Sheet Metal Workers, Local 312

660 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers International Association, Local Union No. 312, AFL-CIO and Elias Morris & Sons Co. and United Brotherhood of Carpenters and Joiners of America, Local No. 184, AFL-CIO. Case 27-CD-127 December 21, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Elias Morris & Sons Co.' alleging that Sheet Metal Workers International Association, Local Union No. 312, AFL-CIO,2 had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing Morris to assign the work in dispute to Local 312 rather than to employees of Morris represented by United Brother- hood of Carpenters and Joiners of America, Local No. 184, AFL-CIO.3 Pursuant to notice, a hearing was held before Hearing Officer Merrill M. McLaughlin on July 13, 14, and 15, 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, Morris and Local 312 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 rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed.4 The Board has considered the briefs and the entire record in this case and hereby makes the following findings: I. THE BUSINESS OF THE COMPANY Morris, a Utah corporation, is engaged in the installation of acoustical tile, roof decks, computer floors, floor coverings, and hardwood floors in the Salt Lake City, Utah, area. It annually purchases and receives goods and materials from outside the State of Utah valued in excess of $50,000. 1 Herein called Morris. 2 Herein called Local 312 3 Herein called Local 184 4 The Hearing Officer referred to the Board Local 312's motion to dismiss the instant charge. In view of our decision and determination herein, Local 312's motion to dismiss is hereby denied. The parties stipulated, and we find, that Morris 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 ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 312 and Local 184 are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts In October 1969 Morris received a $650,000 contract to install "Soundlock" metal-faced acousti- cal ceiling tile, as well as a small amount of nonmetal- faced acoustical tile, at the Latter Day Saints (LDS) Church Office Building in Salt Lake City. The building is being erected as a joint venture by prime contractors W. B. Johnson & Co., W. W. Clyde & Co., and Christiansen Bros., Inc. Morris' carpenters began installing the "Soundlock" ceiling in April 1970; the work is scheduled for completion by July 1972. About February 23, 1971,5 Local 312's business agent demanded of Morris that it assign the acoustical ceiling work to that Union's sheetmetal workers since the installation of "Soundlock" ceilings was a task which had consistently been awarded to Sheet Metal Workers members by the National Joint Board for Settlement of Jurisdictional Disputes (NJB).6 Morris rejected the demand. Thereafter, on March 17, at Local 312's request, Carpenters and Sheet Metal Workers International representatives met at the jobsite in an attempt amicably to settle the jurisdic- tional dispute. They resolved, in the absence of a representative from Morris, that the work belonged to members of Local 312 and that as of Monday, March 22, carpenters represented by Local 184 would no longer perform the disputed work. Morris thereafter refused to abide by the decision and, on March 22, its Local 184-represented carpenters continued to work on the "Soundlock" ceiling. Local 312's job steward on the project led a picket line on March 22 at the building site; the pickets carried signs announcing that Morris was "unfair" to them. All craftsmen left the job by noon, when Morris removed its carpenters. During the strike, a Christiansen Bros. representative was informed by Local 312's job steward that the picket signs would come down when carpenters left By letter dated July 29, 1971, Local 312 requested oral argument. The request is denied as the record adequately presents the issues and positions of the parties 5 All dates hereinafter are 1971 unless otherwise indicated 6 Local 312 concedes that the installation of nonmetal-faced acoustical tile is Local 184's work. 194 NLRB No. 100 SHEET METAL WORKERS, LOCAL 312 the job. Local 312's business agent attempted to end the walkout; he asserted then that the strike by other contractors' sheetmetal workers was not sanctioned by Local 312. The picketing ceased after carpenters left on March 22 and construction work resumed within a day. On April 2, Morris executed a collective-bargaining agreement with Local 184 which, inter alia, canceled its July 1963 contract with that Union. By the terms of the 1963 agreement, Morris, a nonmember of Associ- ated General Contractors of America (AGC), agreed to comply with all the terms, including wages, hours, and working conditions, of the AGC, Utah Chapter- Carpenters District Council of Utah labor agreement dated July 8, 1963, and any amendments and renewals thereof. The 1963 AGC-District Council agreement had been replaced by a contract effective July 14, 1969, which, like its predecessor,7 required employer and union to abide by any decision or interpretation of the NJB. However, on October 7, 1969, the AGC informed the District Council that, since the 1948 agreement creating the NJB had expired, the contract article binding its members to the NJB was null and void. On April 2 Morris agreed to comply with the July 14, 1969, agreement on condition that: The Employer by this agreement is in no way subject to the decisions of or the jurisdiction of the National Joint Board for the settlement of Juris- dictional Disputes, or bound by any other volun- tary method for the determination of jurisdictional disputes. On April 6, Morris was informed by the NJB that the board would consider the jurisdictional dispute between Locals 312 and 184 on April 14 or 15. Morris was asked to send a full description of the work in dispute to the NJB. By telegram dated April 12, Morris advised the NJB that it would not be bound by any NJB decision and it protested the holding of a hearing since the Board was considering conducting the instant 10(k) proceeding. On April 16, the NJB informed Morris that on the basis of trade practice the work in dispute "shall be assigned to sheetmetal workers." Morris informed Local 312 that it would not comply with the NJB award. On April26, the NJB directed Morris to comply immediately with the decision. On April 27, a Local 312 representative met with Morris' vice president to discuss the possibility of Morris' using a composite crew of carpenters and sheetmetal workers to install the "Soundlock" tile. While nothing was resolved then, Morris did sign an "Extension of Labor Agreement" with Local 312 which "extended for a period of sixty (60) days or 661 until a new agreement is reached, whichever comes first" the May 1, 1967, Local 312-Utah Sheet Metal Contractors Association labor agreement. Morris was not a member of that association, had no sheetmetal workers then in its employ, and had never signed a Sheet Metal Workers bargaining contract. Morris only executed the "Extension" to assure Local 312 that if Morris hired sheetmetal workers they would receive union scale wages retroactively to May 1, when the master agreement expired. Also, by signing the "Extension" Morris assured itself, and others at the building site, that Local 312 would not strike the LDS Church Office Building project on May 1. The general contractor on May 12 ordered Morris to resume the "Soundlock" installation work. When work resumed on May 17, Morris added two Local 312 sheetmetal workers to its crew of carpenters. While the record is unclear whether the sheetmetal workers had been hired permanently or on a 2-week trial basis, under either circumstance Morris found that the sheetmetal workers' productivity was too low and, on May 28, it discharged them. On June 1, Local 312 pickets appeared at the jobsite with signs stating, "Elias Morris Company carpenters refuses to abide by National Joint Board for Settling Jurisdictional Disputes decisions. This is information only." Local 312 concedes that it was responsible for the June 1-4 picketing which caused construction work to stop. When Morris removed its carpenters, the picketing ceased and work continued. Thereafter, Morris resumed "Soundlock" installation work at the site using carpenters only. Local 312, on June 28, informed the Regional Director for Region 27 that picketing would resume in 10 days. On July 16, the United States District Court for Utah temporarily enjoined Local 312's picketing activity. B. Work in Dispute The dispute involves the assignment of the task of installing "Soundlock" metal-faced acoustical ceiling tile at the LDS Church Office Building in Salt Lake City. As noted above, Local 312 concedes that Morris' carpenters represented by Local 184 are entitled to install nonmetal-faced acoustical tile. C. Contentions of the Parties Morris contends that Local 312 violated Section 8(b)(4)(D) of the Act by striking, or inducing or encouraging the employees of various contractors at the LDS Church Office Building site to strike, with an object of compelling Morris to assign the "Soundlock" installation work to sheetmetal workers represented by Local 312 rather than to carpenters 7 There is nothing in the record to indicate that the July 1963 AGC agreement did not have a similar clause. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented by Local 184. It further asserts that Morris, as a nonmember signatory of the AGC contract, is not bound by the NJB award of April 16 since prior thereto the AGC, Utah Chapter informed the Carpenters, District Council that in view of the NJB's expiration the AGC contract clause binding its members to the NJB was null and void. Further, Morris argues that, its April 2 agreement with Local 184 specifically exempted it from NJB coverage before the NJB award issued on April 16. Finally, Morris contends that its April 27 agreement with Local 312, which was designed to avoid a strike on May 1 and insure the retroactive application of union wages if Morris were to employ sheetmetal workers, did not bind it to the NJB. Morris would have the Board determine the instant dispute in favor of Local 184's carpenters on the basis of past practice, its work assignment, the extant labor agreement between the parties, stability of the labor force, efficiency and economy, skills involved, and area practice. Local 312 asserts that Morris is bound to comply with the NJB's April 16 award and, therefore, it urges the Board either to quash the notice of hearing or award the work in dispute to - sheetmetal workers represented by Local 312. -It further contends that the agreement executed by Morris and Local 184 on April 2 is ineffective to oust the NJB of jurisdiction since the dispute arose before Morris purportedly withdrew from NJB coverage. Moreover, Local 312 argues, the agreement entered into on April 27 between it and Morris binds the Employer to the NJB. Finally, Local 312 would have the Board determine the dispute on the merits in favor of its members on the basis of skills, efficiency, economy, and industry practice. Local 184's position at the hearing was substantially the same as that of Morris. D. 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) of the Act has been violated. Local 312 concedes that it was responsible for the June 1 picketing at the LDS Church Office Building site which resulted in the cessation of all construction. Local 312 also informed the Regional Director for Region 27 on June 28 that it intended to resume such strike activity within 10 days. The pickets carried signs on June 1 protesting Morris' failure to abide by the NJB's award of April 16. We find that these circumstances clearly establish a prima facie case supporting the alleged violation of Section 8(b)(4)(D) of the Act. It is argued by Local 312, however, that the dispute is not properly before the Board because Morris agreed to be bound by the NJB determinations, including the instant April 16 NJB award. We disagree. In July 1963, Morris executed a labor agreement with Local 184 by which it agreed to comply with all the terms of AGC-Carpenters District Council contract. One of the clauses therein bound the parties to abide by the awards of the NJB, created in May 1948. In July 1969, a new AGC-Carpenters contract was negotiated which contained the same NJB clause. Thereafter, on September 30, 1969, the agreement which in May 1948 created the NJB expired and, on October 7, 1969, the Utah Chapter of the AGC informed the Carpenters that the NJB contract clause was null and void. While another NJB was thereafter created, there is no evidence that Morris, a nonmember of AGC, then agreed to be bound by its decisions. Accordingly, we find that Morris was not bound by the April 16 decision of the newly created NJB even though its labor relations are otherwise governed by the 1969 AG -Carpenters agreement.8 Local 312 further asserts that the "Extension of Labor Agreement" executed by Morris and Local 312 on April 27 had the effect -of binding Morris to the April 16 NJB award of the disputed work exclusively to sheetmetal workers. We disagree. It is clear that at the time of the NJB decision Morris had no contractual relationship with Local 312 which'could have bound Morris to the NJB. Thereafter, despite the NJB award of the work exclusively to sheetmetal workers, on April 27 Morris' vice president met with a Local 312 representative and they discussed using a composite crew of carpenters and sheetmetal workers to resolve the dispute and complete the installation work. Although Morris did not then reach a full understanding with Local 312's representative con- cerning the composite crew, it agreed to execute the "Extension" agreement to assure Local 312 that Morris would pay any sheetmetal workers it might hire union scale wages retroactive to May 1, when the master agreement expired. By signing the agreement, Morris also assured itself and other contractors at the LDS building site that Local 312 would not engage in a strike on May 1. We find nothing in the above to warrant the inference that by signing the extension agreement on April 27 Morris- intended to bind itself to the April 16 NJB award. We note, moreover, that Local 312's expressed willingness to resolve the dispute by 8 Bricklayers, Masons and Plasterers' International Union of America, the April 2 agreement between Morns and Local 184 also relieved Moms Local No 1, AFL-CIO (Lembke Construction Company of Colorado, Inc), of the responsibility of complying with the NJB's April 16 award. 194 NLRB No 98. In view of this finding, we need not determine whether SHEET METAL WORKERS, LOCAL 312 permitting the use of a composite crew of sheetmetal workers and carpenters is inconsistent with its assertion that the April 27 agreement binds Morris to the NJB award of the work exclusively to sheetmetal workers. From the above, and the entire record herein, we find, contrary to Local 312, 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. E. 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 all relevant factors. In International Association of Machinists, Lodge No. 1743 (J. A. Jones Construction Co.),9 the Board set forth the following criteria to be considered in the making of an affirmative award in a 10(k) proceeding: The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g., the skills and work involved, certifications by the Board, company and industry practice, agree- ments between unions and between employers and unions, awards of arbitrators, joint boards, and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer's business.10 1. Certification by the Board and collective- bargaining agreements Since neither Local 312 nor Local 184 is certified as the collective-bargaining representative of Morris' employees, this is a neutral factor supporting award of the work in dispute to neither union. Since Morris has a collective-bargaining agreement with Local 184, this is a factor favoring assignment of the work to carpenters. 2. Agreement between the Unions and the award of the NJB On March 17 the Unions' International representa- tives agreed that the work in dispute should be performed by Local 312's sheetmetal workers. It is clear, however, that neither Morris nor Local 184 abided by this decision since on March 22 Local 184's carpenters continued to install "Soundlock" acousti- cal tile for Morris at the work situs. Thus, we can give no effect to this abortive attempt to resolve the instant work dispute. Similarly, while Morris on April 27 agreed to use a 9 135 NLRB 1402. 10 Id at 1410-11 11 United Association of Journeymen and Apprentices of the Plumbing and 663 composite crew of carpenters and sheetmetal workers as of May 17, it is clear that this attempt at resolving the work dispute failed too. Within 2 weeks Morris discharged the sheetmetal workers whom it had hired because they could not install "Soundlock" tile economically. Thus, this short-lived agreement can be given little effect. As noted above, the NJB awarded the work in dispute to local 312's sheetmetal workers on the basis of alleged trade practice. However, in the absence of an explanation of the factors relied on by the NJB or supporting data that might enable us to determine the degree of deference that should be accorded the award, we cannot assign it much significance." 3. Company and area practice The record reveals that Morris has employed carpenters for 25 years and for the past 10 years they have installed "Soundlock" ceiling tile systems. Morris has never used sheetmetal workers to install such acoustical tile. During the same period, in the Salt Lake City area the overwhelming majority of "Soundlock" acoustical tile ceilings have been in- stalled by carpenters. Thus company and area practice supports an award to the carpenters. 4. Efficiency and economy of operation and skills involved As noted above, carpenters have been performing the disputed work to Morris' satisfaction for 10 years. The record reveals that an experienced sheetmetal worker would need 3 to 6 months' on-the job training to obtain peak efficiency at installing "Soundlock" tile. Both craft groups use basically the same tools and possess the same basic skills. However , it is clear that currently the carpenters possess greater expertise than sheetmetal workers in installing "Soundlock" ceilings. This fact was borne out during the 2 -week period when Morris used a composite crew at the building site. Sheetmetal workers produced less than half the work of carpenters during the first week and did not improve thereafter. While carpenters earn more money per hour than sheetmetal workers in Salt Lake City, the unit labor cost for carpenters is lower due to their greater productivity. These factors support assignment of the disputed work to carpenters. Conclusions On all the evidence, we determine the instant jurisdictional dispute in favor of carpenters and find Plpefitting Industry of the United States and Canada, Plumbers Local 55, AFL-CIO (Midwest Prestressed Corp.), 184 NLRB No. 105. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD carpenters represented by Local 184, rather than the sheetmetal workers represented by Local 312, are entitled to perform the work of installing "Soundlock" acoustical ceiling tile at the LDS Church Office Building site. Company and area practice, the collective-bargaining agreement, efficiency and eco- nomy of operation, and the skills involved favor this result. Our present determination to award the work to the employees who are represented by Local 184, but not to that Union or its members, is limited to the particular controversy which gave rise to this proceed- ing. 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 case, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees who are employed by Elias Morris & Sons Co. as carpenters and who are currently represented by United Brotherhood of Carpenters and Joiners of America, Local No. 184, AFL-CIO, are entitled to perform the work of installing "Soundlock" acoustical ceiling tile at the LDS Church Office Building site in Salt Lake City, Utah. 2. Sheet Metal Workers International Association, Local Union No. 312, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Morris to assign the above work to sheetmetal workers who are represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers International Association, Local Union No. 312, AFL-CIO, shall notify the Regional Director for Region 27, in writing, whether it will refrain from forcing or requiring Morris, by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to employees represented by Local 312, rather than to employees represented by Local 184.