Sheet Metal Workers, Local 553

SHEET METAL WORKERS, LOCAL 553 187 Sheet Metal Workers International Association Local No. 553 and Ray Proof Corporation and Local 2028, United Brotherhood of Carpenters and Joiners of America. Case 18-CD-138 July 13, 1972 DECISION AND DETERMINATION OF DISPUTE Connecticut) and during the same time had sales to points directly outside the State of Connecticut in excess of $50,000. The value of the project at the site of this jurisdictional dispute is valued in excess of $500,000. We find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. BY MEMBERS FANNING, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Ray Proof Corporation (herein referred to as the Employer) alleging that Sheet Metal Workers International Association Local No. 553 (hereinafter referred to as the Sheet Metal Workers) has violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer Richard R. Anderson on March 14, 15, 16, 22, and 23, 1972. 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. All parties, including Local 2028, United Brother- hood of Carpenters and Joiners of America (herein referred to as the Carpenters), the Sheet Metal Workers, and the Employer, appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence on the issue. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in this case the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated to the following facts: Ray Proof Corporation is a Delaware corporation en- gaged in the manufacturing and installation of acoustical enclosures. Ray Proof has a contract through a subsidiary, Audio Suttle Corporation, a Delaware corporation, with Morrison-Knudsen and Associates, for the installation of acoustical sound- proof panels and doors at the Grand Forks area Safeguard Missile construction site near Nekoma, North Dakota. This contract is valued in excess of $50,000. During the past year Ray Proof Corporation purchased more than $50,000 worth of materials which originated from points outside the State of Connecticut (Ray Proof has a plant in Norwalk, II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that Sheet Metal Workers International Association Local No. 553 and Local 2028, United Brotherhood of Carpenters and Joiners of America, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Morrison-Knudsen is the general contractor at the Grand Forks area Safeguard Missile construction site near Nekoma, North Dakota. Audio Suttle has a contract with Morrison-Knudsen for the manufac- ture and installation of acoustical soundproof panels and doors at the missile control center located at the MSR (Missile Site Radar) site near Nekoma, North Dakota. Audio Suttle in turn has subcontracted the installation of the panels and doors to its parent corporation, Ray Proof Corporation, the Employer herein. The Employer has an International agreement with the Carpenters Union. When the Employer does a field installation its procedure is to send a Carpenters foreman to the site and to use local carpenters to do the work. Installation of the panels at the MSR site was scheduled to begin July 7, 1971. Prior to that time, the Employer had notified the local Carpenter Union's business agent and requested a supply of carpenters to do the work. Upon its arrival on the site on July 6, the Employer had a meeting with representatives of the Carpenters and the Sheet Metal Workers. At that time the Sheet Metal Workers claimed the work of installing these panels claiming that they were, in fact, plenums within the Sheet Metal Workers' jurisdiction. Employees repre- sented by the Carpenters began installing the panels on July 7. Thereafter, the Sheet Metal Workers filed a petition with the National Joint Board seeking assignment of the work of installing the enclosures. Although offered an opportunity to do so, neither the Carpenters nor the Employer submitted anything to the Joint Board. On August 19, 1971, the Joint Board awarded the work of installing the enclosures to employees represented by the Sheet Metal Workers. Shortly thereafter, the Employer left the jobsite 198 NLRB No. 36 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pending resolution of scheduling and jurisdictional difficulties. The Employer then sought to follow the procedures as to jurisdictional disputes set forth in the Project Stabilization Agreement. The Project Stabilization Agreement is an agreement between the general contractor and some of the unions on the site, including the Carpenters but not the Sheet Metal Workers. Subcontractors are bound by the Project Stabilization Agreement in their relationship to the signatory unions because of their relationship to the general contractor.' As of September 16, 1971, the dispute had reached the stage where it was pending before the general presidents of the Carpen- ters and Sheet Metal Workers. By letter of October 21, 1971, to Morrison-Knud- sen, the Employer stated that it had been informed by the Carpenters that (1) the Carpenters feels there is no doubt about the fact that the installation of these audio panels is its members' work, (2) the Sheet Metal Workers is not a signatory to the Project Agreement, and (3) neither the Employer nor the Carpenters is represented on the Joint Board. The Employer further stated that there was no further action that it could take to resolve the dispute prior to returning to the jobsite. At a November 18, 1971, meeting of the Standing Board of Adjustment, the Employer announced that it was its decision to continue the work with the carpenters. Mr. B. Q. Barnes, business manager representing the Sheet Metal Workers, declared that he would strike the job if the Sheet Metal Workers did not get the work. Thereafter, on approximately November 24, 1971, Morrison-Knudsen made a further effort to have the general presidents resolve the dispute. At a Decem- ber 16, 1971, meeting of the Standing Board of Adjustment, the dispute was further discussed. Although the minutes of that meeting indicate that Barnes stated he would "banner" the job if the Sheet Metal Workers did not get the work, at the hearing Barnes denied making such a threat. On that same day, a meeting.of the Department of Defense Labor Management Committee 2 was held. During that meeting the committee passed a resolution directing the Employer and the unions to abide by the Joint Board decision. By letter dated December 20, 1971, to Morrison-Knudsen, the Sheet Metal Workers general president, Edward J. Carlough, stated that the Sheet Metal Workers is not a signatory to the Project Agreement and therefore the Agreement did not apply to it. On December 23, 1971, the Employer filed its charges against the Sheet Metal Workers. B. The Work in Dispute The work in dispute consists of the installation of acoustical enclosures at the missile control center located at the MSR (Missile Site Radar) site near Nekoma, North Dakota.3 C. The Contentions of the Parties The Employer and the Carpenters contend that there is no voluntary method for the voluntary adjustment of the dispute to which all of the parties are bound. They further contend that the Employer's assignment was proper in light of the factors usually considered by the Board in these matters. The Sheet Metal Workers contends that the Board is without jurisdiction to determine the merits of the dispute under Section 10(k) of the Act since the parties have agreed upon methods for the voluntary adjustment of the dispute. Alternatively, the Sheet Metal Workers contends that, should the Board decide it has jurisdiction to decide merits of the dispute, the work should be assigned to employees represented by it on the basis of the factors usually considered by the Board in making awards. D. Applicability of the Statute Before the Board may .proceed to 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 and that the parties have not agreed upon methods for the voluntary adjustment of the dispute. The parties herein have stipulated that Sheet Metal Workers Local No. 553's business representative, B. Q. Barnes, at a Standing Board of Adjustment meeting on November 18, 1971, stated that he would strike the project site if other than members represented by Sheet Metal Workers Local No. 553 performed the work. We find that reasonable cause exists ' to believe that the Sheet Metal Workers violated Section 8(b)(4)(D) of the Act by making this threat to strike.4 Next we must determine whether the parties had an 1 Art. XVI, "Jurisdictional disputes," reads as follows Step 1 The Employer agrees to make assignments of work in accordance with International Agreements and Agreements of Record If there is no such agreement applicable to the disputed work, Employer shall assign the work in accordance with established practice in the area according to his best judgment Step 2 If a dispute apses, it shall be referred to the Standing Board of Adjustment for settlement Step 3 If the dispute continues, the Employer or the Unions involved should refer the dispute to the Missile Site Labor Committee Step 4. If the dispute is not settled by the Committee , it shall then be referred to the General Presidents of the affected International Unions for adjustment There shall be no work stoppage while a jurisdictional dispute is being adjusted The Contractor's assignment shall apply while thejunsdictional dispute is being adjusted 2 The parties agree that this is the committee referred to as the "Missile Site Committee" in the Project Stabilization Agreement 3 The Sheet Metal Workers stipulated to this description subject to its contentions as to the nature of these acoustical enclosures 4 In view of this finding we find it unnecessary to determine whether Barnes, on December 16, 1971, threatened to "banner" the job. SHEET METAL WORKERS, LOCAL 553 189 agreed-upon method for the voluntary adjustment of the dispute . The Sheet Metal Workers contends that there are two such methods , the National Joint Board and the Project Stabilization Agreement, and that each method has resulted in an award in its favor. Turning first to the National Joint Board, the evidence shows that the Sheet Metal Workers and the Carpenters are signatories to the National Joint Board Agreement, though the Carpenters is in noncompliance. Neither the Employer nor the general contractor, Morrison-Knudsen, or the Em- ployer's subsidiary, Audio Suttle, is a party to the National Joint Board Agreement. The Sheet Metal Workers nevertheless contends that the Employer has agreed to be bound by the National Joint Board award. It bases this contention ( 1) on the Audio Suttle contract with Morrison-Knudsen and (2) on an alleged representation by Morrison-Knudsen that it would be bound by National Joint Board awards. The Audio Suttle contract with Morrison -Knudsen provides that any requests for an extension of time based on a work stoppage or strike must be accompanied by a statement establishing the meas- ures taken by the contractor and all subcontractors to prevent the work stoppage or strike or to alleviate the situation after it occurred . It further provides that a delay caused by work stoppage or strike which is an unfair labor practice, and which the contractor could not reasonably prevent, can be excused only to the extent that it does not go beyond the point at which a reasonably diligent contractor could resume work by ending the stoppage through timely action under one or more of the following means as appropriate : (a) filing a charge with the Board; (b) recourse to the procedure of the Federal Mediation and Conciliation Service; (c) use of any National Joint Board for settlement of jurisdictional disputes or other private boards or organizations for, the settlement of disputes ; (d) use of the grievance procedure under individual collective-bargaining agreements; and (e) recourse to Federal and state courts to enforce the provision of collective -bargain- ing agreements , The Sheet Metal Workers contends that the reference to the use of Joint Board procedures in this clause binds the Employer to accept Joint Board awards . Neither of the parties to the contract, Morrison-Knudsen or Audio Suttle, read the contract as compelling Audio Suttle or its subcontractor to abide by Joint Board decisions.. The plain language of the contract would seem to support the latter interpretation as the Joint Board is listed as only one of the several alternatives offered to the Employer to avoid penalties for time loss due to work stoppage and the clause indicates that each of the procedures, including the Joint Board proce- dures, are to be used only as appropriate. As to the Sheet Metal Workers' alternative conten- tions with respect to the Joint Board , the evidence is somewhat conflicting. The Sheet Metal Workers contends that Morrison-Knudsen orally agreed to be bound by the Joint Board awards . It does not contend that the Employer was a party to such an agreement but contends that it is bound by the oral representation of the general contractor . The general contractor, on the other hand, states that the only statements it made were to the effect that it would voluntarily abide by Joint Board awards if the unions agreed between themselves to be bound by a Joint Board decision. There is no evidence to indicate that the subcontractors were aware of the oral representa- tions of the general contractor, whatever they may have been . Whatever representations Morrison- Knudsen may have made, there is no evidence that the oral representations were binding or were intended to be binding, on subcontractors. We find that there is not sufficient evidence to establish that the Employer is bound by the National Joint Board procedures . Therefore, we find that the National Joint Board procedures are not an agreed-upon voluntary method of settlement of the dispute in this case within the meaning of Section 10(k) of the Act. Next we must consider whether the procedures set forth in the Project Stabilization Agreement warrant our withholding a determination. As previously noted, the Employer and the general contractor sought to resolve the work dispute through the use of this procedure reaching the point where the dispute was submitted to the general presidents of the Carpenters and the Sheet Metal Workers. When an answer resolving the dispute was not forthcoming a resolution was passed during a meeting of the Department of Defense Labor Management Com- mittee on December 16, 1971, directing the Employer to comply with the National Joint Board award dated August 20, 1971 . Shortly thereafter, by letter dated December 20, 1971, the Sheet Metal Workers general president stated his view that the Sheet Metal Workers was not bound by the Project Stabilization Agreement. This view was apparently based on advice received from Barnes, Local 533's business representative at the site. The Sheet Metal Workers now contends that its general president was in error and that in fact the Sheet Metal Workers is a party to the Project Stabilization Agreement and that the Department of Defense Labor Management Com- mittee's determination represents a final determina- tion of the jurisdictional dispute . In support of this position, the Sheet Metal Workers points to its agreement with Singleton , a sheet metal subcontrac- tor at the site . That agreement provides that the 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relationship between Singleton and the Sheet Metal Workers is to be governed by the Project Stabiliza- tion Agreement. The Sheet Metal Workers contends that the agreement with Singleton binds it to the Project Stabilization Agreement. In further support of its position it points to the fact that it has participated in both the Standing Committee on Adjustment and the Department of Defense Labor Management Committee as evidence that it is a party to the Project Stabilization Agreement. It is clear that the Sheet Metal Workers is bound by this Project Stabilization Agreement with respect to its relationship with Singleton. However, this would not seem sufficient to bind the Sheet Metal Workers to the Project Stabilization Agreement with respect to its relationship with the Employer. This apparently was also the Sheet Metal Workers' view prior to the hearing in this case. Under these circumstances we find that the evidence does not establish that the Sheet Metal Workers is bound by the Project Stabilization Agreement with respect to its relationship with the Employer. Therefore, we find the procedure in the Project Stabilization Agreement is not a method for the voluntary settlement of this dispute within the meaning of Section 10(k) of the Act.5 E. Merits of the Disputes Section 10(k) of the Act requires the Board to make an affirmative award on disputed work after giving due consideration to and balancing all relevant factors .6 The following factors are relevant in making a determination of the dispute before us: 1. The Employer's assignment and past practices As stated the Employer assigned the disputed work to employees represented by the Carpenters in accordance with its longstanding past practice and its contract with the Carpenters. The Employer has stated that it prefers' an assignment of the work to the carpenters. This factor favors assignment of the work to employees represented by the Carpenters. 2. Qualifications to perform the work The evidence shows that employees represented by the Carpenters and employees represented by the Sheet Metal Workers possess the necessary qualifica- 5 In view of this finding, we do not find it necessary to determine whether, assuming all parties were bound, the procedures in the Project Stabilization Agreement constitute an agreed-upon method for the adjustment of the dispute within the meaning of Sec. 10(k) 6 International Association of Machinists, Lodge No 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402 tions to perform the disputed work satisfactorily. This factor favors neither party. 3. Industry practice The Sheet Metal Workers bases its claim to the disputed work primarily on its contention that the disputed work, although labeled as the installation of acoustical enclosures, in fact consists of installing air-handling units or plenums. It contends that the practice in the industry is to assign the work of installing such air-handling units to employees represented by the Sheet Metal Workers. The Employer and the Carpenters on the other hand contend that the disputed work is that of installing acoustical enclosures and that the practice in the industry is to award such work to employees represented by the Carpenters. Specifications for the job described the work as "acoustical enclosures for air-conditioning equip- ment in Missile Site Control Building." As noted in the specifications, these enclosures are described on some of the blueprints as "air handling unit enclo- sures." A close reading of the record makes it clear that these "enclosures" are rooms of relatively large size whose function is to serve both as acoustical enclosures and as air-handling units. It is not clear from the record that one of these functions predomi- nates over the other. While the record indicates that the industry practice as to each function is as contended by the parties, this, of course, is not particularly helpful when the structure performs both functions and neither function predominates over the other.? Under these circumstances we conclude that the industry practice favors neither party. 4. Contract Where the work is subject to competing jurisdic- tional claims because of its dual nature, one factor tends to favor the union whose claim the employer has agreed by contract to recognize. The Employer has an International agreement with the United Brotherhood of Carpenters and Joiners in which it agrees to recognize the jurisdictional claims of the Carpenters. As the Employer has agreed to recognize the jurisdictional claims of the Carpenters, and as the Employer has no such agreement with the Sheet Metal Workers, we find this factor favors an assignment of the work to employees represented by the Carpenters. 7 We note that the record indicates that at the nearby PAR (Perimeter Acquisition Radar) site, part of the overall site, employees represented by the Sheet Metal Workers are performing the job of installing rooms similar to those present here, the difference being that at the PAR site the acoustical function, though a factor, is relatively less important SHEET METAL WORKERS, LOCAL 553 191 5. Efficiency and economy of operations The evidence indicates that employees represented by each union can perform the work equally well and with equal safety. The record does show that employees represented by the Carpenters receive a wage rate which is approximately $1.60 per hour lower than that received by employees represented by the Sheet Metal Workers. This factor of economy of operations tends to favor an assignment of the work to the carpenters. 6. Joint Board determination Sheet Metal Workers contends that the National Joint Board determination favors an award of the disputed work to it. The Sheet Metal Workers presented evidence to the Joint Board showing that the practice in the industry was to assign the handling and installing of air-handling enclosures to employees represented by it. As previously indicated, the Carpenters, in noncompliance with the Board, did not participate in the National Joint Board procedure, nor did the Employer. The National Joint Board awarded the work to the Sheet Metal Workers on the basis of past practice. However, as noted before in our discussion of industry practice, the enclosures here are dual function enclosures. The award does not indicate that the dual function nature of the enclosures was considered when the Joint Board made the award. Although we have consid- ered National Joint Board awards a factor, we find that the award is not determinative of area or national practice as to a dual function structure of this type. CONCLUSION Upon the record as a whole and after full consideration of all relevant factors involved, we conclude that the employees represented by the Carpenters are entitled to the work in dispute. We base this conclusion upon the Employer's assignment of the work to employees represented by the Carpenters, the fact that this assignment is consistent with the Employer's past practice, its current bargaining agreement with the Carpenters, and its preference and the fact that such assignment will result in greater economy of operations. Accordingly, we shall determine the dispute before us by awarding the work in dispute at the MSR site in Nekoma, North Dakota, to employees represented by the Carpenters but not to that Union or its members. In consequence we also find that the Sheet Metal Workers is not entitled by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Employer to assign the disputed work to employees represented by it. The Employer requests that the Board's award be extended to cover work at other sites and points to the fact that it is the successful bidder at the ABM facility currently under construction in Great Falls, Montana. Although the Board need not restrict its award to a single job if there is evidence that similar disputes would occur elsewhere in the future, we conclude that a broad award is not clearly justified by the evidence herein. Thus, the record is not clear with respect to future operations of the Employer nor is it clear with respect to future activities of the parties involved. Therefore, we will limit our award to the project presently under consideration. 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 Dis- pute. 1. Employees of Ray Proof Corporation, who are represented by Local 2028, United Brotherhood of Carpenters and Joiners of America, are entitled to perform the work of installing acoustical enclosures at the missile control center located on the MSR (Missile Site Radar) site near Nekoma, North Dakota. 2. The Sheet Metal Workers International Associ- ation Local No. 553 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Ray Proof Corporation to assign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, the Sheet Metal Workers International Association Local No. 553 shall notify the Regional Director for Region 18, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by the Sheet Metal Workers, rather than to employees represented by the Carpenters.