Sheet Metal Workers' Intl Assn.

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers' International Association, AFL-CIO, Local No. 99 and The Brower Company and Acoustical Applicators Local No. 1982, affil- iated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 19-CD-185 February 15, 1972 ing of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS Sheet Metal Workers and Acoustical Applicators are labor organizations within the meaning of Section 2(5) of the Act. 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 a Section 8(b)(4)(D) charge filed on June 8, 1971, by The Brower Company (referred to as the Employer). The charge alleged that on or about June 8, 1971, Sheet Metal Workers' International Association, AFL-CIO, Local No. 99 (referred to as Sheet Metal Workers), engaged in certain activity proscribed by the Act with an object of forcing or requiring the assignment of certain work described below to employees represented by Sheet Metal Workers rather than to employees represented by Acoustical Applicators Local No. 1982, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (referred to as Acoustical Applicators). A hearing was held at Seattle, Washington, on Octo- ber 4, 5, and 6, 1971, before Hearing Officer Joseph L. Davis. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bear- ing on the issues. Thereafter all parties filed briefs in support of their positions. 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 au- thority in this proceeding 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 from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER The Employer is a State of Washington corporation with its principal place of business located at Seattle, Washington, where it is engaged in, among other things, the installation of acoustical ceilings and parti- tions. During the past year the Employer purchased supplies and materials valued in excess of $50,000 from sources outside the State of Washington. We find that the Employer is engaged in commerce within the mean- 195 NLRB No. 81 III THE DISPUTE A. Background and Facts of the Dispute Morrison Knudson is the prime contractor at the passenger expansion project of the Seattle-Tacoma, Washington, International Airport. It awarded a sub- contract to the Employer for the installation of acousti- cal ceilings. About 80 percent of the ceiling design requires the use of the Donn Paraline product. The remainder of the project will be completed with a stan- dard acoustical ceiling product. The Sheet Metal Workers claims only the Donn Paraline work. At the time of the hearing, the Employer had completed 50 percent of its commitment. The Employer is engaged in the business of installing acoustical ceiling systems. It employs a permanent work force of 25-30 acoustical workers. They are mem- bers of the Acoustical Applicators. Almost all of the Employer's acoustical ceiling jobs are wholly per- formed by such members. It employs no sheet metal workers. On February 1, 1971, the Employer assigned the work of installing the Donn Paraline ceiling at the Seattle-Tacoma airport to its own employees who are members of the Acoustical Applicators. Thereafter these employees began work on the job. In early April 1971, Glen L. Arnold, business representative of Sheet Metal Workers, asked the Employer's manager of acoustical sales, Robert L. Kopp, about employing a composite crew of sheet metal workers and acoustical workers. Kopp said that he would let Arnold know after he talked to other company officials. However, Kopp made no change in the job assignment. Thereafter, about June 8, Austin St. Laurent, execu- tive secretary of the Seattle Building and Construction Trades Council, informed the prime contractor's resi- dent manager (Earl C. Gregg) and the Employer's president (Edward E. Saberhagen) that the jobsite would be picketed if the Employer did not assign the ceiling installation work to sheet metal workers. St. Laurent claimed the work on the basis of a decision of the National Joint Board for the Settlement of Jurisdic- tional Disputes. On June 9, Sheet Metal Workers' Business Repre- sentative Arnold told representatives of the Carpenters' District Council, with which Acoustical Applicators is affiliated, that the Sheet Metal Workers would picket SHEET METAL WORKERS ' INTL ASSN. 413 the airport job if the Employer did not abide by the Joint Board decision . On June 22, employees of F. B. Gardner, one of the subcontractors at the airport job, who were also Sheet Metal Workers ' members, ceased work, apparently in support of their fellow sheet metal workers who were seeking the ceiling installation work. B. The Work in Dispute The disputed work involves the installation of Donn Paraline acoustical ceilings at the passenger expansion project of the Seattle-Tacoma, Washington, Interna- tional Airport. C. The Contentions of the Parties 1. The Employer contends that Sheet Metal Workers violated Section 8(b)(4)(D) of the Act by exerting coer- cive pressure upon it, upon the prime contractor (Mor- rison Knudson), and upon Acoustical Applicators to compel the Employer to assign the installation of Donn Paraline acoustical ceilings , previously assigned by the Employer to its own employees represented by Acous- tical Applicators, to sheet metal workers represented by Sheet Metal Workers. On the merits , the Employer contends that the work has been assigned to its em- ployees represented by the Acoustical Applicators and such work should properly be awarded to them. 2. At the outset of the hearing Sheet Metal Workers moved to quash the Notice of Hearing on two grounds: the Board does not have probable cause to believe a violation has occurred; and a decision of the National Joint Board for the Settlement of Jurisdictional Dis- putes is dispositive of the work assignment issue. The Hearing Officer referred the motion to the Board. On the merits, Sheet Metal Workers contends that the dis- puted work belongs to its members on the basis of historical area practice. It also asserts that the reason for the Employer's assignment to members of Acousti- cal Applicators was to avoid employment of minority apprentices. 3. Acoustical Applicators maintains that the Em- ployer's assignment to its members is supported by substantially the same factors relied on by the Em- ployer. D. Applicability of the Statute Before the Board proceeds with a determination of 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. On June 8 , 1971, Executive Secretary St. Laurent of the Seattle Building and Construction Trades Council, with which Sheet Metal Workers is affiliated , informed both the prime contractor's manager and the Em- ployer's president that the installation of the Donn Paraline ceiling on the airport job should be assigned to sheet metal workers in accord with the decision of the Joint Board and, if not, picketing would occur. Sheet Metal Workers' Business Representative Arnold communicated the same message the next day to a representative of the Acoustical Applicators . On June 22, Sheet Metal Workers ' members, who were em- ployees of another contractor on the site, ceased work, seemingly to protest the Employer 's work assignment. Sheet Metal Workers argues that these facts do not show reasonable cause to believe the statute was vi- olated because there is no showing that St. Laurent was speaking for Sheet Metal Workers . It further argues that there is no showing that it was responsible for the walkout by subcontractor B. F. Gardner 's sheet metal employees, a walkout which occurred after the charge was filed. As to the statement made by its agent, Ar- nold, Sheet Metal Workers argues that it is no basis for the charge because it occurred after the charge was filed and was not made to the Employer but only to Carpen- ters' Council or Acoustical Applicators ' local repre- sentatives. The Board is only required to find that there is rea- sonable cause to believe that Section 8(b)(4)(D) has been violated before making a determination of the dispute out of which the alleged unfair labor practice has arisen . Sheet Metal Workers is a member of the Seattle Building and Construction Trades Council. The Council's executive secretary, St. Laurent, pressed the Sheet Metal Workers' claim to the disputed work. St. Laurent was himself a member of Sheet Metal Work- ers, a previous business agent of that Union, and a delegate from it to the Council . St. Laurent's threat to picket made to the Employer's president and to the resident manager of the prime contractor unless the disputed work was assigned to Sheet Metal Workers, Sheet Metal Workers ' Representative Arnold's similar statement to Carpenters' District Council representa- tives, and Sheet Metal Workers ' members' subsequent walkout on another part of the job being performed by a subcontractor, establish a prima facie case supporting the alleged violation. We find on the above evidence , and the entire record, that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the dispute is properly before the Board for determination under Sec- tion 10(k) of the Act. Sheet Metal Workers also contends that the Re- gional Director erred in not dismissing the charge prior to the hearing because the parties had agreed upon a voluntary method of adjustment of the dispute . It relies on the decision of the National Joint Board for the Settlement of Jurisdictional Disputes . The Joint Board issued a decision after referral from the Sheet Metal Workers. Neither Acoustical Applicators nor the Em- ployer was a party to the proceeding leading to the 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision. Acoustical Applicators had withdrawn from the Joint Board and the Employer was never a party to it. The Board is charged with the resolution of these jurisdictional disputes "unless the parties to the under- lying dispute settle the case or agree upon a method for settlement." N.L.R.B. v. Plasterers' Local No. 79, 404 U.S. 116. All of the necessary parties had not agreed to be bound by the Joint Board's decision or any other voluntary method of adjustment for the settlement of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find no merit in this contention of Sheet Metal Workers. For the foregoing reasons, we deny the Sheet Metal Workers' motion to quash the Notice of Hearing. 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 . Inter- national Association of Machinists, Lodge No. 1743 (J A. Jones Construction Co.), 135 NLRB 1402, 1410-11. Only two other Donn Paraline acoustical systems have been installed in the area. These were located at Seattle Community College and Ingram High School. The Employer was the contractor on the Seattle Com- munity College job. On both jobs the work was per- formed by carpenters, principally acoustical workers. Sheet Metal Workers' Respresentative Arnold tes- tified that his Union had not claimed the Community College job because he discovered the assignment to acoustical workers when the job was 75-80 percent completed, and that Employer Manager Kopp told him that the type of ceiling job was singular and would not be used again soon. Sheet Metal Workers asserts, in'its brief, that the Donn Paraline system is considered metal pan ceiling work , which sheet metal workers have installed in the Seattle area for many years. How- ever, the record shows that the Donn Paraline system represents a further development of the standard or conventional acoustical ceiling which Sheet Metal Workers has not previously claimed. We find that the company and industry practices favor assignment to acoustical workers. 1. Collective-bargaining agreement The Employer has a collective-bargaining agreement with the Acoustical Applicators. It has entered into such contracts with that labor organization since 1952, when Acoustical Applicators was formed. It has no collective-bargaining agreement with Sheet Metal Workers. The Employer's continuing collective-bargaining agreements with Acoustical Applicators is a factor fa- voring assignment of the work to employees repre- sented by Acoustical Applicators. 2. Company and industry practices The Employer has been in the business of installing acoustical ceilings for many years . It has a nucleus of 25-30 carpenter employees , who are members of Acoustical Applicators , to perform this work. Other employers in the area who are in a like business also employ principally members of Acoustical Applica- tors.' The Employer employs no sheet metal workers. The Donn Paraline ceiling is a suspended acoustical ceiling. The standard acoustical ceiling is a suspended grid system with acoustical pads dropped into the grid squares. The Donn Paraline ceiling is composed of sub- stantially the same component parts as the standard acoustical ceiling in general use in the area. It differs principally in that its fascia styling is longitudinal rather than square . This design is accomplished by snapping metal beams onto the acoustical frames. Cf Lathers Union Local 104, etc (The Blaine Petty Company), 186 NLRB No 70 at sec III, E 3. Relative skills Acoustical Applicators members have devoted themselves exclusively to suspended acoustical ceiling work for more than 20 years. Their jobs require special- ized experience and skill . They undergo a 4-year ap- prenticeship which includes extensive training and ex- perience in acoustical work. Acoustical Applicators has more than 100 members trained to perform ceiling installation work. Sheet Metal Workers has no formal training course in ceiling installation . Members select their own spe- cialty after an initial apprenticeship in their basic field. They gain their skill on their own , working on a job. Sheet Metal Workers' Representative Arnold testified that the Union had 20 or 25 members qualified to in- stall the type of ceiling in dispute. He named about a half dozen men, of whom two or three appear to have been Acoustical Applicators' members. The metal pan work which sheet metal workers have done in the past is declining because of the relatively higher cost of such ceilings. The ceiling installation work itself is a precision op- eration. It requires perfect alignment in relation to floors below and to other installations such as lights and decorative and structural parts which enter or join the ceiling. Alignment is a primary concern in install- ing ceilings to meet unconstructed walls as well as in meeting the portions of the ceiling that are worked on separately by other contractors performing construc- tion work. Acoustical Applicators ' members on the job have been exercising these skills to the satisfaction of the prime contractor. SHEET METAL WORKERS' INTL ASSN. 415 The factor of training and skill thus supports an award to acoustical workers. its own employees. We therefore find no merit in the Sheet Metal Workers' contention. 4. Efficiency and economy The Donn Paraline ceiling system is only a portion of the ceiling to be installed at the jobsite. Sheet Metal Workers claims only that portion. If the Employer were to divide the work between acoustical workers and sheet metal workers, the former would be idle some part of the working time while they waited for sheet metal workers to clip on the beam or pan. They would have to wait to do layout, leveling, or aligning of the suspension system. Sheet Metal Workers contended at the hearing that its members could perform all the duties required. Apart from whether their skills match those of the trained acoustical workers, the record casts doubt on whether Sheet Metal Workers has enough trained members to perform the work. Its representative tes- tified that at any one time he could call on eight work- ers, and the Employer would be free to hire any others needed if Sheet Metal Workers could not supply them. The Employer maintains a permanent nucleus of 25-30 acoustical workers. Its work force on the airport project is 20. The Employer thus has no assurance of a continuous, available work force from Sheet Metal Workers. We find that the factors of efficiency and economy favor an award to acoustical workers. 5. Allegation of racial bias Sheet Metal Workers contends that the Employer was considering assignment to employees represented by Sheet Metal Workers but did not do so because it would have been required to employ minority sheet metal apprentices. There is no evidence to support that contention. The Employer assigned the work to its own acoustical workers in February 1971. In April, Sheet Metal Workers claimed the work. At that time its rep- resentative, Arnold, advised the Employer's Manager Kopp that court decisions had ordered Sheet Metal Workers to refer minority apprentices. Kopp testified that court orders applicable to Sheet Metal Workers did not influence the Employer's officials in not chang- ing the work assignment, made 2 months earlier. The record shows that the Employer made, and continued, the assignment in accord with usual practice to utilize CONCLUSIONS On all the evidence, we determine this jurisdictional dispute in favor of acoustical workers and find that employees of The Brower Company represented by Acoustical Applicators, rather than sheet metal work- ers represented by Sheet Metal Workers, are entitled to perform the work of installing Donn Paraline acousti- cal ceilings at the passenger expansion project of the Seattle-Tacoma, Washington, International Airport. The collective-bargaining agreement, company and area practices, relative skills, and efficiency and economy of operations are factors which cause us to reach this result. In making this determination, we are awarding the work in issue to the Employer's em- ployees represented by Acoustical Applicators, and not to Acoustical Applicators or its members. The deter- mination is limited to the particular dispute which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoing findings, the National Labor Relations Board hereby makes the following determination of dispute: 1. Employees who are employed by The Brower Company as acoustical workers and represented by Acoustical Applicators Local No. 1982, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to perform the work of installing Donn Paraline acoustical ceilings at the passenger expansion project of the Seattle-Tacoma, Washington, International Airport. 2. Sheet Metal Workers' International Association, AFL-CIO, Local No. 99, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require The Brower Company, Seattle, Washington, to assign such work to individuals represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers' Inter- national Association, AFL-CIO, Local No. 99, shall notify the Regional Director for Region 19, in writing, whether it will refrain from forcing or requiring The Brower Company, by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to employees represented by Sheet Metal Workers, rather than to employees represented by Acoustical Applicators.