Sheet Metal Workers Local 36 (Fisher Inc)

SHEET METAL WORKERS LOCAL 36 (FISCHER INC) 165 Sheet Metal Workers International Association, AFL-CIO, Local Union No 36 and Frank Fischer, Incorporated and Local Union No 2, International Union of Operating Engineers, AFL-CIO and Design Aire, Inc Case 14-CD- 790 September 30, 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10(k) proceeding was filed April 13 1988 by Frank Fischer Incorporat ed alleging that the Respondent, Sheet Metal Workers International Association, AFL-CIO Local Union No 36 (Sheet Metal Workers Local 36) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed ac tivity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Local Union No 2 International Union of Operating En gineers, AFL-CIO (Operating Engineers Local 2) The hearing was held April 20 1988 before Hear ing Officer Mary J Tobey Thereafter the Em ployer filed a brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board affirms the hearing officer s rulings finding them free from prejudicial error On the entire record the Board makes the fol lowing findings I JURISDICTION The Employer Frank Fischer Incorporated a Missouri corporation with its principal office and place of business located at 3940 Taussig Road Bridgeton Missouri is a residential heating and air conditioning contractor During the past 12 month representative period, the Employer purchased and received goods valued in excess of $50 000 directly from suppliers located outside the State of Missou n The parties stipulate and we find that the Em ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Sheet Metal Workers Local 36 and Operating Engineers Local 2 are labor organizations within the meaning of Section 2(5) of the Act II THE DISPUTE A Background and Facts of the Dispute The Employer is a residential contractor en gaged in the installation of heating and air condi and replacement agreement tioning systems Sheet Metal Workers Local 36 has represented the Employers employees since 1956 and was certified as their collective bargaining rep resentative in 1965 The current collective bargain mg agreement is effective from May 1 1986, through April 30 1989 Design Aire Inc was in corporated in 1962 to service the heating and air conditioning systems installed by the Employer Design Aire and Operating Engineers Local 2 exe cuted a collective bargaining agreement shortly after Design Aire s incorporation The most recent agreement was effective from April 1 1985 through March 31 1988 At the time of the hear ing Operating Engineers Local 2 was engaged in an economic strike against Design Aire and the parties were attempting to negotiate a new agree ment The Employer and Design Aire share common ownership, management and business fa cilities Before 1987 about 5 to 10 percent of the total work performed by the Employer and Design Aire consisted of the disputed work (add on or replace ment work) The add on work was performed as a courtesy to existing customers About 60 percent of the add on work was performed by Design Aire employees represented by Operating Engineers Local 2 The remaining work was performed by the Employers employees represented by Sheet Metal Workers Local 36 During this period if the add on work required a significant amount of duct work or sheet metal work the job was assigned to the Employers employees Sometime prior to March 1987 the Employer and Sheet Metal Workers Local 36 entered into a side agreement providing for a lower paid employ ee classification called residential specialist to per form the add on/replacement work i The Employ er thereafter actively solicited add on work In March 1987 the Employer hired new employees as residential specialists in the unit represented by Sheet Metal Workers Local 36 It commenced as signing about 95 percent of the add on work to the new employees Presumably due to its active solici tation the Employer increased its volume of add on/replacement work fivefold On September 16 1987 Operating Engineers Local 2 filed a grievance against the Employer concerning the recent layoff of three apprentices The grievance alleged that the reassignment of the add on work to the residential specialists violated the agreement between Design Aire and Operating Engineers Local 2 Thereafter, Sheet Metal Work ers Local 36 sent a letter dated March 23, 1988, to ' This side agreement is referred to as the special residential service 291 NLRB No 22 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Employer The letter referred to the impending arbitration of the Operating Engineers Local 2 s grievance and contained a threat to strike if the add on work were assigned to employees repre sented by Operating Engineers Local 2 As of the hearing date the work had not been reassigned and the grievance had not been arbitrated B Work in Dispute The disputed work involves the replacement of existing heating and air conditioning systems and the addition of air conditioning units to existing heating systems C Contentions of the Parties The Employer contends that Section 8(b)(4)(D) has been violated that it properly assigned the dis puted work to employees represented by Sheet Metal Workers Local 36 that its past practice and the area practices are mixed that all the collective bargaining agreements involved arguably encom pass the disputed work that its preference is to award the disputed work to employees represented by Sheet Metal Workers Local 36 that employees represented by the Sheet Metal Workers Local 36 are more qualified to perform the work because of their fabrication skills and that the use of this em ployee group is more economical and efficient Sheet Metal Workers Local 36 contends that the work is properly assigned to employees it repre sents because they have the necessary skills and special training to perform add on work Operating Engineers Local 2 contends that no award of the work is appropriate because the record evidence fails to establish a violation of Sec tion 8(b)(4)(D) Alternatively Local 2 contends that if there is an award the work should be award ed to both employee groups consistent with the Employers past practice No party contends that there is an alternative method to voluntarily resolve the dispute that binds all parties D Applicability of the Statute Before the Board may proceed under Section 10(k) of the Act to determine a jurisdictional dis pute it must find that there is reasonable cause to believe that Section 8 (b)(4)(D) has been violated and that there is no agreed on method for resolving the dispute It is undisputed that by its March 23 1988 letter Sheet Metal Workers Local 36 informed the Fm ployer that if this work is reassigned to the em ployees represented by Local 2 it is the intention of Local 36 to immediately strike for the purpose of obtaining this work Based on the foregoing we conclude that there is reasonable cause to be heve that Sheet Metal Workers Local 36 has vio lated Section 8(b)(4)(D) of the Act See Typographi cal Union Local 6 (New York Times) 225 NLRB 1311 (1976) (expression of readiness to strike suf ficient) Lithographers Local 24 P (Beacon Journal) 185 NLRB 464 (1970) (union in possession of work threatened to resist reassignment by appropriate means including a strike ) Furthermore there is no evidence of a mutually agreed on method for voluntarily resolving this dis pute Accordingly we conclude that this dispute is properly before the Board for determination E Merits of the Dispute Section 10(k) requires the Board to make an of firmative award of disputed work after considering various factors NLRB v Electrical Workers IBEW Local 1212 (Columbia Broadcasting) 364 U S 573 (1961) The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience reached by bal ancing the factors involved in a particular case Machinists Lodge 1743 (Jones Construction) 135 NLRB 1402 (1962) The following factors are relevant in making the determination of this dispute 1 Certification and collective bargaining agreements On April 19 1965 the Board certified Sheet Metal Workers Local 36 as the bargaining repre sentative of all journeymen and apprentice sheet metal workers employed at the Employer s Bridgeton Missouri facility The parties did not in troduce evidence of any Board certification of Op erating Engineers Local 2 to represent the Design Aire employees All three of the record collective bargaining agreements2 arguably encompass the disputed work The record also contains evidence of a memorandum of understanding dated June 4 1986 signed by Sheet Metal Workers Local 36 and Op erating Engineers Local 2 officials The stated pur pose of the memorandum is to clarify Sheet Metal Workers Local Union #36 St Louis Missouri s intent for the utilization of the residential service and replacement agreement The memorandum states that Sheet Metal Workers Local 36 will not 2 The three collective bargaining agreements include the agreement be tween the Employer and Sheet Metal Workers Local 36 effective May 1 1986 through April 30 1989 the agreement between Design Aire Inc and Operating Engineers Local 2 effective April 1 1985 through March 31 1988 and the side agreement called the special residential service and replacement agreement between the Employer and Sheet Metal Workers Local 36 SHEET METAL WORKERS LOCAL 36 (FISCHER INC) infringe on any straight line contractors signatory to an Operating Engineers Local 2 contract but that combination contractors signatory to both Sheet Metal Workers and Operating Engineers contracts will be offered the agreement Although we note the memorandums existence its language is insufficient to be of any relevance in making a determination of this dispute Under these circum stances we find that the factors of certification and collective bargaining agreements do not favor an award of the disputed work to either group of em ployees 2 Company preference and past practice The Employer prefers to use the residential spe cialists represented by Sheet Metal Workers Local 36 to perform the disputed work Before March 1987 the Employer used both groups of employees However since March 1987 the Employers prat tice has been to assign the disputed work 95 per cent of the time to employees represented by Sheet Metal Workers Local 36 We find that the factor of company preference favors an award to the em ployees represented by Sheet Metal Workers Local 36 However, we find that the factor of past prac tice does not favor an award to either employee group 3 Relative skills The record establishes that the add on work re quires the use of skills involving sheet metal wiring and pipefitting The Employer purchased trucks called cube trucks specially equipped to allow an employee to perform all the necessary work at the jobsite including sheet metal work Operating Engineers Local 2 concedes that only the employees represented by Sheet Metal Workers Local 36 possess sufficient sheet metal skills to per form all portions of the disputed work at the job site and are therefore able to utilize fully the cube trucks Sheet Metal Workers Local 36 has an apprenticeship training program that involves special instruction in the add on/replacement field Although Operating Engineers Local 2 also has a training program it does not cover duct work unless taken as an elective The record further es tablishes that when Operating Engineers Local 2 employees do perform add on work measurements for the sheet metal work are taken and the duct work is fabricated in the shop rather than at the 167 jobsite Thereafter another employee installs the duct work Under these circumstances we find that this factor of relative skills favors an award to the employees represented by Sheet Metal Workers Local 36 4 Economy and efficiency of operation The record establishes that Sheet Metal Workers Local 36 residential specialists perform all portions of add on work at the jobsite and are able to fully utilize the Employers cube trucks The record also establishes that because employees represented by Operating Engineers Local 2 lack certain neces sary skills involving sheet metal the use of these employees to perform the add on work requires ad ditional time steps and manpower to complete the same add on work Also Operating Engineers Local 2 represented employees that are not able to fully utilize the cube trucks the Employer pur chased for use on jobs involving any disputed work Accordingly we find tnat the factor of economy and efficiency of operation favors award ing the disputed work to employees represented by Sheet Metal Workers Local 36 Conclusions After considering all the relevant factors we conclude that employees represented by Sheet Metal Workers Local 36 are entitled to perform the work in dispute We reach this conclusion rely ing on the factors of relative skills economy and efficiency of operation and employer preference In making this determination we are awarding the work to employees represented by Sheet Metal Workers Local 36 not to that Union or its mem bers The determination is limited to the controver sy that gave -ise to this proceeding DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute Employees of Frank Fischer Incorporated rep resented by Sheet Metal Workers International As sociation AFL-CIO Local Union No 36 are enti tled to perform the replacement of existing heating and air conditioning systems and the addition of air conditioning units to existing heating systems (add on/replacement work) for Frank Fischer In corporated Bridgeton Missouri