Sheet Metal Workers, Local No. 2

SHEET METAL WORKERS, LOCAL NO. 2 55 Sheet Metal Workers Local Union No. 2 and Bazil Hall d/b/a Hall Refrigeration Sales and Service and Operating Engineers, Local No. 6-6A-6B. Case 17-CD-165 March 1, 1973 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO purposes of this proceeding, we find that Hall is engaged in interstate 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. II. THE LABOR ORGANIZATION INVOLVED The Parties stipulated, and we find, that the Sheet Metal Workers and the Operating Engineers are labor organizations within the meaning of Section 2(5) of the Act. This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Bazil Hall d/b/a Hall Refrigera- tion Sales and Service, herein called Hall, on November 13, 1972, alleging that Sheet Metal Workers Local Union No. 2, herein called Sheet Metal Workers, had violated Section 8(b)(4)(D) of the Act by threatening, coercing, and restraining Hall with an object of forcing Hall to assign certain work to employees represented by the Sheet Metal Workers rather than to employees represented by Operating Engineers, Local No. 6-6A-6B, herein called Operating Engineers. Pursuant to notice, a hearing was held before Hearing Officer John P. Hurley on December 4, 1972. The Sheet Metal Workers, Hall, and the Operating Engineers 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. No briefs have been filed. 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. The Board has considered the entire record in this proceeding and makes the following findings: 1. THE BUSINESS OF THE COMPANY Hall is a sole proprietorship engaged in the building and construction industry as an air-condi- tioning and refrigeration contractor operating from a facility located at 7420 Prospect, Kansas City, Missouri. In the course and conduct of his business, Hall annually purchases materials valued in excess of $50,000 directly from sources outside the State of Missouri, and he annually performs services or sells goods valued in excess of $50,000 directly to customers located outside the State of Missouri. In accord with the stipulation of the parties for the 202 NLRB No. 28 III. THE DISPUTE A. Background Hall contracted with the Crown Center Hotel project on June 15, 1972, to perform the work of installing 20 walk-in freezers and coolers and the refrigeration' equipment therein. Hall commenced working on the job in late October 1972 using his employees who were represented by the Operating Engineers. About 10 o'clock on the morning of November 1, 1972, Hall received a phone call from George Schmidt, a business representative of the Sheet Metal Workers. Schmidt said that he believed the work being performed by Hall's employees belonged to members of the Sheet Metal Workers and he wanted time to try and work out a solution to the problem. He asked if Hall would take his employees off the job for the day. Hall, as a personal favor to Schmidt, whom he had known for 20 years, complied with the request. The following morning, November 2, 1972, Hall sent his employees back to work at the Crown Center project. Schmidt met in his office with George Collins, business representative of the Operating Engineers, that same morning in an attempt to resolve the dispute. They telephoned Hall at approxi- mately 10 a.m. Schmidt stated his demand that the work be assigned to employees represented by the Sheet Metal Workers, specifying that he was claim- ing only the erection of the walk-in coolers and freezers. Hall proposed that they settle the dispute by using a composite crew on the erection work. Schmidt replied that he could not agree unless a composite crew would also be used on the work of installing the refrigeration equipment and that Hall would sign an agreement with the Sheet Metal Workers. Hall refused. According to Hall, Schmidt said he would close the job down, throw up a picket, and see that Hall did not get any more work from the kitchen equipment companies, with which Hall had contracted for this type of work. Hall asked if this was a threat, and Schmidt replied that it was not but 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Hall could take it any way he wanted to. Schmidt denied making any threatening remarks to Hall in this phone conversation . Collins could not recall Schmidt making any remark about closing down the job and picketing , but he did recall Schmidt's remark about the kitchen equipment companies and Hall's asking if it was a threat. Collins also testified that after the telephone conver- sation Schmidt told him that the Sheet Metal Workers would picket and close down the job. On November 3, 1972, Hall was told by a Crown Center representative to take his employees off the job because the latter feared a strike at the project by the Sheet Metal Workers if Hall continued working. Hall withdrew from the job , but returned to work at the project on November 27, 1972, and was continu- ing to work there at the time of the hearing. There was no picketing at the project in relation to this dispute. B. Work in Dispute The disputed work consists of the erection of prefabricated walk-in coolers and walk-in freezers at the Crown Center Hotel project located at Main Street and Pershing Road, Kansas City, Missouri. The work in dispute does not include the installation of refrigeration equipment . When Hall proposed using a composite crew on the erection work, Schmidt responded that he wanted a composite crew on the refrigeration work as well. However, it is apparent from the record that Schmidt, in effect, was merely asserting his claim for all the erection work. At the hearing the Sheet Metal Workers contended that it did not claim the installation of the refrigera- tion equipment in the coolers and freezers. C. Contentions of the Parties Although no briefs were filed, the Sheet Metal Workers presented evidence at the hearing that its members had erected virtually identical coolers and freezers, that industry practice in the area has been to use sheetmetal workers for this type of work, and that sheetmetal workers possess special skills neces- sary for correcting defects, modifying prefabricated parts, and doing finishing work. Hall presented evidence that it assigned the work in accord with its collective-bargaining agreement with the Operating Engineers, that the Operating Engi- neers is the certified representative of its employees, that the erection of coolers and freezers involves skill possessed by its employees since erection of coolers and freezers often involves simultaneous installation i N L R B v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia of refrigeration equipment, and that the assignment is consistent with its longstanding practice. The Operating Engineers contentions appear to be the same as Hall's. 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 voluntary adjustment of the dispute. As to the latter, the record does not show the existence of any private means of adjusting the dispute, and efforts between the representatives of the two locals to resolve the dispute were unsuccessful. As indicated above, the Sheet Metal Workers representative demanded that the work in dispute be assigned to employees represented by the Sheet Metal Workers rather than to Hall's employees, who were represented by the Operating Engineers. Al- though a mere demand for the reassignment of work is not unlawful, it may become so if accompanied by threats, picketing, work stoppages, or other coercion. The record herein contains evidence that the Sheet Metal Workers representative threatened to picket, to close down the job, and to see that Hall would get no more business from certain contractors. Accord- ingly, and without ruling on the credibility of the testimony in issue, we are satisfied 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 us for determination. 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 various relevant factors.' 1. Collective-bargaining agreements The Sheet Metal Workers introduced no collective- bargaining agreements. However, it did introduce into the record a copy of its constitution which contains a trade jurisdiction clause purporting to cover the type of work in dispute. On the other hand, Hall, through membership in the Heating and Cooling Contractors Association, is party to a collective-bargaining agreement with the Operating Engineers. The contract introduced into evidence expired on June 1, 1972. Apparently, a new agree- ment had been reached but not yet executed, and Hall and other members of the Association had been Broadcasting System]. 364 U S 573 SHEET METAL WORKERS, LOCAL NO. 2 57 applying the terms of the old contract since June 1, 1972, by an oral understanding with the Union. The recognition clause of that contract reads in pertinent part: The Company recognizes the Union as the sole collective bargaining agency for all its employees engaged in new construction, repair and mainte- nance of refrigeration . . . units or appli- ances. . . . On March 19, 1956, the Operating Engineers was certified by the Board as the exclusive bargaining representative of all service and installation engineers employed by members of the Heating and Cooling Contractors Association, of which Hall was then and is now a member (Case 17-RC-2006). Since the Operating Engineers is the certified representative of Hall's employees and Hall, by virtue of its contract with the Operating Engineers, has assigned the work in dispute to its employees, we find that these factors favor our awarding the work in question to engi- neers. 2. Employer, area, and industry practice Evidence introduced at the hearing concerning area and industry practice is inconclusive as the record indicates the use of employees represented by both the Operating Engineers and Sheet Metal Workers, as well as other crafts, to perform work similar to that in dispute. Although there is evidence that the erection of nonprefabricated metal coolers has traditionally been performed by sheetmetal workers, there is also evidence that Hall has been using engineers to erect prefabricated coolers and freezers for 20 years. Hall's assignment of the disputed work is in accord with its longstanding practice and favors awarding the work to engineers. 3. Skills and efficiency of operation The record shows that significant skills are required to erect prefabricated coolers and freezers. The Sheet Metal Workers introduced evidence to show that its apprenticeship program covered the erection of prefabricated coolers and freezers and that special skills possessed by its members were necessary. Occasionally the prefabricated panels will be the wrong size and need to be cut, changes will have to be made to accomodate certain obstacles such as beams, or modifications will have to be made for special uses. Furthermore, sheetmetal workers can perform finishing work, i.e., construction of metal panels to fit from the top of a cooler to the ceiling of the room. Hall presented testimony that in some instances the refrigeration system would have to be erected simultaneously with a prefabricated box. Hall has been in business for 20 years using operating engineers and guarantees his work. In the event that a panel is the incorrect size Hall orders a replacement from the manufacturer. Hall's employees do not do the finishing work, and if a contract includes it, Hall subcontracts the work out. Although relative skills appear to be a neutral factor, certain facts show that efficiency of operation favors awarding the work in dispute to employees represented by the operating engineers. In this regard, the contract for the work giving rise to the dispute does not include finishing, and Hall, by using his own employees, avoids fragmentizing the work and achieves a greater efficiency of operation. Conclusions Upon the entire record, and after full consideration of all relevant factors here involved, we believe that employees represented by the Operating Engineers are entitled to perform the work in dispute. This award is supported especially by Hall's assignment of the work to its employees represented by the Operating Engineers, the fact that such assignment is consistent with Hall's past practice and collective- bargaining relationship, and the fact that the Operat- ing Engineers is the certified bargaining agent for Hall's employees. In addition, efficiency of operation tends to favor such award. In making this award, we are assigning the work to employees represented by the Operating Engineers rather than to that organiza- tion itself or its members. Our present determination is limited to the particular dispute which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on 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 represented by Operating Engi- neers, Local No. 6-6A-6B, are entitled to perform the work of erecting prefabricated walk-in coolers and freezers at the Crown Center Hotel project at Main Street and Pershing Road, Kansas City, Missouri. 2. Sheet Metal Workers Local Union No. 2 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Bazil Hall d/b/a Hall Refrigeration Sales and Service to assign the above work to its members or employees whom it repre- sents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 2 shall notify the Regional Director Section 8(b)(4)(D) of the Act, to assign the work in for Region 17, in writing, whether it will refrain from dispute in a manner inconsistent with the above forcing or requiring Bazil Hall d/b/a Hall Refrigera- determination. tion Sales and Service, by means proscribed by