Sheet Metal Workers Local Union No. 359

SHEET METAL WORKERS LOCAL UNION NO. 359 987 Sheet Metal Workers Local Union No. 359, affiliated with Sheet Metal Workers' International Associa- tion, AFL-CIO' and ELT Piping and United As- sociation of 'Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local No. 469 , AFL-CIO.2 Case 28-CD-152 gross volume of business in excess of $500,000. Accord- ingly, we find, as the parties have stipulated, 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. May 15, 1975 DECISION AND ORDER QUASHING NOTICE OF HEARING- This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by ELT Piping (herein called the Em-' ployer), on January 23, 1974, alleging that Local 359 had violated, Section 8(b)(4)(D) of the Act by engaging in certain proscribed activities with an object of forcing the Employer to assign certain work to employees represented by Local 359, rather than to a composite crew made up of employees represented by both Local 359 and Local 469. Pursuant to notice, a hearing was held before Hear- ing Officer Samuel Slaff on September 4, 5, and 27, 1974. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues. Thereafter, a brief was filed for the Employer and Local 469, and a brief was filed by Local 359. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed.' The Board has considered the briefs and the entire record in this case and hereby makes the following findings: I THE BUSINESS OF THE EMPLOYER The Employer is an Arizona corporation engaged as a mechanical contractor performing plumbing, heat- ing, air-conditioning, sheet metal, and millwright work. The parties stipulated that during the representative 12-month period immediately before the hearing the Employer purchased goods and materials valued in ex- cess of $50,000 directly from sources outside the State of Arizona and had delivered to it within the State of Arizona goods and materials in excess of the value of $50,000. During the same period, the Employer had a 1 Herein called Local 359 2 Herein called Local 469 3 Subsequent to the hearing Local 359 submitted a motion to file affidavit and supplemental memorandum and the Employer and Local 469 filed a response thereto. In view of our disposition of the case, we find it unneces- sary to pass on the motion. II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 359 and Local 469 are labor organizations within the mean- ing of Section 2(5) of the Act. III THE DISPUTE A. The Work in Dispute The work in dispute consists of the handling, distri- bution, and installation of work referred to by the Em- ployer as terminal reheat units and referred to by Local 359 as mixing boxes at the Arizona Highway Depart- ment Office Building at 17th Avenue and Johnson Street in Phoenix, Arizona. B. Background and Facts of the Dispute On July 24, 1972, the Employer contracted with the general contractor, Johnson & Son Building Co., to install all heating, ventilating, air-conditioning, and sheet metal work at the Arizona Highway Department Office building jobsite. The Employer had contracts with both Local 359 and Local 469. The installation assignment for the terminal reheat units or mixing boxes was originally demanded by both Locals 359 and 469 on a mutually exclusive basis. Edwin Titterington, the Employer's president, testified that he had a meet- ing with Local 359 Business Agent Jack Stewart in early 1973, at which Stewart claimed all of the installa- tion work. Titterington stated that he told Stewart that if neither of the local unions nor the internationals would resolve the jurisdictional problem, "I may elect to have them shipped separately." Contrary to Titter- ington, Stewart recalled that Titterington at this meet- ing assured him that in the event that the two interna- tionals could not get together he would assign the boxes to Local 359, order the coils separately, and hang them that way. On July 5, 1973, the Employer made a written as- signment of the disputed work to sheet metal workers and pipefitters `on a composite crew basis. Thereafter, the composite crew arrangement was carried out by employees represented by each Union installing all of the terminal reheat units or mixing boxes on. each alter- nate floor of the Arizona Highway Department Office Building. 217 NLRB No. 164 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Subsequent to the written assignment of the disputed work, Bill Miller, Local 359's business manager, told Titterington that ELT "did wrong on the assignment and that he would take [him] to the Joint Adjustment Board." The Joint Adjustment Board is -a local board and is part of the grievance procedure set up in the collective-bargaining between ELT and Local 359. On October 1, 1973, Local 359's business representative, Richard Baehra, filed a written complaint against the Employer with the Phoenix Sheet Metal Joint Adjust- ment Board for allegedly violating its contract with Local 359 by its assignment of the disputed work. The Board is composed of an equal number of union and employer representatives. On November 14, 1973, a hearing on the matter was held by the Phoenix Sheet Metal Joint Adjustment Board. Titterington was present for the Employer and Baehra and Stewart represented Local 359. By a unani- mous decision, the board found that the composite crew assignment violated the contract between the Em- ployer and Local 359. The board assessed the Employer damages of $800, of which $400 was to be paid immedi- ately into the Phoenix Sheet Metal Joint Apprentice- ship Committee and $400 was to be suspended for 2 years if no further violation was incurred during the next 2 years. The damage award was never paid by the Employer and Local 359 instituted a pending Section 301 suit in Federal district court to enforce the award. Thereafter, when the Employer refused to comply with the award, William Miller, Local 359's business manager, wrote to David S. Turner, general secretary- treasurer of Sheet Metal Workers International As- sociation and secretary of the National Joint Adjust- ment Board for the Sheet Metal Industry (NJAB), an arbitration tribunal on the national level composed of an equal number of employer and union representa- tives, asked the tribunal to cancel the agreement be- tween the Employer and Local 359 because of the for- mer's noncompliance with the local board's award. On February 6, 1974, in a decision addressed to the Employer and Local 359, NJAB stated that the con- tract "is cancelled effective 30 days following the re- ceipt of this decision" unless the Employer paid the assessed damage within 30 days. At this time, the Em- ployer had contracts involving sheet metal work which it subsequently decided not to perform. Titterington wrote to Pacific Construction Co., which had ap- proached the Employer for price quotations for a job, that the Employer had been "threatened with a shut- down by the Sheet Metal Workers which would render it impossible for [the Employer] to fullfil [sic] contrac- tual obligations." At the hearing, Titterington testified that "when they decided to pull my agreement," he considered that tantamount to a threat of shutdown. Titterington stated that sheet metal workers in his em- ploy worked until they were terminated by the Employer or left for lack of work. Local 359 business agents Stewart and Baehra testi- fied they made specific appeals to sheet metal workers to prevent the men from leaving the job in protest against the composite crew work assignment. After the_ February 6, 1974, decision of the NJAB, Local 359 made no attempt to contact the Employer. On June 24, 1974, Local 359 signed a National Labor Relations Board settlement agreement in Case 28-CE-16, pursu- ant to which it agreed that the NJAB cancellation deci- sion of February 6, 1974, would not be implemented and that its contract with the Employer would be con- tinued in full force and effect. C. Contentions of the Parties While the Employer, Local 469, and Local 359 all contend that a 1956 interim agreement between the two internationals of the local unions herein governs the dispute, they differ as to their interpretation of that agreement, and, therefore, as to how the work should be divided. Local 469 and the Employer claim that according to the agreement the work should be awarded to a composite crew of 50 percent sheet metal workers and 50 percent pipefitters . Local 359 contends that the agreement clearly establishes that the work should be awarded exclusively to employees repre- sented by it. The Employer and Local 469 maintain that the factors of economy and efficiency of installa- tion support a composite crew assignment and that area practice is inconclusive. Local 359 maintains that area practice preponderates in favor of the sheet metal workers having the exclusive rights to the disputed work, and disagrees that there would be any economic, mechanical, or practical advantages in utilizing a com- posite crew. Local 359 asserts that in any event the Employer's discontinuance of the sheet metal work phase of its business makes the issuance of a work assignment determination unnecessary. Finally, Local 359 contends that there is no reason- able cause to believe that it violated Section 8(b)(4)(D) of the Act as the only way it sought to enforce its claim to the work assignment in dispute was by resort to the contractual grievance procedure in its contract with the Employer, and that all parties have agreed to be bound by a determination of the new Impartial Jurisdictional Disputes Board. The Employer and Local 469 assert that reasonable cause does exist and that there is no voluntary method of adjustment to which all the par- ties have agreed to be bound. D. Applicability of the Statute Before the Board may proceed to a determination of the dispute pursuant to Section 10(k) of the Act, it must SHEET METAL WORKERS LOCAL UNION NO. 359 be satisfied that (1) the parties have not agreed upon a method for the voluntary adjustment of the dispute, and (2) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. With respect to the issue of a voluntary method for the adjustment of the dispute, we find for the reasons stated below that an agreed-upon method exists inas- much as all parties to the instant dispute are required to submit their jurisdictional disputes to the new Im- partial Jurisdictional Disputes Board for determina- tion. The current collective-bargaining agreement be- tween Local 469 and the Plumbing and Air Condition- ing Contractors of Arizona , with which the Employer is affiliated, was executed on June 1, 1972 . That con- tract provides that jurisdictional disputes are to be gov- erned as follows: Subject to the limitations of paragraph "B-6" above, in the event a jurisdictional dispute cannot be settled between the unions involved, then it is hereby agreed that such plan for settlement of jurisdictional disputes as is or may be adopted by the American Federation of Labor, Building and Construction Trades Department, shall be used. The new Impartial Jurisdictional Disputes Board came into being on June 1, 1973 . Hence the contract lan- guage in the current agreement must be construed to refer to the new board or its successors. In addition, the new plan for the settlement of juris- dictional disputes in the construction industry was ex- ecuted by and between the Building and Construction Trades Department, AFL-CIO, and a number of em- ployer associations, including the Sheet Metal & Air Conditioning Contractors National Association (SMACNA). SMACNA as an employer association participating in the plan executed a stipulation in ac- cordance with the "recommended form" under the pro- cedural rules and regulations of the Impartial Jurisdic- tional Disputes Board by which it bound not only the national association , but also its member chapters, "by the terms and provisions of the agreement estab- lishing the Impartial Jurisdictional Disputes Board." This stipulation provided also that it "shall run for the term of the agreement and shall continue in effect for each year thereafter unless specifically terminated effected upon the anniversary date of said agreement. ... " The, authority of SMACNA to bind its various affiliated chapters, such as the Air Conditioning Con- tractors of Arizona, the bargaining agent for the Em- ployer, is contained in section 14 of the SMACNA con- stitution and bylaws which states as follows: Each Chapter and individual member shall be stipulated to any national plan for settlement of 989 jurisdictional disputes established for the benefit of the construction industry when said plan is ap- proved by the Board of directors, or the Executive Committee, acting on behalf of the Board. Under the new plan, the obligations of an employer are spelled out as follows: Each Employer or Employer Association stipu- lated to this plan agrees that all cases, disputes or controversies involving jurisdictional disputes or assignments of work arising under this Agreement shall be resolved as provided herein and shall com- ply with the decisions and awards of the Board, Appeals Board or Hearing Panels established here- under. A jurisdictional dispute is defined as a dispute between unions over the assignment of work and in which the Employer has an interest. Both Sheet Metal Workers International Association and the United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, with which Local 359 and 469 are respectively affiliated, are members of the Building and Construction Trades Department, AFL-CIO, and as such are parties to the plan and subject to thejurisdiction of the new Impartial Jurisdic- tional Disputes Board created pursuant to the plan. Article X of the constitution of the Building and Construction Trades Department provides: All jurisdictional disputes between or among af- filiated National and International Unions and their affiliated Local Unions and employers shall be settled and adjusted according to the present plan established by the Building and Construction Trades Department, or any other plan or method of procedure adopted in the future by the Depart- ment for the settlement of jurisdictional disputes. Said present plan or any other plan adopted in the future shall be recognized as final and binding upon the Department and upon all affiliated Na- tional or International Unions and their affiliated Local Unions. Local 469 and the Employer rely on testimony of the chief international representative for the Sheet Metal Workers International Association , to the effect that despite the aforementioned language of article X, the international unions involved had, until May 1, 1974, determined not to use the new Impartial Jurisdictional Disputes Board in order to resolve jurisdictional dis- putes existing between them . Despite any alleged pri- vate agreement between the two competing Unions, we conclude that article X must control so long as the two Unions involved are members of the Building and Con- struction Trades Department, and that the Unions were required to submit jurisdictional disputes such as 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the present one to the new Impartial Jurisdictional Dis- putes Board. In view of the foregoing, we fmd that all parties have agreed to be bound by a determination of the new Impartial Jurisdictional Disputes Board.' Accord- ingly, we shall quash the notice of hearing issued herein. ORDER It is hereby ordered that the notice of hearing issued in this proceeding be, and it hereby is, quashed. MEMBERS JENKINS AND KENNEDY, dissenting: We disagree with the finding of our colleagues that all parties have agreed to be bound by a determination of the new Impartial Jurisdictional Disputes Board (heareafter IJDB). Accordingly, we would issue a deci- sion to resolve the jurisdictional dispute which is now pending before this Board. Section 10(k) provides that whenever an 8(b)(4)(D) charge is filed this Board is empowered and directed to determine the underlying dispute unless the parties can show that they have "adjusted, or agreed upon methods for the voluntary adjustment of, the dispute." (Empha- sis supplied.) There is no evidence in this record which indicates that the parties have voluntarily submitted, or agreed to submit, the instant dispute to the new IJDB. Indeed, the evidence is to the contrary. At the time the work assignment giving rise to this dispute was made, the two international labor organizations involved had agreed not to utilize the new IJDB to resolve their differences. The new IJDB was inaugurated on June 1, 1973, through an agreement executed between the Building and Construction Trades Department, AFL-CIO, and a number of employer associations . The work assign- ment now in dispute was made approximately 1 month later on July 5 , 1973. That the two international unions involved herein were not utilizing the IJDB in July 1973 is clearly established through the testimony, of Respondent's own chief international representative and head of its jurisdictional department, George Dowler.5 On direct examination, Dowler testified as follows: 4 In view of this finding, we find it unnecessary to pass on whether there was reasonable cause to believe that Sec . 8(b)(4)(D) has been violated 5 As head of the jurisdictional department , it is Dowler's responsibility to present cases to the IJDB on behalf of Respondent. Q. And to your knowledge, are disputes involv- ing those two trades (Sheet Metal Workers and Pipe Fitters) handled before the Impartial Dis- putes Board at the present time? A. They are at the present time. Hearing Officer : You emphasize "at the present time," Mr. Dowler. At what point, back, were they not so handled? The, Witness: Prior to May 1st of this year (1974). Hearing Officer : Very well. Q. What was the case then. Mr. Dowler? A. There was an agreement between the two Internationals that we did not use the procedures of the Dispute Board. The May 1, 1974, date referred to by Dowler is crucial. For it was on that date that the two interna- tionals agreed that for a period of 6 months thereafter they would utilize the IJDB . The agreement reads in pertinent part as follows: For an interim period of six months, beginning May 1, 1974, it is agreed by all parties that any jurisdictional dispute between the two trades (Sheet Metal Workers and Pipe Fitters) will ini- tially be presented to both international presi- dents. If after review by the two parties, the par- ticular matter remains unresolved , it will be referred to the Impartial Jurisdictional Disputes Board for the Construction Industry. Either or both international presidents may refer a dispute to the Board. Taken together, Dowler's testimony and the May 1, 1974, agreement clearly establish that on the date of the work assignment neither international had voluntarily agreed to be bound by the IJDB procedures.' Our col- leagues nevertheless conclude that they were bound by virtue of their membership in the Building and Con- struction Trades Department , AFL-CIO. Article X of the constitution of that department provides for IJDB resolution of all jurisdictional disputes between af- filiated labor organizations. 6 This of course explains why the dispute never was actually submitted to the IJDB for resolution In addition , the agreement not to be bound was merely a continuation of prior policy The internationals had also refused to be bound by the IJDB's predecessor-the National Joint Board for the Settlement of Jurisdictional Disputes-choosing instead to resolve lunsdic- tional disputes at the local level SHEET METAL WORKERS LOCAL UNION NO. 359 We think our colleagues misconstrue our role under Section 10(k). We are concerned with whether the par- ties have voluntarily agreed upon a method for resoly- ing their differences-not with whether they are com- plying with the requirements of their constitution. It may well be that the agreement not to utilize the IJDB procedures is inconsistent with article X of the Building and Construction Trades Department , AFL-CIO, con- stitution. But that is a matter for the Building and Construction Trades Department to resolve, not us. 991 For our purposes, the crucial evidence is that when the work assignment in question was made the two interna- tionals had agreed between themselves for whatever reason-not to utilize the IJDB procedures. Accord- ingly, there does not exist an "agreed-upon method" for the voluntary adjustment of the dispute herein. In our judgment, we are compelled by the require- ments of Section 10(k) to determine this jurisdictional dispute.