Sheet Metal Workers Local 38 (Corbesco)

SHEET METAL WORKERS LOCAL 38 (CORBESCO) 1069 Sheet Metal Workers Union, Local 38 and Corbesco, Inc. and Local Union No. 417, Inter- national Association of Bridge, Structural and Ornamental Iron Workers Union, AFL-CIO and Solar Turbines, Inc. Case 2-CD-771 July 31, 1989 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS The charge in this Section 10(k) proceeding was filed April 4, 1989,1 by the Employer, Corbesco, Inc., alleging that the Respondent, Sheet Metal Workers Union, Local 38 (Sheet Metal Workers Local 38), violated Section 8(b)(4)(D) of the Na- tional Labor Relations Act by engaging in pro- scribed activity with an object of forcing the Em- ployer to assign certain work to employees it rep- resents rather than to employees represented by Local Union No. 417, International Association of Bridge, Structural and Ornamental Iron Workers Union, AFL-CIO (Iron Workers Local 417). The hearing was held May 17 before Hearing Officer Mary Ostrowski. 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 following find- ings. 1. JURISDICTION The Employer, a Louisiana corporation with its principal office and place of business located in New Orleans, Louisiana , is engaged in the business of engineering, finishing, fabricating, and installing industrial sheeting and accessories . Annually, it purchases and receives goods and materials valued at more than $50,000 which are shipped directly to it from points outside the State of Louisiana. The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act and that Iron Workers Local 417 and Sheet Metal Workers Local 38 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute In February, the Employer entered into a sub- contract with United Steel Structures (United) to i All dates are in 1989 unless otherwise indicated. install sheeting, finishing and trim, liner panel, insu- lation, walk doors, exhaust fans, roof curbs, louvers, and air intakes at a cogeneration building2 for Lederle Industries (Lederle) at its facility in Pearl River, New York. Solar Turbines (Solar), the general contractor or project manager , contracted with United to supply the steel and siding for the building. The Employer has a collective-bargaining agree- ment with Iron Workers Local 417 covering work of the kind to be performed by the Employer at the Lederle facility. Pursuant to this agreement, on March 1 , the Employer assigned this work to em- ployees represented by Iron Workers Local 417. That same day, Edward Peskie, business represent- ative for Sheet Metal Workers Local 38, phoned Clifford Cutrell, president of the Employer. Peskie told Cutrell he was claiming the Employer's work for employees represented by Sheet Metal Workers Local 38.3 When told by Cutrell that the work had been assigned to employees represented by Iron Workers Local 417, Peskie said that he "could not stand idly by and watch another trade perform our work" and that "I'll just take whatever steps I have to necessary to get this work for my mem- bers."4 The following day, Peskie spoke with representa- tives of Solar, United, and Lederle. Peskie testified that in each of the conversations, he said that the work in question was jurisdictional work belonging to his Union.5 James McGuire, business agent of Iron Workers Local 417, testified that he had a conversation with Peskie regarding the work in question, and then spoke with Bill Watts, a repre- sentative of Solar, who told McGuire that he was concerned that the job would be delayed, or that there would be a work stoppage. McGuire testified that Peskie did not threaten him and that he did not know whether Peskie had threatened Watts. On or about March 8, Alan Miller, a Lederle rep- 2 A cogeneration building is a preengineered building All the compo- nents are predesigned, premanufactured, and shipped to the same site where they are then erected. 8 Employees represented by Sheet Metal Workers Local 38 have per- formed work for contractors at the Lederle site at various times for the past 15 years. 4 Peskie also had a conversation with Bill Watts, a representative of Solar, prior to speaking with Cutrell. Peskie testified that, in this conver- sation, he told Watts that he "couldn 't stand idly by and watch a contrac- tor eat my lunch or contractor do work that I felt belongs to me." 5 Cutrell testified that, on or around March 6, he received a call from Shafrin, a representative of United , who said, "Hey, what are you going to do about the sheet metal problem up in New York? You got to get these guys off my back." In addition, Cutrell testified that he received a call from Bill Watts who told him he was "getting a lot of heat from Mr Peskie" and asked, "what are you going to do to get this man off my back?" Cutrell then added that neither of these people told him they re- ceived a threat from Peskie. 295 NLRB No. 121 1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD resentative, called Peskie and told him he was trying to resolve the situation. The Employer, using employees represented by Iron Workers Local 417, began the work in ques- tion on March 14. On March 15, the Employer re- ceived a letter from United instructing the Employ- er to delete the installation of the building louvers and ventilation fans from its scope of work. At- tached to this letter was a letter from Solar to United requesting that United delete this work from its scope of work at the site . Shortly thereaf- ter, the work at issue was awarded to Elmsford Sheet Metal, a contractor whose employees are represented by Sheet Metal Workers Local 38. The work was then performed and completed by em- ployees represented by Sheet Metal Workers Local 38. B. Work in Dispute The disputed work involves the installation of building louvers, roof curbs, roof fans, and ventila- tion fans on a cogeneration building at the Lederle Laboratories, Division of American Cyanamid, site in Pearl River, New York, being constructed by, inter alia, Corbesco. C. Contentions of the Parties Sheet Metal Workers Local 38 contends that there is no reasonable cause to believe that any of the conversations Peskie had with representatives of the Employer, United, Solar, or Lederle in- volved a violation of Section 8(b)(4)(D) of the Act. For this reason, Sheet Metal Workers Local 38 contends that the present dispute is not properly before the Board. The Employer contends that there is reasonable cause to find that Sheet Metal Workers Local 38 made direct threats to the Employer and coerced Lederle, Solar, and United with the object of forc- ing a reassignment of the work to employees repre- sented by Sheet Metal Workers Local 38 . The Em- ployer further contends that the factors of employ- er preference, efficiency and economy of oper- ations, and its collective-bargaining agreement with Iron Workers Local 417 favor a jurisdictional award to employees represented by Iron Workers Local 417. Moreover, the Employer contends that the Board should award prospective relief to Iron Workers Local 417, encompassing the entire juris- diction of Sheet Metal Workers Local 38, because of the likelihood that Sheet Metal Workers Local 38 will continue to claim the disputed work on future projects arising in its jurisdiction and will resort to similar conduct to obtain such work. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe Section 8(b)(4)(D) of the Act has been violated. The Employer contends that Sheet Metal Workers Local 38 violated Section 8(b)(4)(D) by its statement to the Employer that "I'll just take whatever steps I have to necessary to get this work for my members" and by its subse- quent coercive conversations with representatives of Lederle, Solar, and United . Sheet Metal Work- ers Local 38, however, argues that its statement to the Employer did not constitute a threat and that there is no evidence that Sheet Metal Workers Local 38 threatened or coerced anyone in connec- tion with obtaining the work in question. Peskie testified that while speaking to Cutrell about obtaining the work for employees represent- ed by Sheet Metal Workers Local 38 he said he "could not stand idly by and watch another trade perform our work." Peskie also testified that he subsequently made several calls and spoke to repre- sentatives of Lederle, Solar, and United. He stated that in these conversations he never threatened anyone or told anyone he would picket the job. Cutrell testified that, in his conversation with Peskie, Peskie said to him "I 'll just take whatever steps I have to necessary to get this work for my members." When asked at the hearing if Peskie had threatened him, Cutrell replied that he had not. Cutrell also testified that he did not hear any re- ports of Peskie making threats to Lederle , Solar, or United. Although a Solar representative told the business agent of Iron Workers Local 417 that he was concerned about a delay or work stoppage, he did not indicate that he had been threatened by Peskie. We find that the testimonies of Peskie , Cutrell, and McGuire do not establish reasonable cause to believe that Sheet Metal Workers Local 38 violat- ed Section 8(b)(4)(D). The statements, "I could not stand idly by and watch another trade perform our work" and "I'll just take whatever steps I have to necessary to get this work for my members," are too vague and insubstantial to establish reasonable cause. 6 While these statements do indicate that 6 See generally Teamsters Local 82 (Champion Exposition), 292 NLRB 794 (1989) (union official's statement that there would be "a problem" if another employer was used for a certain job is too vague and insubstan- tial to establish reasonable cause), Lithographers & Photoengravers Interna- tional Union Local 23-P (News Publishing), 167 NLRB 958 (1967) (state- ments "the work had to stop," "the Union would take appropriate ac- tions," and "we are not going to stand still " do not establish reasonable cause); Operating Engineers Local 106 (E C. Ernst), 137 NLRB 1746 (1962) (statement "try it and see" does not establish reasonable cause). SHEET METAL WORKERS LOCAL 38 (CORBESCO) 1071 Peskie intended to take some action, they do not indicate that Peskie was communicating a threat of illegal conduct. Nor are we persuaded that the totality of cir- cumstances leading to the removal of the disputed work from the Employer's subcontract establishes the existence of reasonable cause to believe Section 8(b)(4)(D) was violated. The evidence presented merely establishes that, subsequent to Peskie's con- versations with Lederle, Solar, and United, the work was given to Elmsford Sheet Metal. The to- tality of circumstances suggests that Peskie actively and aggressively pursued the work in question. De- spite the concerns of some of the other contractors, the evidence fails to establish reasonable cause to believe that Peskie threatened anyone in connec- tion with obtaining the disputed work for employ- ees represented by Sheet Metal Workers Local 38. We find that the Board is without authority to determine this dispute. Accordingly, we shall quash the notice of hearing.' ORDER The notice of hearing is quashed. 7 In view of our finding that there is no reasonable cause to believe that Sec 8(b)(4XD) has been violated, we find it unnecessary to pass on Sheet Metal Workers Local 38's alternative argument made at the hear- ing that the notice of hearing should be quashed because of Sheet Metal Workers Local 38's disclaimer of the disputed work.