International Association of Heat and Frost Insulators and Asbestos Workers, Local No. 66 (API, Inc.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Heat and Frost Insula- tors and Asbestos Workers, Local No. 66 and Alton W. Crisp and API, Inc. and Sheet Metal Workers International Union, Local Union No. 29. Case 17-CD-295 9 August 1983 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Alton W. Crisp (Crisp) alleg- ing that International Association of Heat and Frost Insulators and Asbestos Workers, Local No. 66 (Asbestos Workers), violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activi- ty with an object of forcing or requiring API, Inc. (the Employer), to assign certain work to employ- ees represented by Asbestos Workers rather than to employees represented by Sheet Metal Workers In- ternational Union, Local Union No. 29 (Sheet Metal Workers). Pursuant to notice, a hearing was held before Hearing Officer Daniel L. Hubbel on 6 April 1983 at Denver, Colorado. 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. Thereaf- ter, the Employer and Sheet Metal Workers filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that they are free from prejudicial error. They are hearby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer is a Minnesota corporation engaged in the manufacture and installation of insulation and metal lagging. At all times material herein, it has been en- gaged as a subcontractor at the Sunflower Electric Cooperative Project at Holcomb, Kansas. During the 12 months preceding the hearing, the Employer purchased and received goods and materials valued in excess of $50,000 directly from suppliers outside the State of Kansas. Accordingly, we find the Em- ployer is engaged in commerce within the meaning 267 NLRB No. 16 of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert juris- diction herein. II. THE L.ABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Asbestos Workers and Sheet Metal Workers are labor orga- nizations within the meaning of Section 2(5) of the Act. Ill. THE DISPUTE A. Background and Facts of the Dispute The Employer is an insulation subcontractor on the Sunflower Electric Cooperative Project, a power plant construction project at Holcomb, Kansas. When the Employer's general foreman, Rick Shaw, arrived at the job, he contacted the Asbestos Workers business agent, Donald Schaffer, about insulation and metal lagging work. Schaffer told Shaw that, in addition to insulation work, As- bestos Workers did 95 percent of the metal lagging in Schaffer's jurisdiction. Although Shaw had no authority to do so, he told Schaffer to send people represented by Asbestos Workers to the jobsite. At the jobsite Shaw assigned employees represented by Asbestos Workers to insulation work and subse- quently to the work of installing metal lagging greater than .016 inches in thickness. When the Sheet Metal Workers business agent, Ron Weems, learned that employees represented by Asbestos Workers were doing the work in dis- pute, he called the Employer's regional manager, Robert Nelson, and claimed the lagging work. Nelson halted work at the jobsite and called a meeting of the two Unions in the Employer's office. At the meeting, both Unions presented evi- dence to support their respective claims to the lag- ging work. Subsequently, the Employer sent letters to both Unions advising them that it was assigning the lagging work to employees represented by Sheet Metal Workers. Asbestos Workers responded to the Employer's assignment by submitting the matter to the Impar- tial Jurisdictional Dispute Board (IJDB) for the construction industry in October or November 1982. However, that board had been inactive since 1 June 1981 and remained so as of the date of the hearing. Thereafter, on 8 November 1981, Asbestos Workers attorney, Buddy Wright, wrote a letter to the Employer in which he stated, inter alia, "based upon the jurisdictional dispute, we will advise the local and other individual members and non- members of this wrongful assignment and to seek to take any and all action in opposition of said as- signment." Additionally, on 23 November, Schaffer 56 ASBESTOS WORKERS LOCAL 66 sent a letter to the jurisdictional director of the In- ternational Association of Heat and Frost Insula- tors and Asbestos Workers, with a copy to the Em- ployer, stating, inter alia, "we continue to advance our position and will by I December, place an in- formational picket at the jobsite." As of the time of the hearing, Asbestos Workers had not engaged in picketing at the jobsite. B. The Work In Dispute The work in dispute, as amended at the hearing, is the installation of metal lagging greater than .016 inches in thickness other than that work being per- formed by the composite crew. C. Contentions of the Parties The Employer and Sheet Metal Workers con- tend there is reasonable cause to believe that As- bestos Workers violated Section 8(b)(4)(D) and that there is no agreed-upon method for the adjust- ment of the dispute. Both contend that the work in dispute should be awarded to employees represent- ed by Sheet Metal Workers on the basis of the col- lective-bargaining agreement between the Employ- er and Sheet Metal Workers, Employer practice, industry and area practice, relative skills, Employer preference, and interunion agreements. Asbestos Workers contends that the work in dis- pute should be awarded to employees represented by it based on the factors of area practice and rela- tive skills. 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 the parties have not agreed upon a method for voluntary adjustment of the dispute. As noted above, when the Employer assigned the work in dispute to employees represented by Sheet Metal Workers, Asbestos Workers threat- ened "to seek to take any and all action in opposi- tion of said assignment" and subsequently to "place an informational picket at the jobsite." Additional- ly, the parties stipulated that the 8 November letter by the Asbestos Workers attorney was written on behalf of the Local and was intended to be a threat. The parties further stipulated that, based both on that letter and the 23 November letter of the Asbestos Workers business agent, Asbestos Workers engaged in threats proscribed by Section 8(b)(4)(D) of the Act with an object of forcing or requiring the Employer to assign the work in dis- pute to employees represented by it. Based on the foregoing, and on the record as a whole, we find reasonable cause exists to believe that an object of the threats by Asbestos Workers was to force the Employer to assign the work in dispute to employees represented by Asbestos Workers and that a violation of Section 8(b)(4)(D) has occurred. As noted above, Asbestos Workers submitted the dispute over the work in question to the IJDB. Under the terms of the Sunflower Electric Cooper- ative, Inc., project agreement, all of the parties are bound to abide by the rules and decisions of the IJDB. However, the IJDB ceased issuing decisions on I June 1981 and the record shows that it had not recommenced issuing decisions as of the date of the hearing. Since the IJDB is not in a position to render an award,' and since there is no evidence of any other agreed-upon method, we find that there is no agreed-upon method for the voluntary adjustment of the dispute. Accordingly, we find the dispute is properly before the Board for deter- mination 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 giving due consideration to various factors.2 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.3 1. Certification and collective-bargaining agreements Neither of the Unions involved herein has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employ- ees. At all times material herein, Sheet Metal Workers has had a collective-bargaining agreement with the Employer containing jurisdictional lan- guage which is sufficient to encompass the work in dispute.' The Employer has no collective-bargain- ing agreement with Asbestos Workers. According- ly, we find that the factor of collective-bargaining agreements favors an award of the disputed work to employees represented by Sheet Metal Workers. I See, generally, Laborers Local 449 (Modern Acoustics. Inc.). 260 NLRB 883 (1982). 2 NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcast- ing), 364 U.S. 573 (1961). 3 Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). 4Thus the collective-bargaining agreement provides "this agreement covers . . . employees of the Employer . engaged in .. lagging over insulation." 57 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Employer practice and preference It is undisputed that the Employer's practice over at least the past 10 years has been to assign metal lagging work over .016 inches in thickness to employees represented by Sheet Metal Workers, and that, with the exception of one Iowa project, the Employer consistently has followed this prac- tice. Although Shaw, the Employer's general fore- man, initially assigned the disputed work to em- ployees represented by Asbestos Workers, the record discloses that he had no authority to do so. The record further discloses that the Employer prefers to continue to follow its practice of assign- ing the disputed work to employees represented by Sheet Metal Workers, since their performance has been satisfactory. We therefore find that the factor of Employer practice favors an award of the work in dispute to employees represented by Sheet Metal Workers. We further find that, although not enti- tled to controlling weight, the factor of Employer preference favors an award of the disputed work to employees represented by Sheet Metal Workers. 3. Industry and area practice Sheet Metal Workers presented evidence that employees represented by it had been assigned metal lagging work in many areas of the country. Both Sheet Metal Workers and Asbestos Workers produced evidence to show that they had been as- signed metal lagging work in the southwest Kansas area. Neither industry practice nor area practice is sufficiently clear to be helpful in determining this dispute. 4. Relative skills The record reveals that both groups of employ- ees possess the requisite skills to perform the work in dispute. We therefore find that the factor of rela- tive skills is not helpful to our determination. 5. Interunion agreement In 1957, Sheet Metal Workers International As- sociation and International Association of Heat and Frost Insulators and Asbestos Workers, the parent organizations of the respective Unions involved herein, entered into an agreement. That agreement, by its terms, assigned the application of aluminum lagging heavier than .016 inches to Sheet Metal Workers. However, it is undisputed that in 1968 In- ternational Association of Heat and Frost Insula- tors and Asbestos Workers abrogated the agree- ment. The Board has not assigned significant weight to such agreements where all the parties have not agreed to abide by them. 5 Accordingly, we give no significant weight to the interunion agreement. Conclusion Upon the record as a whole, and after full con- sideration of all the relevant factors involved, we conclude that the employees who are represented by Sheet Metal Workers are entitled to perform the work in dispute. We reach this conclusion based on the collective-bargaining agreement between the Sheet Metal Workers and the Employer, Employer practice, Employer preference, and the fact that the employees represented by Sheet Metal Workers possess the requisite skills to perform the disputed work. In making this determination, we are award- ing the work in dispute to the employees represent- ed by the Sheet Metal Workers, but not to that Union or its members. The present determination is limited to the particular controversy 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 basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employeees of API, Inc., who are represented by Sheet Metal Workers International Union, Local Union No. 29, are entitled to perform the in- stallation of metal lagging greater than .016 inches in thickness other than that work being performed by the composite crew. 2. International Association of Heat and Frost Insulators and Asbestos Workers, Local No. 66, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require API, Inc., to assign the disputed work to employees repre- sented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Asso- ciation of Heat and Frost Insulators and Asbestos Workers, Local No. 66, shall notify the Regional Director for Region 17, in writing, whether or not it will refrain from forcing or requiring API, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner in- consistent with the above determination. 6 See Iron Workers Local 361 (Concrete Casting Corp.), 209 NLRB 112 (1974). 58