . . which walls or enclosures are commonly referred to as plenums or casings," should be quashed for two reasons: (1) There is no jurisdictional dispute between it and the Bricklayers because it does not claim the masonry work and the Bricklayers does not claim sheet metal work. Its sole dispute is with Diesel and its subcon- tractors over the choice of masonry rather than sheet metal construction and with Federal over its accept- ance of a contract which in effect excluded the use of sheet metal in the construction of casings and plenums. Thus it asserts there is no evidence that there are competing unions contesting for particular work. (2) There is no probable cause for finding that an 8(b)(4)(D) violation exists as all that occurred was the action of Federal's employees, themselves, deciding not to work because of the use of masonry casings. Sheet Metal Workers argues, however, that in the event the Board decides otherwise, the work in dispute should be awarded them based upon (1) their superior skills, experience, and knowledge in the air- conditioning field; (2) the work involves casings and not plenums; (3) company and industry practice; (4) the efficiency and economy of sheet metal over masonry in the construction of casings; (5) the breach of contract by Federal in making the decision to use masonry instead of sheet metal; and (6) the lack of a binding arbitration agreement or award on all the parties, such as Diesel, and the fact that a past arbitration between the Bricklayers and Sheet Metal Workers that is in evidence relates solely to plenums and does not assign the work of either trade to the other. Bricklayers, in opposing the motion to quash, contends that a jurisdictional dispute exists by virtue of the demands of the Sheet Metal Workers that sheet metal be substituted for masonry in the construction of casings and plenums in the Courtlandt Street building since this would cause La Sala and its employees represented by the Bricklayers to be replaced by Federal and its employees represented by the Sheet Metal Workers. In claiming the disputed work, Bricklayers has taken the position that (1) the architect, engineer, and owner of the building decided on the use of masonry for efficiency and economy of admitted that Miller called him in February or March, but denied that their conversation pertained to the instant jobsite at 22 Courtlandt Street. a This is the testimony of Miller as to what was said by Farrell, the president of the Sheet Metal Workers. Farrell denied that he made any work demands or mentioned a slowdown 9Ivan C McLeod, Regional Director v. Sheet Metal Workers International Association, Local Union 28, AFL-CIO, 334 F.Supp. 1098. SHEET METAL WORKERS, LOCAL NO. 28 operation; (2) custom, practice, and skill require bricklayers to construct walls surrounding air-condi- tioning fans and equipment whenever masonry material is specified; (3) the local Building Trades Employers Association so decided in an arbitration between Bricklayers and Sheet Metal Workers; (4) Federal never had the work contracted to it; and (5) the terms casings and plenums are interchangeable and meaningless in determining which union should be awarded the work. C. Applicability of the Statute Before the Board may proceed with the determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. We so find and, accordingly, deny the Sheet Metal Workers motion to quash for the following reasons. While the Sheet Metal Workers disclaims masonry work and the Bricklayers disclaims sheet metal work, we find that both Unions claim the work in dispute as described in the above notice of hearing. Thus, although the Sheet Metal Workers disclaims any interest in masonry work, and while it is true that the Sheet Metal Workers only demanded of the general contractor that the work specifications and materials be changed, the effect of its demands that the masonry work be replaced by sheet metal work would be to replace work done by members of the Bricklay- ers with work performed by its own members. Although the Bricklayers disclaims sheet metal work, it claims the masonry work performed by its mem- bers. Thus there are competing claims for work by two contesting unions. 10 That the Sheet Metal Workers action stems from its objections to the use of masonry rather than sheet metal casings or plenums does not detract from the jurisdictional nature of the dispute nor make the dispute any less a dispute between two competing groups of employees. In analagous situations the Board has held that the scope of 8(b)(4)(D) is not limited to competing groups of employees working for the same employer, but also extends to efforts to force the indirect assignment of work from employees of one employer to employees of another.'1 In the instant matter, the same elements are present (Federal substituted for La Sala, Sheet Metal Workers for Bricklayers) with only the added factor that the method and materials to be used in the construction 10 N L R.B v Radio & Television Broadcast Engineers Union, Local 1212 [Columbia Broadcasting System], 364 U S 573. 11 International Longshoremen's and Warehousemen's Union Local 19, et al. (American Mail Line, Ltd), 144 NLRB 1432, 1439-40. Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (Western Electric, Inc.), 141 NLRB 888, 894; and International Longshoremen's Association (Motor Transport Labor Relations, Inc.), 127 NLRB 35, 38, fn. 2. 12 Ibid 81 of casings and plenums would also be different. Accordingly, we find that a jurisdictional dispute exists.12 We also find without merit the Sheet Metal Workers claim that there is no jurisdictional dispute here because it was merely protesting Federal's purported violation of its collective-bargaining agreement which the Union interprets as prohibiting acceptance by Federal of air-conditioning work which does not include sheet metal casings. On its face the agreement only prohibits the subcontracting of sheet metal work. Nevertheless, we do not find it necessary to rule on the reasonableness of the Sheet Metal Workers interpre- tation of the agreement since the existence of an alleged breach of contract by Federal does not alter the nature of the present dispute, which, in fact, centers on the demand of the Sheet Metal Workers that the work of constructing casings or plenums be assigned to its members using sheet metal materials.13 Nor do we find any substance to the Sheet Metal Workers contention that it was seeking to preserve work for its members by compelling Federal's compliance to the collective-bargaining agreement in question since it is clear that Federal was never assigned the work of constructing the casings or plenums around the air-conditioning units, and thus, never had that work to contract out. With regard to the contention of the Sheet Metal Workers that it was not responsible for the conduct of its members who are Federal's employees in refusing to install the fans and in walking off the job, the Board is not charged with finding in a jurisdictional dispute context that a violation did in fact occur; only reasonable cause to believe that there has been a violation is needed.14 Without ruling on any of the credibility issues arising from the denials of the Sheet Metal Workers witnesses, we find that such reasona- ble cause exists based on the evidence that the Sheet Metal Workers threatened Diesel on one occasion not to install the fans unless its demands were met and on another to engage in a work slowdown. We also find in view of all the circumstances, including Sheet Metal Workers claim that it is entitled to the disputed work and our finding above that its agents threatened certain action unless it obtained such work, that the entire sequence of events may reasonably be inter- preted as establishing that Sheet Metal Workers transmitted advice to Federal's employees at the Courtlandt Street building that the use of masonry in 13 United Brotherhood of Carpenters and Joiners of America, Local No. 753, AFL-CIO (Blount Bros. Corporation), 175 NLRB 496. International Union of Operating Engineers, Local 520, AFL-CIO (Home Building Contractors, Inc.), 168 NLRB 256, 257; and Local 110, Sheet Metal Workers International Association, AFL-CIO (Brown and Williamson Tobacco Corporation), 143 NLRB 947, 951 14 United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Wendnagel & Company), 116 NLRB 1063, 1066. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the walls surrounding the air-conditioning fans violated the contract Federal had with that Union, thus inducing them to refuse to install the fans and to subsequently engage in a strike.15 Accordingly, the dispute is properly before the Board for determina- tion under Section 10(k) of the Act. D. The Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. As the Board has stated, its determination in a jurisdictional dispute case is an act of judgment based upon commonsense and experience in the weighing of these factors. In this connection, we consider the following factors: 1. Industry and area practice Sheet Metal Workers contends industry and area practice favor an assignment of the work to sheet metal workers because casings were made of sheet metal exclusively for the past 25 to 30 years, except for three jobs in the New York City area, including the present job. Bricklayers contends that such practice is limited to instances where architects' specifications call for sheet metal rather than masonry, that where they call for masonry such work has been performed satisfactorily by bricklayers. The record shows that plenums, as defined by the Sheet Metal Workers, have been made of either sheet metal or masonry in a substantial number of instances over the years, but that the practice of using masonry casings surround- ing high pressure outflow of air is an innovation in the local area in question, sheet metal having been the traditional material used in constructing such casings. However, an arbitration award in evidence 16 provides that all "plenums" made out of masonry will be erected by bricklayers, and those to be made out of sheet metal, will be built by sheet metal workers. The effect of this arbitration would seem to allow general contractors such as Diesel to choose the kind of material to be used in accordance with architects' specifications and plans of building owners. Diesel has in the past exercised the right to make this choice and has subcontracted the erection of walls to masonry subcontractors such as La Sala, whose employees, represented by the Bricklayers, have 15 Local 25, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), 152 NLRB 723. 16 Decision of -Building Trades Employers' Executive Committee in Sheet Metal Workers Local No 28 v Bricklayers Local No 54, August 12, 1970. Although the Sheet Metal Workers is correct in stating that Diesel was not a party to this arbitration, and thus not bound by it, we note that the decision recognizes that either type material may be used in constructing "plenums." There is also evidence in the record that although the term plenum was used, the work involved the construction of walls performed the work in the local area. Thus industry and area practice appear to be inconclusive. 2. Skill and training Sheet Metal Workers asserts that its members alone possess the requisite skills and experience necessary to erect casings, that is, walls enclosing air-conditioning units, as they have been erecting air-conditioning systems and casings for years, and as they are trained over a 4-year period by schooling, and journeymen often take postgraduate courses. It also asserts that bricklayer work of cementing bricks and blocks and setting them in position is a relatively unskilled calling. Bricklayers contends that its members have traditionally erected masonry enclosures, including plenums and casings, in a skillful manner, and that a sheet metal contractor admitted on the record that he does not question the competency of a mason contractor to build the disputed walls. The record shows that both sheet metal workers and bricklayers have performed the disputed work in a satisfactory and competent manner, using the materials of each one's own trade.17 In sum, we find that considerations of skill do not favor either of the contesting groups.18 3. Assignment of work Sheet Metal Workers claims that the decision to fabricate the walls out of masonry was made by Federal after it first drew and then discarded plans using sheet metal and that these facts support the Union's charge against that Company of breach of contract. From this it argues that the efforts of Sheet Metal Workers to preserve work in this case were identical with its efforts in N.L.R.B. v. Local Union No. 28, Sheet Metal Workers, 380 F.2d 827 (C.A. 2), denying enforcement of 156 NLRB 804, and that the Board should not permit contractors, at their whim, to prescribe jurisdiction of craft unions; that these facts should be considered by the Board in evaluating Diesel's assignment of the work in dispute to a mason contractor. Besides noting that the'case relied upon by the Sheet Metal Workers does not concern itself with alleged violations of Section 8(b)(4)(D), we find no valid basis in the record to substantiate the claim that Federal made the decision to use masonry or even was in a position to make such a decision. Although Miller, Diesel's president, at first identified Federal as one of the parties that initially decided to use masonry enclosing air-condrtiomng units. 17 This fact also serves to render unnecessary the resolution of the controversy over the correct usage of the terms casings and plenums. The only issue concerning us, whichever term is used to describe the work in dispute, is which competing group of employees should be awarded that work. 18 Further evidence of this is the fact that at times a combination of sheet metal and masonry structures have been used in building the walled enclosure. SHEET METAL WORKERS, LOCAL NO. 28 83 construction in the disputed work, he later corrected himself, stating that he had inadvertently said Federal when he had meant to say Falk. Miller went on to explain that Federal was not at all involved in the decision which was ultimately made by the architects, Emory Roth & Sons, and the owners of the building, Helmsley-Spear. Careful persual of the record leads us to conclude that Miller's initial testimony in this regard was due to an honest mistake on his part. The record shows that Falk was at all times the contractor engaged by Diesel to install the heating, ventilating, and air-conditioning systems in the building; that the contract between Falk and Diesel expressly excluded the disputed work; and that Falk could not subcon- tract to Federal what it did not have to give. In light of these circumstances, we conclude that Federal was never assigned the work in question and hence could not have been in the position of determining the kind of material to be used. On the other hand, it is clear that the assignment of the disputed work by Diesel to La Sala and its employees was made in accordance with the plans and specifications of the architects and owners of the building directing that all casings, plenums, and shaftways be constructed in masonry. 4. Efficiency and economy Sheet Metal Workers contends that evidence in the record shows that sheet metal is more efficient than masonry, because it has the flexibility required to withstand the high air pressures and velocities in units such as the one installed in the instant case involving at least 30,000 cubic feet per minute, whereas masonry is inflexible, and cannot withstand such pressures without causing escape of air and necessary repairs due to the fact that mortar, when dry, loses its sealing quality; that without steel in the masonry wall, the masonry wall has no loadbearing characteristics to withstand air pressure. It argues further that instances have occurred where damage has resulted from such pressures and the walls have had to be rebuilt. Thus, it concludes, in view of the necessity for costly steel reinforcing and repairs, masonry has no- cost advan- tages over steel metal. Bricklayers contends that evidence in the record shows, to the contrary, that because the enclosures in the instant case were coated, that they would be impervious to air pressures generated, that masonry walls are cheaper to install and repair, are more fire resistant, and result in quieter operation of the air-conditioning system. Where weight is no problem, as in the instant case, because the walls rest on the subbasement floor, the lighter weight of sheet metal is no advantage. 19 Although not in issue, it follows from this award of the disputed work that employees represented by Sheet Metal Workers would be entitled to perform the work if sheet metal were to be utilized. 20 Local Union No. 28 Sheet Metal Workers (Fast Pace Corp.), 183 Whatever the merits of that dispute, it is clear that those- commissioning the building selected masonry construction, and it is not within the province of the Board to countermand that selection. This factor weighs in favor of an award to employees represented by the Bricklayers. 5. Conclusions as to the merits of the dispute From the foregoing, we conclude, based in particu- lar upon the factors of efficiency and economy of operations, and the assignment of the work which has been satisfactorily performed by bricklayers em- ployed by La Sala and other employers who are members of the ABMC that the factors involved favor these employees' performance of the disputed work, whenever masonry materials are specified Accordingly, we award such work to these employees who are represented by the Bricklayers.19 In making this determination, we award the work to the employees of the above employers who are currently represented by the Bricklayers, but not to this Union or its members. 6. Scope of the award The Bricklayers requests that the Board issue a broad work award on its behalf encompassing all jobsites wherever the territorial jurisdiction of the Bricklayers New York Executive Committee, i.e., New York City and Long Island to the Wading River, and the Sheet Metal Workers, whose jurisdiction encompasses New York City, coincide. Bricklayers contends that such is necessary in order to avoid a repetition of similar jurisdictional claims and attend- ant work stoppages at construction sites within the territorial jurisdiction of the Sheet Metal Workers. In support of its request, Bricklayers introduced eviden- ce of other incidents antedating the hearing herein which, together with the instant dispute based on a New York City-wide claim for work, demonstrates that the work in dispute has been a continuous source of controversy between it and the Sheet Metal Workers in the New, York City area, and that similar disputes involving La Sala and other mason contrac- tors may occur in the future. We find that the foregoing evidence and other cases decided by the Board 20 demonstrate a proclivity on the part of the Respondent to engage in further unlawful conduct with attendant work interruptions. Accordingly, we conclude that the issuance of a broad award is appropriate in this case 21 NLRB No. 120; Sheet Metal International Association, Local 28, AFL-CIO (Nu-Fiberglass Duct Corporation), 159 NLRB 1423. 21 Millwrights Local Union No. 1102 (Den Cartage Company), 160 NLRB 1061, 1082-83. See also Local 169, Carpenters, 119 NLRB 726, 732. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE Sheet Metal Workers International Association, Local No. 28, AFL-CIO, coincide. 2. Sheet Metal Workers International Association, Local Union No. 28, AFL-CIO, is not and has not been entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employers herein or any employer -member of the ABMC of New York, Inc., to assign the above work when performed as set forth above, to sheet metal workers who are currently represented by such labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers International Association, Local Union No. 28, AFL-CIO, shall notify the Regional Director for Region 2, in writing, whether it will or will not refrain from forcing or requiring the Employers, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the above work in dispute to employees represented by Bricklayers Union No. 34, New York, affiliated with the New York Executive Committee for Brick- layers, Masons, and Plasterers International Union of America, AFL-CIO. 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 makes the following determination of dispute. 1. Employees employed by La Sala Mason Corpo- ration or any other employer-member of the Associat- ed Brick Mason Contractors of New York, Inc., and who are represented by Bricklayers Union No. 34, New York, affiliated with the New York Executive Committee for Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, are entitled to perform the work involved in the construc- tion of walls or other enclosures surrounding air- conditioning fans, otherwise commonly referred to as plenums or casings, on all construction projects where masonry construction is specified, and wherever the territorial jurisdiction of Bricklayers Union No. 34, New York, affiliated with the New York Executive Committee for Bricklayers, Masons, and Plasterers International Union of America, AFL-CIO, and of