Sheet Metal Workers Union Local No. 4

80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers Union, AFL-CIO, Local No. 4 and Varner Construction Company, Inc. and United Brotherhood of Carpenters and Joiners of America, Local Union No. 345. Case 26-CD-89 July 10, 1972 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, follow- ing charges filed by Varner Construction Company, Inc., herein called the Employer, alleging that Sheet Metal Workers Union, AFL-CIO, Local No. 4, herein called Respondent, has violated Section 8(b)(4)(D) of the Act. A hearing was held before Hearing Officer Robert C. Batson on February 14, 1972. The Employer, Respondent, and United Brotherhood of Carpenters and Joiners of America, Local Union No. 345, herein called Carpenters, 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, briefs were filed by the Employer and the Respondent which have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this proceeding the Board makes the following findings: 1. THE BUSINESS OF THE COMPANY The parties stipulated, and we find, that the Employer is a Tennessee corporation doing business in Memphis, and purchased and received goods and materials valued in excess of $50,000 directly from outside the State of Tennessee. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Respondent and the Carpenters are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts In December 1971, the Employer was engaged in the renovation of an Esso service station in Mem- phis, Tennessee. Sometime prior to December 22, Respondent's business agent, Buchannon, contacted James Varner, president of the Employer, and advised him that the metal work involved in the mansard roof package which was to be used in the renovation was properly that of sheetmetal workers. When Varner replied that carpenters had always installed these materials and he saw no reason to change, Buchannon stated that he had put up with enough of that. On Friday, December 22, a picket line was established at the jobsite by members of Respondent. Henry Ryder, the job superintendent, called Buchannon regarding the picket line and was told by Buchannon that he felt the work was his. Ryder then said he would pull his men off the job if Buchannon would remove the pickets, but Buchan- non refused to do so. After a few hours, however, the pickets left, and work resumed the following Mon- day. B. The Work in Dispute The work in dispute involves the installation of the Benco (brand name) metal mansard frame and assembly, which consists of triangular steel frames, metal purlins, aluminum shingles and fascia, and aluminum or metal soffits. The facts show that after the existing structure is prepared by carpenters for the renovation, the triangular frames are first attached to the building to form the new roof. Then metal rods or purlins are connected horizontally to the frames to hold the aluminum shingles. Next, a track is attached to the bottom side of the frame to receive the soffits, which come in rolls of aluminum, and which form the underside of the roof overhang. Finally, metal trim called fascia is attached to the edge of the new roof. C. Contentions of the Parties The Employer contends that it is not required by the terms of its contract with the Carpenters to submit this dispute to the National Joint Board, that its assignment of the work in dispute to carpenters is more efficient, that carpenters possess the skills necessary to work with masonry and concrete and to read blueprints, and that all contractors in the area performing this work utilize carpenters to do the work. The Carpenters position is the same as that of the Employer, but it contends, further, that the parties 198 NLRB No. 17 SHEET METAL WORKERS UNION LOCAL NO. 4 are not bound to submit the dispute to the Joint Board because it is in noncompliance status with the Joint Board. The Respondent claims that the dispute should be submitted to the Joint Board, that the work, which is entirely metal, requires sheetmetal skills, that mem- bers of Respondent would be more efficient, and that its members perform this type of work in the area. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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, and that there is no agreed -upon method for the voluntary adjustment of the dispute. The parties stipulated: That on or about December 22, 1971, the Sheet Metal Workers Union began picketing the Em- ployer's Esso Service Station renovation project at Northwest and Frayser and that said picketing was in support of Sheet Metal Union demands that Varner assign certain dispute [sic] work being performed by members of the Carpenters Union to members of the Sheet Metal Workers. Based on the foregoing and the record as a whole, we find that an object of the Respondent 's picketing was to force or require the Employer to assign the disputed work to employees represented by Respon- dent. Accordingly, we find that reasonable cause exists to believe that a violation of Section 8(b)(4)(D) of the Act has occurred. Contrary to the contention of Respondent, the record does not clearly establish that the Employer and the Carpenters are bound to submit this dispute to the National Joint Board . The only reference to the Joint Board is in article VI , section 11, of the local Memphis contract between AGC and the Carpenters, which has been incorporated by refer- ence into the Employer's contract with the Carpen- ters, and which states that "The work of the Carpenters shall be all work recognized as such by the Building and Construction Trades Department, AFL-CIO, and the National Joint Board for the Settlement of Jurisdictional Disputes ." This language is, in our opinion, ambiguous on its face inasmuch as it is unclear whether the parties are bound only to jurisdiction recognized in past Joint Board awards, or whether it commits them to submit future disputes to the Joint Board. Moreover, the testimony in the record with respect to the circumstances surrounding 1 For example, the testimony of Mark Borod , AGC's negotiator, is that sec I I was intended to bind the parties only to prior Joint Board awards, while testimony of James White, assistant business representative of the Carpenters, who was also present during the negotiations , was that future 81 the negotiations is not particularly helpful in resolv- ing this issue.' In these circumstances, we are unable to conclude that the parties have contractually bound themselves to submit this dispute to the Joint Board, and we therefore find that this dispute is properly before the Board for determination.2 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 various relevant factors. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board as collective-bargain- ing representative for a unit of the Employer's employees. Although the Employer does not have a current contract with Respondent, it has, as noted, signed an agreement with the Carpenters. However, as the language in that contract (quoted supra) does not specifically set forth work jurisdiction, we find that these factors are not useful in making our determina- tion. 2. Employer and area practice It is uncontradicted that the Employer, for the 2 years it has been in operation, has, for some 40-45 similar jobs, consistently assigned the work in dispute to members of the Carpenters. In addition, the overwhelming evidence with respect to area practice is that the work in dispute is traditionally performed by carpenters. Respondent's evidence that sheetmetal workers do the disputed work in fact refers to roofing projects other than the Benco package involved herein, and to buildings other than service stations in the Memphis area. The Employer and area practice, therefore, favor the Employer's assignment. 3. Skills, efficiency, and economy of operation While the record disclosed that the work in dispute, although involving the use of metal materials, was primarily related to traditional carpenter's work, the Respondent did present evidence to suggest that sheetmetal workers also possessed the skill necessary to perform the work. On balance, therefore, we are disputes would be presented to a National Joint Board 2 In view of this holding, we find it unnecessary to reach the contention of the Carpenters that the parties are not bound to submit the dispute to the Joint Board because it is in noncompliance status with the Joint Board 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD satisfied that both groups of employees possess the necessary skills to perform the work. With respect to efficiency, the testimony showed, as noted above, that carpenters have had much experience in performing the work in dispute. Furthermore, a representative of the Benco Compa- ny, manufacturer of the roof package, testified that carpenters were efficient not only on the particular jobs that had been performed by the Employer, but on many similar jobs in the area. With regard to economy of operation, the evidence disclosed that the use of sheetmetal workers would double or triple the cost of a project, and would result in delays inasmuch as the work would have to be subcontract- ed. We therefore find that these factors favor the Employer's assignment. CONCLUSIONS Having considered all pertinent factors present herein, we conclude that employees who are repre- sented by the Carpenters are entitled to perform the work in dispute. This assignment is consistent with the initial assignment, the employer and area practice, and the efficiency and economy of opera- tion. In making this determination, we are awarding the work in question to employees employed by the Employer who are represented by the Carpenters, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to this proceeding. 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 makes the following Determination of Dispute: 1. Employees of Varner Construction Company, Inc., who are currently represented by the United Brotherhood of Carpenters and Joiners of America, Local Union No. 345, are entitled to do the installation of the Benco (brand name) metal mansard frame and assembly in the renovation of the Esso service station at Northwest and Frayser Streets in Memphis, Tennessee. 2. Sheet Metal Workers Union, AFL-CIO, Local No. 4, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Varner Construction Company, Inc., to assign the above work to its members of employees whom it repre- sents. 3. Within 10 days from the date of this Decision and Determination of Dispute, the labor organiza- tion listed in the preceding paragraph shall notify the Officer-in-Charge for Region 26, in writing, whether or not it will refrain from forcing or requiring Varner Construction Company, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to its members or employees whom it represents rather than to employees of Varner Construction Company, Inc., represented by United Brotherhood of Carpenters and Joiners of America, Local Union No. 345.