Sheet Metal Workers Intl. Assn. Local 18

470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers International Association, Local Union No. 18 and Circle T Construction, Inc. and Carpenters District Council of North Central Texas of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Representing Carpenter Local Unions No . 198, 1526 and 1822. Case 16-CD-109 March 7, 1974 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Circle T Construction, Inc., herein called Employer, alleging a violation of Section 8(b)(4)(D) of the Act by Sheet Metal Workers International Association, Local Union No. 18, herein called Sheet Metal Workers. Pursuant to a notice, a hearing was held on June 21, July 30 and 31, and August 1, 1973, in Fort Worth, Texas, before Hearing Officer Evert P. Rhea. The Employer, the Sheet Metal Workers, and Carpenters District Council of North Central Texas of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, representing Carpenters Local Unions No. 198, 1526 and 1822, herein called Carpenters, appeared at the hearing and were all afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. 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 basis of the entire record I in this case, the Board makes the following findings: 1. THE BUSINESS ON THE COMPANY The parties stipulated, and we find, that the Employer, a Texas corporation engaged in the business of acoustical and drywall ceiling work i The postheanng request of Sheet Metal Workers to admit evidence of the August 16. 1973, decision of the Appeals Board of the Plan for Settlement of Jurisdictional Disputes Building and Construction industry is hereby granted and the decision is hereby made part of the record herein. 2 Commencing with November 1972, the Employer performed over $500,000 worth of business per year in the construction industry and annually purchased in excess of $50,000 worth of goods and materials from across state lines 3 The Sheet Metal Workers contends that a prior settlement of a dispute generally described as wall and ceiling construction, is an employer within the meaning of Section 2(2) of the Act.2 II. THE LABOR ORGANIZATIONS The parties stipulated, and we find, that the Sheet Metal Workers and the Carpenters are labor organi- zations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The site of the instant dispute is the Dallas-Fort Worth Airport which is presently under construction. The Employer is performing the ceiling installation work on Terminal 2W under a subcontract with the Mayes Company. Mayes is the prime contractor for the completion of work on Terminal 2W according to the specifications of Braniff International, which will occupy this terminal. The Employer is a member of the North Texas Contractors Association, which has a contract with the Carpenters. Fifty carpenters have been employed on Terminal 2W and the Employer has assigned the disputed work to the Carpenters, as is its usual practice. There are three other terminals where metal pan ceilings are presently being installed. At two of these terminals employees represented by the Car- penters are performing this work, while work on the third is being performed by sheetmetal workers. There is no agreed-upon method for settling jurisdictional disputes by which all parties are bound3 and there are no outstanding Board certifica- tions which apply to any of the work involved herein. B. The Work in Dispute This dispute concerns the assignment of the work involved in the installation of metal pan ceilings. The work involves attachment of T bars to channels which are hung by hangers from the concrete ceiling. The T bars are attached by means of a metal clip. The work also involves the sizing and insertion of the metal pans into the T bars. C. Contentions of the Parties The Carpenters and the Sheet Metal Workers filed briefs in this case, while the Employer submitted over similar work at the same terminal between it and Acoustics By Boggs, another ceiling subcontractor, is applicable and controlling of this dispute As we find the record herein insufficient to establish any relationship between the Employer and Boggs, we find the prior settlement inapplicable to this dispute. Furthermore, the collective-bargaining agreement between the Employer and the Carpenters provides that all jurisdictional disputes "shall be decided by the Employer filing a petition with the National Labor Relations Board and the Employer seeking a determination pursuant to Section 10(k) of the National Labor Relations Act, as amended." 209 NLRB No. 75 SHEET METAL WORKERS INTL. ASSN. LOCAL 18 final argument at the hearing in lieu of a brief in which it adopted primarily the claims made by the Carpenters. The Employer assigned the work in dispute to employees represented by the Carpenters and favors that assignment rather than one to members of the Sheet Metal Workers. The Employer submitted testimony that it considers the carpenters more efficient and skillful in the performance of the disputed work and that it believes that assignment of this work to sheetmetal workers would complicate its performance of its contract with Mayes. The Carpenters claims that the Employer's assign- ment of the disputed work to employees which it represents is a proper assignment and that the Carpenters can provide a sufficient number of skilled craftsmen in the Dallas-Fort Worth area for this installation work, whereas Sheet Metal Workers does not have this capability. The Carpenters further contends that factors such as skill, economy of operation, and past practice, as well as its collective- bargaining agreement with the Employer, favor assignment of the disputed work to employees which it represents. Besides claiming the disputed work by virtue of its prior dispute and settlement with Acoustics By Boggs,4 Sheet Metal Workers also contends that factors such as several awards by the National Joint Board for the Adjustment of Jurisdictional Disputes, area practice, and its constitution favor awarding the disputed work to employees which it represents. D. Applicability of the Statute The record herein shows that, in May 1973, then business agent for the Sheet Metal Workers, Gorden Price, made a telephone request of the Mayes Company for the disputed work. An executive of Mayes told him that his craft would not be able to obtain the work. Price knew, in January 1973, that the Employer was low bidder with Mayes and that it would use carpenters to do the work. Price respond- ed by asking where the pickets should be placed if the Carpenters was given the work. Picketing was commenced by the Sheet Metal Workers on June 4, 1973. The picketing was directed at Circle T Construction Company, Inc. The reason given was that the Company did not have a contract with the Sheet Metal Workers. The charges herein were filed on June 4, 1973, and the picketing ceased 3 days thereafter. The picketing was honored by members of the Plumbers and Electricians working on the construction project. 4 See In. 3, supra. e N L R B v Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFl-CIO [Columbia 471 We find, therefore, based on the above 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 under 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 disputed work after taking into account the evidence supporting the claims of the parties and balancing all relevant factors.5 We shall set forth below those factors which we find relevant in determining the dispute herein. 1. Collective-bargaining agreements The Employer entered into a collective-bargaining agreement with the Carpenters on March 5, 1973, which explicitly provides that the Carpenters work jurisdiction includes "the installation of all types of metal ceilings." The Employer has no collective-bargaining agree- ments with the Sheet Metal Workers and the record does not support the contention of the Sheet Metal Workers that the Employer's agreement with the Carpenters was improperly entered into. We thus find this factor favors awarding the disputed work to employees represented by the Carpenters. 2. Skill and training While the record shows that both groups of employees have performed the work in dispute in the past, it also shows that the Carpenters has both an on-the-job training program for this work and a 4- year classroom training program wherein its mem- bers receive specific training in the installation of all types of ceilings including metal pan. The Sheet Metal Workers provides only on-the-job training. The record also contains testimony that on occasions in the past other contractors have run into extraordi- nary cost overruns installing metal pan ceilings due to the inefficiency of sheetmetal workers' perform- ance of the work in dispute. We find therefore that factors of skill and training militate in favor of awarding the disputed work to employees represented by the Carpenters. 3. Employer's past practice Although the Sheet Metal Workers correctly points out that the Employer has never installed metal pan ceilings prior to this job, it has always employed Broadcasting System], 364 U.S. 573; International Association of Machinists, Lodge No 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402.1410-11. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD carpenters in the past to perform its other types of ceiling work. . We find therefore that this factor favors awarding the disputed work to employees represented by the Carpenters. 4. Area practice The record contains evidence that both crafts have done the disputed work in the relevant area. In fact, both are currently involved in performing the disputed work at different terminals of this same airport. We find therefore that this factor favors neither the Carpenters nor the Sheet Metal Workers. 5. Awards of Joint Boards Sheet Metal Workers has submitted several awards from the National Joint Board granting work in similar situations to employees it represents. The Carpenters has challenged the validity of the awards from the Joint Board, on grounds that those awards were based on its being in noncompliance and not on any relevant factors insofar as this Board's determi- nation is concerned. As noted supra, the only award, involving somewhat similar work, from the new Impartial Jurisdictional Disputes Board for the Construction Industry has been decided on appeal in favor of the Sheet Metal Workers after the Disputes Board had first awarded the work to the Carpenters. We thus find this factor favors awarding the disputed work to employees represented by the Sheet Metal Workers, but do not find it controlling. 6. Extent of award The Carpenters and the Employer are seeking a broad order extending the award to future buildings at the airport jobsite. The Sheet Metal Workers opposes such an award. Inasmuch as none of the witnesses for the Employ- er or any other interested party were able to testify that they might be involved in providing the same work on additional terminals, we will limit the award herein to the dispute over the work at Terminal 2W. Conclusion Upon consideration of all pertinent factors in the entire record, we conclude that the work in dispute involves the installation of metal pan ceilings for Terminal 2W of the Dallas-Fort Worth Airport, and such work should be assigned to the employees represented by the Carpenters rather than those represented by the Sheet Metal Workers. We reach the conclusion relying on the Employer's assignment, the collective-bargaining agreement between the Employer and the Carpenters, and the Employer's past practice, as well as the skill and training of the employees involved. Accordingly, we shall award the disputed work to those employees who are represented by the Carpen- ters, but not to that Union 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 upon the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following determination of dispute: 1. Employees of Circle T Construction, Inc., Dallas, Texas, currently represented by Carpenters District Council of North Central Texas of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, representing Carpenter Local Unions No. 198, 1526 and 1822, are entitled to perform the work of installing the metal pan ceilings on Terminal 2W of the Dallas-Fort Worth Airport. 2. Sheet Metal Workers International Associa- tion, Local Union No. 18, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Circle T Construction, Inc., to assign the above work to sheetmetal workers represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Workers International Association, Local Union No. 18, shall notify the Regional Director for Region 16, in writing, whether or not it will refrain from forcing or requiring Circle T Construction, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute in a manner inconsistent with the above determination.