Sheet Metal Workers, Local 41

SHEET METAL WORKERS, LOCAL 41 Sheet Metal Workers International Association, AFL-CIO, Local 41 and Eugene D. Perry d/b/a Perry Acoustics Companyand Indiana andKentuck- y District Council, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, and its affiliated Local 1155. Case 25-CD-130 November 14, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended following charges filed by Eugene D. Perry d/b/a Perry Acoustics Company, herein called the Employer, alleging that Sheet Metal Workers International Association, AFL-CIO, Local 41, herein called Sheet Metal Workers, had violated Section 8(b)(4)(D) of the Act. Pursuant to notice, a duly scheduled hearing was held in Indianapolis, Indiana, before Hearing Officer David R. Friedman on June 30, 1972. 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, the Employer filed a brief in support of its position. 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 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. Upon the entire record in this case, including the Employer's brief, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The Employer is a sole proprietor, doing business under the trade name of Perry Acoustics Company, with its place of business in Mooresville, Indiana. The Employer is engaged in the construction industry in the business of repairing and installing acoustical ceilings throughout the State of Indiana. During the past calendar year, a representative period, the Employer in the course and conduct of its business operation, purchased, transferred, and delivered from its place of business, goods and materials, valued in excess of $50,000, which were transported to said facility directly from States other than the State of Indiana. The parties stipulated, and we find, that Perry 200 NLRB No. 38 287 Acoustics Company is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Sheet Metal Workers and Indiana and Kentucky District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and its affiliated Local 1155, herein called Carpenters, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts On October 13, 1970, the Employer entered into a subcontract with Mid-Republic Construction, Inc., Indianapolis, Indiana, to install an acoustical tile and metal pan ceiling at the Columbus, Indiana, High School project. However, because the cost of the metal pan ceiling exceeded the budget, the Employer was asked to substitute in lieu thereof the Soundlock ceiling acoustical system. Construction of the entire high school project began in late 1970. On November 24, 1971, the Employer started work on its subcontract, and on March 16, 1972, the Employer made a written assignment of the disputed work to its own employ- ees, represented by Carpenters District Council of Central and Western Indiana. In late March 1972, Stephen R. Smoot, business representative of the Sheet Metal Workers, asked the Employer which labor organization was going to receive the assign- ment of installing the Soundlock ceiling acoustical system. When the Employer replied that it was going to award the work to the Carpenters, Smoot commented, "Don't you know that work belongs to us?" By letter dated March 29, 1972, Smoot advised the Employer that "I am notifying you that Sheet Metal Workers' Local #41 is disputing the work assignment on the [Columbus High School] project to the Carpenters." On May 10, 1972, Smoot again asked the Employer if it were planning to use carpenters on the project. When the Employer replied in the affirmative, explaining that it was putting up a "grid system" with the carpenters, Smoot protested, and said he "might have to put a picket on the job." On the morning of May 23, 1972, two pickets, representing the Sheet Metal Workers, appeared at the jobsite, displaying signs stating as follows: NOTICE TO THE PUBLIC Perry Acoustics Company is in non-compliance 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the decision from the National Joint Board on Soundlock Ceiling.... We do not tell any employees of Perry Acoustics or any other Employer to refrain from working in this project. On May 23, also, all other crafts employed on the project, including electricians, steamfitters, tileset- ters, etc., engaged in a 1-day work stoppage. Members of the Sheet Metal Workers, however, continued to picket until May 30, 1972. B. The Work in Dispute The work in dispute involves the handling and installation of Soundlock acoustical metal ceiling panels and Soundlock metal soffits panels, including complete grid systems in connection with the Perry Acoustics Company Columbus High School project at Columbus, Indiana. C. The Contentions of the Parties The Employer contends that the Board should sustain the Employer's award of the disputed work to its own employees represented by the Carpenters, relying on such factors as its personal preference, consideration of efficiency, economy, safety and skill, and the Employer's past practice and area practice. The Sheet Metal Workers contends that it is entitled to the disputed work on the basis of an award by the National Joint Board for Settlement of Jurisdictional Disputes and the fact that the ceiling panels to be installed are covered with metal. 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. The record shows that in late March 1972, Sheet Metal Workers claimed the work and advised the Employer that it was disputing the Employer's assignment to the Carpenters. Later, in early May when the Employer again advised Sheet Metal Workers that it planned on continuing its assignment to the Carpenters, Sheet Metal Workers Representa- tive Smoot threatened to picket. Uncontroverted testimony establishes that subsequently, from May 23 to 30, 1972, the Sheet Metal Workers picketed, and precipitated a 1-day work stoppage at the jobsite of the Employer's Columbus High School project, Columbus, Indiana. On these facts, we are satisfied that Sheet Metal Workers threatened to and did strike with an object of forcing assignment of the disputed work to members it represented, rather than to the Employer's employees represented by the Carpenters. Accordingly, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred, and that the dispute is properly before the Board for determination pursuant to Section 10(k) of the Act.' E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all factors. The following factors are relevant in making a determination of the dispute before us. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board as the collective- bargaining representative for a unit of the Employ- er's employees. The Employer does not have a collective-bargain- ing agreement with the Sheet Metal Workers. The Employer has a collective-bargaining agreement with the Carpenters District Council of Central and Western Indiana, but the geographical area covered by that agreement does not include Bartholomew County, where the Columbus, Indiana, High School project is located. 2. The Employer's assignment and past practice The Employer has been engaged in the installation of acoustical ceilings for 10 years. During that time, the Employer has used only carpenters to install acoustical ceilings with grid systems and this is so regardless of the composition of the panels ultimately installed in the grids. The Employer has, however, used sheetmetal workers to install two ceiling jobs, namely, at Mooresville High School and at Bain- bridge High School, but these jobs consisted of a metal pan "snap in" system installed without a grid system. With respect to the Soundlock ceiling system utilized in the instant case, the record shows that the Employer has performed five jobs installing Sound- lock ceilings where a grid system has been an integral part of the ceiling and, on each occasion, has used carpenters to perform the work.2 Under the foregoing circumstances, we find that the Employer has consistently maintained a practice 1 There was no specific contention nor was there evidence warranting a finding that the parties had agreed upon a method for voluntary settlement of the dispute. Cf. NLRB Rules and Regulations, Subpart F, Sec. 102.90. 2 It appears that on one job, which involved a "concealed" nongrid system, the Employer also utilized sheetmetal workers. SHEET METAL WORKERS, LOCAL 41 289 of assigning the disputed work to its own employees represented by the Carpenters. 3. Area practice The Carpenters business representative, Wendell Stapp, testified that in his 14 years' experience with the Carpenters, only carpenters have been used to install grid-type ceiling systems, as in the Soundlock system installed in the Columbus High School project. Other acoustical ceiling contractors in the area, such as Fannin and Johnson, Sanford Electric, and Commercial Floor and Acoustics, have installed ceiling systems with grids as part of the system, and have used carpenters to perform the work. Stephen B. Smoot, business representative of the Sheet Metal Workers, stated that area contractors Fannin and Johnson, and Sanford Electric, have contracts with the Sheet Metal Workers covering installation of "metal" ceilings; however, Smoot did not distinguish between "metal" ceilings with or without the grid systems, but explained that its claim to the disputed work was based entirely on the composition of the material of the panels. The record, viewed as a whole, supports the view that acoustical ceiling contractors, using the grid system, including the Soundlock system utilized in the instant case, employ carpenters to perform the disputed work. 4. Skills The Employer employs a nucleus of carpenters who travel with the Employer from job to job. The Employer has indicated that its carpenters serve an apprenticeship of at least 4 years before acquiring the expertise necessary to install a Soundlock acoustical ceiling system and, when each job 'is completed, it necessarily must be inspected by an architect, an inspector, and, where necessary, a school inspector. In installing a Soundlock ceiling system, complete with the grids and panels,3 the carpenters use such tools as a chalk box, hammer, nippers, metal masters, a water level, and a circular saw. The carpenters must also be adept in the use of a laser beam leveling device, which requires a period of special training. The sheetmetal workers claim that they possess the necessary skills to install acoustical systems utilizing metal pan panels, but the record is not clear as to whether the metal pan ceilings were with or without grid systems. In all the circumstances, including the fact that the carpenters are skilled in using the laser beam leveling device, with no corresponding showing of such skill on the part of the sheetmetal workers, we are persuaded that the factor of skill favors an award of the disputed work to the Employer's own employees represented by the Carpenters. 5. Efficiency and economy The Employer has stated that the carpenters have performed the disputed work in an efficient and economical way. Moreover, the Employer has indicated that if the sheetmetal workers were utilized in the Columbus High School project, it would be required to pay such employees travel pay from its home office in Mooresville, Indiana, to the Colum- bus, Indiana, jobsite. Additionally, the Employer states that in the ceiling installations of any kind the carpenters work more efficiently and faster than the sheetmetal workers. Under the foregoing circumstances, it appears that the assignment of the disputed work to the Employ- er's own employees, represented by the Carpenters, is clearly the most efficient and economical manner of operation. 6. Award of the National Joint Board On April 14, 1972, the National Joint Board for Settlement of Jurisdictional Disputes, Building and Construction Industry, awarded the work in dispute to the Sheet Metal Workers. This decision was predicated "on the basis of trade practice." However, the Employer was not a party to this proceeding and there has been no adequate showing that the Employer is bound to the National Joint Board procedures in regard to work at the Columbus High School project. Although the National Joint Board decision award- ing the disputed work to the Sheet Metal Workers may be a factor to be considered, it is not controlling since, as noted above, there is no showing that all of the parties have agreed to be bound thereby .4 Conclusion Upon the entire record in this case, and after full consideration of all relevant factors involved, we conclude that the Employer's employees, who are represented by the Carpenters, are entitled to perform the work in dispute. We reach this conclu- sion based on the Employer's past practice of assigning the disputed work to its employees; the assignment is consistent with the practice of area contractors; the Employer's employees possess skills to perform the work; and the fact that such assignment will result in greater efficiency and 3 There are two basic steps involved in the installation of Soundlock ceiling systems; namely, the suspension and installation of a grid system, and the installation of panels. 4 Sheet Metal Workers Union, AFL-CIO, Local No. 4 (Tennessee Acoustics, Inc), 194 NLRB No. 183. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD economy. We shall, therefore, determine the dispute before us by awarding the work in dispute at the Employer's Columbus High School project located in Columbus, Indiana, to those employees represented by the Carpenters, but not to that Union or its members. Accordingly, we find that 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.5 The Employer requests that a broad order is required in this case if future disputes are to be avoided. The record herein shows that the Employer has performed five jobs involving the installation of Soundlock grid systems, and that, apart from the instant dispute, the Sheet Metal Workers protested the Employer's assignment of the work in dispute only at the Bloomington Hospitaljob. Moreover, the record indicates that the protest at the Bloomington Hospital job did not occur until after the job was practically completed, and there is no indication that the Sheet Metal Workers took any overt action with respect thereto, such as picketing. Although the Board need not restrict its award to a single job if there is evidence showing a likelihood that similar disputes will occur in the future,6 we conclude that a broad award is not clearly justified by the evidence herein. Therefore, we shall 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 Eugene D. Perry d/b/a Perry Acoustics Company, who are represented by Carpen- ters District Council of Central and Western Indiana, are entitled to perform the work of handling and installing Soundlock acoustical metal ceiling panels and Soundlock metal soffits panels, including com- plete grid systems, in connection with the Perry Acoustics Company High School project at Colum- bus, Indiana. 2. Sheet Metal Workers International Associa- tion, AFL-CIO, Local 41, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Perry Acoustics Company to assign the above-described work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers International Association, AFL-CIO, Local 41, shall notify the Regional Director for Region 25, in writing, whether or not it will refrain from forcing or requiring Perry Acoustics Company, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work to its members, rather than to employees of Perry Acoustics Company, represented by Carpenters District Council of Central and Western Indiana. MEMBER FANNING, dissenting: As noted by the majority, the Employer's carpen- ters on the Columbus, Indiana, project are represent- ed by Carpenters District Council of Central and Western Indiana, with which the Employer has a collective-bargaining contract. That contract pro- vides specifically that all "jurisdictional disputes shall be handled in conformance with the procedures specified by the National Joint Board for the Settlement of Jurisdictional Disputes." On April 14, 1972, the Joint Board assigned the work in dispute to sheetmetal workers on the basis of trade practice. The claim of Local 41 of the Sheet Metal Workers is based upon this award. Local 1155, affiliated with the Carpenters District Council, the contractual union, takes no position with respect to the validity of the Joint Board's award. Although the Employer asserts that its contract with the District Council does not cover the Columbus area because that area is outside the territorial jurisdiction of the Council, there is no contention that the area is outside the jurisdiction of the Council's affiliated Local 1155 or that the terms of the contract are not in all other respects followed by the parties. In these circumstances I am of the opinion that the parties have an agreed-upon method for the resolu- tion of this dispute and I would quash the notice of hearing. 5 Local No 17, Sheet Metal Workers International Association, AFL-CIO Local No. 1, AFL-CIO (Lembke Construction Company of Colorado, Inc), (J Slotmk Company), 197 NLRB No. 169 6 Bricklayers, Masons and Plasterers' International Union of America, 194 NLRB No 98.