Sheet Metal Workers Local 156

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers Local Union 156, AFL-CIO tion 2(6) and (7) of the Act and that it will effectu- and Martin, Inc. and Trio Industries, Inc. and ate the purposes of the Act to assert jurisdiction International Association of Bridge and Struc- herein. tural Iron Workers, Local 147, AFL-CIO. Case 25-CD-212 II. THE LABOR ORGANIZATIONS INVOLVED November 18, 1982 We find that Sheet Metal Workers Local Union 156, AFL-CIO, and International Association of DECISION NDISPUDTERMINATION OF Bridge and Structural Iron Workers, Local 147, AFL-CIO, are labor organizations within the BY CHAIRMAN VAN DE WATER AND meaning of Section 2(5) of the Act. MEMBERS FANNING AND ZIMMERMAN II1. THE DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- A. Background and Facts of the Dispute ing a charge filed by Martin, Inc., alleging that Trio Industries, Inc., the Employer, was hired as Sheet Metal Workers Local Union 156, herein a subcontractor to install all of the windows and called the Respondent or Sheet Metal Workers, the finish metal work in a building being construct- had violated Section 8(b)(4)(D) of the Act by en- ed at One Summit Square. The finish metal work gaging in certain proscribed activity with an object consists of all the entrances, revolving doors, and of forcing or requiring the Employer, Trio Indus- grillwork. The grill is an ornamental one about 12 tries, Inc., to assign certain work to its members inches wide and 40 feet long with bars spaced half rather than to employees represented by Interna- an inch apart. Under the grill is a four-coil fan unit tional Association of Bridge and Structural Iron which occupies 15 percent of the area, the rest of Iron Workers, Local 147, AFL-CIO, herein called the which is empty space. Approximately 117 feet of grill will be installed on each of 28 floors. Pursuant to notice, a hearing was held before grill will be installed on each of 28 floors. Hearing Officer John Petrison on June 19, 1981. The Employer has had a collective-bargaining All parties appeared and were afforded full oppor- agreement with the Iron Workers since 1947 and tunity to be heard, to examine and cross-examine has used employees represented by the Iron Work- witnesses, and to adduce evidence bearing on the ers to install grills for over 24 years. Consistent issues. with its past practice, the Employer assigned this Pursuant to the provisions of Section 3(b) of the work to its employees represented by the Iron National Labor Relations Act, as amended, the Na- Workers. tional Labor Relations Board has delegated its au- In February 1981, the local business agent for thority in this proceeding to a three-member panel. the Sheet Metal Workers approached Trio's field The Board has reviewed the Hearing Officer's superintendent, Joseph Noonan, and asked him rulings made at the hearing and finds that they are "who was installing the grills?" Noonan replied free from prejudicial error. They are hereby af- that he would use ironworkers and, when ques- firmed. tioned "Why," responded that the Company had Upon the entire record in this proceeding, the had an agreement with the Iron Workers since Board makes the following findings: 1947 and had always used them to install grills. In April, the general contractor's superintendent was I. THE BUSINESS OF THE EMPLOYER advised that the Sheet Metal Workers was going to The parties stipulated,' and we find, that the Em- picket the job if Trio used ironworkers. Also in ployer, a Connecticut corporation with its principal April, Noonan received a copy of a request for a place of business in Shelton, Connecticut, is en- hearing before the Impartial Jurisdictional Disputes gaged in commercial construction. During the past Board (IJDB). By letter Loren Cheney, Trio's year, the Employer received goods and materials erection manager, responded to the request for valued in excess of $50,000 at its jobsites directly hearing by stating that he "would in no way" give from suppliers located outside the State where said up any part of the work to the Sheet Metal Work- jobsites were located. We find that the Employer is ers. On April 24, 1981, the IJDB voted to award engaged in commerce within the meaning of Sec- the work in dispute to the Sheet Metal Workers on the basis of trade practice. Trio and Iron Workers 'The commerce data pertaining to the Employer was inadvertently Local 147 ignored this award because neither had omitted at the hearing. Thereafter on August 28, 1981, the parties execut- ed a formal stipulation as to these facts and further stipulated that the agreed to submit the dispute to the lJDB nor had Employer was engaged in commerce within the meaning of the Act. participated in the IJDB proceeding. 259 NLRB No. 49 SHEET METAL WORKER LOCAL 156 325 On May 20, pickets appeared at the jobsite with the mechanism of the IJDB. Accordingly, we con- signs stating that the Iron Workers was unfair to clude that there is no agreed-upon method for set- the Sheet Metal Workers. Employees represented tlement of the dispute that is binding on all parties by the Iron Workers continued to install the grills and that this dispute is, therefore, properly before for the next 5 or 6 days; however, the rest of the the Board for determination. job was shut down during this period as none of the other unions would cross the picket line. On E. Merits of the Dispute May 22, Martin, Inc., another subcontractor on the Section 10(k) of the Act requires the Board to job, filed the instant charge. make an affirmative award of disputed work after B. The Work in Dispute giving due consideration to various relevant fac- tors. The following factors are relevant in making The work in dispute involves the installation of the determination of the dispute before us: grillwork at the construction site located at One Summit Square, Fort Wayne, Indiana. 1. Area and employer past practice C. The Contentions of the Parties The employees represented by the Iron Workers have installed the same type of grill for Art Iron at The Employer contends that the work should be a Fort Wayne public library and a junior high assigned to employees represented by Iron Work- school. Art Iron had also used Fort Wayne iron- ers Local 147, on the basis of the collective-bar- workers to install that type of grill in Lima, Wa- gaining history, area and industry practice, Compa- paeceneta, and Defiance, Ohio. The Sheet Metal ny practice, relative skills involved, efficiency of Workers entered no evidence of area practice at operation, and employer preference. The Sheet the hearing. For the past 24 years the Employer Metal Workers contends that the ruling of the has assigned the installation of grillwork exclusive- IJDB is binding. The Iron Workers contends that ly to employees represented by the Ironworkers. the Employer's assignment of the work should be Area and employer past practice, therefore, favor upheld. an award to those employees. D. Applicability of the Statute 2. Economy and efficiency of operations Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Employees represented by the Iron Workers per- form work for the Employer other than that which Act, it must be satisfied that (1) there is reasonable the Employer is in dispute. As a result the Employer is able to cause to believe that Section 8(b)(4)(D) has been interchange employees between grillwork and violated and (2) the parties have not agreed upon a other metal finishing work and other metal finishing work and perform both the method for the voluntary adjustment of the dis- disputed and other work with one work force. Fur- pute. It is clear that the picketing at the jobsite was to protest the Employer's assignment of the disput- thermore, since the Employer performs no sheet ed work to its employees represented by the Iron metal work, an award of the work to employees represented by the Sheet Metal Workers would Workers and to force the Employer to assign the work to employees represented by the Sheet Metal appear to require the Employer to hire two k Workers. Accordingly we find that reasonable complements. Therefore, economy and efficiency Workers. Accordingly we find that reasonable cause exists to believe that Respondent violated of operations favor an award to employees repre- Section 8(b)(4)(D) of the Act. The Sheet Metal Workers contends that an 3. Employer assignment and preference agreed-upon method for voluntary adjustment of the dispute exists because the Employer voluntarily The Employer has assigned the work in dispute submitted itself to the jurisdiction of the IJDB by to employees represented by the Iron Workers and writing a letter in response to the notice of hearing. has expressed the preference that the disputed The Employer and the Iron Workers assert that work be performed by those employees. We find the decision is not binding as to them because nei- that the Employer's assignment and performance ther had agreed to submit the dispute to the IJDB favor an award of the disputed work to employees nor had participated in that proceeding. represented by the Iron Workers. We find no merit in the Sheet Metal Workers claim that the Employer agreed to be bound by the procedures of the IJDB. The record shows that the Upon the record as a whole, and after full con- collective-bargaining agreement between Trio and sideration of all relevant factors involved, we con- the Iron Workers specifically disclaims reliance on clude that employees represented by the Iron 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Workers are entitled to perform the work in dis- CIO, are entitled to perform the installation of pute. In making this determination, we are award- grillwork at the construction site located at One ing the work in question to employees who are Summit Square, Fort Wayne, Indiana. represented by the Iron Workers, but not to that 2. Sheet Metal Workers Local Union 156, AFL- Union or its members. Accordingly, the present de- CIO, is not entitled by means proscribed by Sec- termination is limited to the work being performed tion 8(b)(4)(D) of the Act to force or require Trio by the Employer at One Summit Square in Fort Industries, Inc., to assign the disputed work to em- Wayne, Indiana. ployees represented by that labor organization. DETERMINATION OF DISPUTE 3. Within 10 days from the date of this Decision and Determination of Dispute, Sheet Metal Work- Pursuant to Section 10(k) of the National Labor ers Local Union 156, AFL-CIO, shall notify the Relations Act, as amended, and upon the basis of Regional Director for Region 25, in writing, the foregoing findings and the entire record in this whether or not it will refrain from forcing or re- proceeding, the National Labor Relations Board quiring the Employer, by means proscribed by Sec- makes the following Determination of Dispute: s. Employees of Trio Industries, Inc., who are tion 8(b)(4)(D) of the Act, to assign the disputed 1. Employees of Trio Industries, Inc., who are represented by International Association of Bridge work n a manner inconsistent with the above e- and Structural Iron Workers, Local 147, AFL-