Local Union No 418, Sheet Metal Workers

National Labor Relations Board - Board Decisions

Jun 17, 1976

224 N.L.R.B. 993 (N.L.R.B. 1976)

LOCAL UNION NO 418 , SHEET METAL WORKERS 993
Local Union No 418 , Sheet Metal Workers Interna-
tional Association , AFL-CIO and Young Plumbing
& Supply , Inc and Local Union No 521, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada , AFL-CIO Case 9-CD-307-2
June 17, 1976
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Young Plumbing & Supply, Inc,
herein called the Employer, on October 1, 1974, al-
leging that Local Union No 418, Sheet Metal Work-
ers International Association, AFL-CIO, herein
called Sheet Metal Workers, had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activities with an object of (1) forcing the
Employer to assign certain work to employees repre-
sented by Sheet Metal Workers instead of to employ-
ees represented by Local Union No 521, United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, herein called Plumb-
ers, or (2) forcing the Employer to pay an award of
damages to Sheet Metal Workers'
Pursuant to notice, a hearing was held before
Hearing Officer James A Schwartz on June 2, 1975,
at Huntington, West Virginia 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 Thereafter,
the Charging Party filed a brief
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 of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error The rulings are hereby
1 The instant proceeding is a continuation of a dispute reported in our
prior decision at 209 NLRB 1177 (1974) involving the same parties as here
in (In the earlier dispute Sheet Metal Workers International Association
AFL-CIO was named as a respondent In the present proceeding only
Local 418 of the International is named as a respondent) In that earlier
decision we quashed the notice of hearing since we found that all parties
had agreed to be bound by a determination of the new Impartial Jurisdic
tional Disputes Board (IJDB) for the construction industry For reasons we
note below we are now proceeding to a determination of this dispute and to
an award of the work in dispute here
affirmed The Board has considered the Charging
Party's brief and the entire record in this case 2 and
hereby makes the following findings
I THE BUSINESS OF THE EMPLOYER
The Employer is a West Virginia corporation en-
gaged as a general mechanical contractor During the
course of the past year, a representative period, the
Employer has performed services valued in excess of
$50,000 for firms within the State of West Virginia
who, in turn, purchased goods and materials valued
in excess of $50,000 directly from sources outside the
State of West Virginia During the same time period,
the Employer itself purchased goods and materials
valued in excess of $50,000 which it caused to be
shipped in interstate commerce from points outside
the State of West Virginia to various locations within
the State of West Virginia For the same period of
time, the Employer had a gross volume of business in
excess of $500,000 Accordingly, we find, as the par-
ties 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
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find , that Sheet
Metal Workers and Plumbers are labor organizations
within the meaning of Section 2(5) of the Act
III THE DISPUTE
A The Work in Dispute
The work in dispute consists of the installation,
including the hanging, of Carrier Weathermaster
Model 36R-202-1 units, herein Carrier units, at the
Holiday Inn, Huntington, West Virginia, jobsite
B Background and Facts of the Dispute
As note above, the instant proceeding is an out-
growth and continuation of an earlier dispute involv-
ing the same parties The facts of that earlier dispute,
up to the time of our first decision, are set out in
depth in our earlier decision and are summarized
here
In March 1972, the Employer contracted to install
a number of Carrier units at the Holiday Inn jobsite
At the time, a prejob conference was held among the
Employer, the general contractor, Sheet Metal Work-
2 The record includes the decision the transcript and the exhibits from
the prior proceeding
224 NLRB No 60
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers, Plumbers, and various other building trades
unions The Employer, who had a contract with both
Sheet Metal Workers and Plumbers, agreed with the
two unions that the disputed work would be per-
formed pursuant to the provisions of a 1956 "Interim
Agreement" between the Internationals of Plumbers
and Sheet Metal Workers and their affiliate locals
regarding the division of several types of air terminal
installation work It was not known at the time, how-
ever, which type of terminal unit would be installed
on the Holiday Inn jobsite and therefore which pro-
vision of the interim agreement would apply
Thereafter, as the Carrier units arrived, the Em-
ployer assigned the work in dispute to its employees
who were represented by Plumbers After a few of
the units had been installed, utilizing plumbers, a
Sheet Metal Workers representative claimed to the
Employer that the work should have been assigned to
a composite crew of employees represented by Sheet
Metal Workers and Plumbers The Employer, how-
ever, refused to change the assignment
As the Employer adhered to its work assignment,
Sheet Metal Workers duly filed a grievance against
the Employer under its contract with the Employer
Pursuant to the contract procedure, various panels
consisting only of Sheet Metal Workers representa-
tives and sheet metal contractors determined that the
Employer had violated its contract with Sheet Metal
Workers by assigning the disputed work solely to em-
ployees represented by Plumbers The panel assessed
damages of $2,040 against the Employer Thereafter,
as the Employer continued to refuse to pay the as-
sessment , its contract with Sheet Metal Workers was
canceled
After the cancellation, Sheet Metal Workers re-
fused to refer sheet metal workers to the Employer
and all the Employer's employees represented by
Sheet Metal Workers left the employ of the Employ-
er It was in that situation that the dispute first came
before us
As set forth in footnote 1, supra, we determined at
that time all the parties had agreed to be bound by a
determination of the IJDB for the construction in-
dustry and, in accord with statutory policy in such
circumstances, we quashed the notice of hearing is-
sued herein
Our decision issued on April 9, 1974 Thereafter,
for a total of 3-1/2 days, in late May 1974 and on
June 4 and 5, 1974, Sheet Metal Workers picketed
the Employer On June 4 and 5 that picketing was
carried on at the Employer's shop and the picket sign
indicated "Young Plumbing and Supply does not
have a contract with the Sheet Metal Workers Local
418-Information " At the time of the June picket-
ing, the Employer was engaged in work at the Hunt-
ington Federal Savings & Loan Association Accord-
ing to Owen Burns, a Sheet Metal Workers represen-
tative, he notified an official of the bank that there
was a "non-union" person working as a sheet metal
worker at the bank and that he owed the bank offi-
cial the courtesy of letting him know that he, Burns,
would have to "advertise" this fact Burns said that
initially he did not know for whom this person was
working, that the bank official mentioned the con-
tractors who were then working, and that Burns then
told the bank official that the Employer had no con-
tract with Sheet Metal Workers It appears that the
bank official then asked the sheet metal worker to
leave the jobsite and he did, without incident 3
At the Huntington Federal Savings site, the Em-
ployer and Sheet Metal Workers discussed the possi-
bility of the Employer's signing a contract While it is
apparent the Employer wished to do so, Sheet Metal
Workers insisted on the Employer's payment of the
$2,040 assessment as a prerequisite to the signing of
any contract The Employer refused and, until the
time of the second hearing, it had secured no sheet
metal workers through Sheet Metal Workers because
it did not have a contract with Sheet Metal Workers 4
Because of this inability to secure sheet metal work-
ers, until the time of the second hearing, the Employ-
er either had continued to subcontract the sheet met-
al work on larger jobs to employers who did have
contracts with Sheet Metal Workers, or had not bid
on jobs it otherwise would have bid on had it been
under contract with Sheet Metal Workers 5 At the
time of the second hearing herein, however, all the
work in dispute at the Holiday Inn jobsite, which
gave rise to this controversy, had been completed
With respect to the attempts to settle this dispute
through the auspices of the IJDB, the following chro-
nology was developed at the second hearing On July
15, 1974, as corrected by a modification on July 16,
1974, the Employer wrote the IJDB, enclosing a copy
of our earlier decision quashing the notice of hearing
and setting forth its version of the dispute and setting
out the occurrences since our first hearing herein
The IJDB, on July 22, 1974, then wrote the two
unions involved, enclosing the Employer's corre-
spondence and asking the two unions for their com-
ments The matter appears to have remained dor-
mant for some time, since, on March 11, 1975, the
3 Later in June 1974 a member of Sheet Metal Workers Larry Asbury
was fined by Sheet Metal Workers for working on June 4 1974 for the
Employer at the Huntington Federal Savings & Loan Association at a time
when the Employer was not a signatory to any agreement with Sheet Metal
Workers
4 The Employer was able to hire at least one sheet metal worker indepen
dently however
5 However the Employer had continued to perform smaller sheet metal
work jobs which involved the use of one sheet metal worker
LOCAL UNION NO 418, SHEET METAL WORKERS 995
Employer wrote the IJDB asking for a status report
on its presentation of the dispute before the IJDB
and indicating that the last correspondence the Em-
ployer had received was a copy of the IJDB's letter
of July 22, 1974, to the two unions There followed a
series of letters between the Employer and the IJDB
through March 1975
On April 4, 1975, in a letter signed by representa-
tives of the two unions, and addressed to the IJDB,
the two unions indicated that "no jurisdictional dis-
pute presently exists at the Holiday Inn Project,
Huntington, West Virginia, or at any other construc-
tion site within the jurisdiction of the undersigned
Local Unions which involves said Local Unions The
work in question at one time has been completed for
a considerable length of time No strike nor [sic]
shutdown exists involving the above referenced com-
pany and the undersigned unions " On April 10,
1975, the president of Sheet Metal Workers Interna-
tional Association also wrote the IJDB, referring to
the April 4, 1975, letter and stating that the informa-
tion contained in that letter "should definitely decide
that no further action by [the IJDB] is warranted in
this case "
Thereafter, in a letter of April 11, 1975, the IJDB,
referring to the April 4 and 10 letters noted above,
informed the Employer "[i]t would appear that no
dispute exists between the Sheet Metal Workers In-
ternational Association and the United Association
of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry on [the Holiday Inn project] at
this time and that no further action by this Board is
required "
C Contentions of the Parties
The Employer argues that the IJDB has refused to
decide the jurisdictional dispute here and thus the
Board should exercise its jurisdiction
Sheet Metal Workers claims there is no dispute
here over any work Rather, it argues that the dispu'
is over the Employer's failure to pay the assessment
levied against it Sheet Metal Workers does argue
that there was never any agreed-upon method to de-
termine the dispute in question through the IJDB
Plumbers contends that the particular dispute "ap-
pears" to have been rendered moot because of the
completion of the initially disputed work but it also
argues that there is no voluntary method for the ad-
justment of this dispute under Section 10(k) of the
Act and therefore claims "this jurisdictional dispute
should be resolved by the National Labor Relations
Board pursuant to its authority under Section 10(k)
of the National Labor Relations Act "
With regard to the particular merits of the dispute,
none of the parties stated any opinions at the second
hearing on the assignment of the work We note that,
in the first hearing, Sheet Metal Workers contended
that the disputed work should have been awarded to
a composite crew of sheet metal workers and plumb-
ers but also claimed that its interpretation of the 1956
interim agreement rendered the disputed work theirs
Plumbers also relied on the 1956 interim agreement
to support the award of work to its members The
Employer claimed that, since the two unions could
not reach agreement on the basis of the 1956 interim
agreement, it gave the work to employees represented
by Plumbers in accord with its understanding of the
applicable provisions of the interim agreement
D Applicability of the Statute
Before the Board may proceed to the determina-
tion of the 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) of the Act has been
violated, and that the parties have not agreed upon a
method for the voluntary adjustment of the dispute
In our initial decision herein, a panel majority
found that Sheet Metal Workers pursuit of money
damages from the Employer, cancellation of the con-
tract, refusal to refer sheet metal workers to the Em-
ployer, and picketing, because the Employer no lon-
ger had a contract with Sheet Metal Workers, gave
reasonable cause to believe Sheet Metal Workers had
violated Section 8(b)(4)(D) of the Act since Sheet
Metal Workers actions all stemmed from the
Employer's having assigned the disputed work exclu-
sively to employees represented by Plumbers
Since our prior decision, Sheet Metal Workers has
continued to refuse to refer workers to the Employer
for the same reason we noted in our earlier decision
It has also picketed the Employer since our prior de-
cision because of the Employer's failure to obtain a
contract with Sheet Metal Workers However, since
that failure stems, as noted before, from the
Employer's having assigned the disputed work exclu-
sively to employees represented by Plumbers, we
find, for the reasons we noted in our prior decision,
that this type of "economic retaliation"-constitutes
coercion within the meaning of Section 8(b)(4),
which furnishes reasonable cause to believe Sheet
Metal Workers has violated Section 8(b)(4)(D) of the
Act And, because of the peculiar facts of this case,
we also find that there is now no agreed-upon meth-
od for the adjustment of this dispute and we may
proceed to determine the dispute before us
As we have repeatedly stated, "the basic import of
this Section [10(k)], as well as the clear objective of
the statute as a whole, is to encourage the parties
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in jurisdictional disputes to settle their dif-
ferences amicably within the stabilizing compass of
the collective -bargaining process and its resultant
contracts " 6 To that end, we note that Congress pro-
vided that parties are to settle a_Jurisdictional dispute
among themselves without Government intervention
(1) if there has been a voluntary adjustment of the
dispute or (2) if evidence has been submitted to the
Board that the parties have agreed on a method for
the voluntary adjustment of the dispute In either
case , the Board must withhold its processes' and we
will quash the notice of hearing in the case 8 It was
under such guiding principles that we initially
quashed the notice of hearing in the instant case 9
After we quashed the notice of hearing, however,
the Employer did submit the instant dispute to the
IJDB As we have noted, that body refused to make
a determination because the particular work which
gave rise to the dispute had already been complet-
ed 10 In this respect, the IJDB's procedures appear to
differ from our own since historically we hold that
the fact that work may have been completed on a
particular jobsite does not render a dispute moot if
there is evidence of similar disputes between the par-
ties in the past and nothing to indicate that such dis-
putes will not arise in the future 11 Here, the evidence
of Sheet Metal Workers "economic retaliation"
against the Employer for the Employer's failure to
pay the assessment has continued over the past 2
years and clearly has extended beyond the particular
jobsite at which the dispute first arose In such cir-
cumstances, IJDB's refusal to make a determination
was not an affirmative determination on the merits
and we conclude that we may appropriately proceed
to determine the dispute 12
6 Ironworkers Local No 708 International Association of Bridge Structural
and Ornamental Ironworkers AFL-CIO (Armco Drainage and Metal Prod
ucts Co Inc) 137 NLRB 1753 1756 (1962)
7 International Brotherhood of Teamsters Chauffeurs Warehousemen and
Helpers of America Local #236 Teamsters (William F Traylor) 97 NLRB
1003 1006 (1952)
& United Brotherhood of Carpenters and Joiners of America Local 943
A F of L (Manhattan Construction Company Inc) 96 NLRB 1045 (1951)
v We determined there that the Employer and Plumbers were contractual-
ly obligated to submit jurisdictional disputes to the IJDB and that Sheet
Metal Workers as a member of the Building and Construction Trades De
partment AFL-CIO was also bound by the IJDB s procedures and deter
mmations
'()Chairman Murphy is of the view that it would be far better procedure
for the IJDB to resolve cases deferred to it by the Board even though the
work has been completed Its present practice results in unconscionable
delay and involves an undue waste of money and time if the parties must
ask the Board a second time to determine the dispute
i i Sheet Metal Workers International Association (AFL-CIO) Local No
541 (Kingery Construction Company) 172 NLRB 1046 1049 ( 1968) and
cases cited at In 9
12 At the second hearing there was introduced into evidence the full text
of the unions 1956 interim agreement together with various modifications
to that agreement It appears that at the time of the first hearing herein the
Board was not presented with the entire text of that agreement and there
fore we commented in our earlier decision that neither enforcement meth
E The Merits of the Dispute
As we stated in J A Jones Construction Compa
ny,13 we shall determine the appropriate assignment
after taking into account and balancing all relevant
factors
I Certifications, collective-bargaining agreements,
and awards
There is no certification which covers the work in
dispute The Employer, over a period of years, had
collective-bargaining agreements with both Plumbers
and Sheet Metal Workers While, at the time of the
second hearing, the Employer still had a contract
with Plumbers, its contract with Sheet Metal Work-
ers had been canceled because of the failure to pay
the $2,040 assessment
With respect to the grievance procedure under
which Sheet Metal Workers received the $2,040 as-
sessment of damages against the Employer, we note
that Plumbers was not a party to that grievance pro-
cedure and, in fact, was denied admittance to the
panel hearing which resulted in the assessment
against the Employer In such circumstances, we
deem the panel's de facto award of work to Sheet
Metal Workers, which resulted in the assessment
against the Employer, to be of no significance here
None of the above factors favors the award of the
work to one union over the other
2 Employer and area practice
The Carrier unit involved is of recent origin and
the Employer had not had the opportunity to install
this unit in any building in the past
anisms nor provisions for disputes resolution were contained in the inter
im agreement
Recourse to the entire text of the interim agreement however reveals
that at the time of the work assignment giving rise to this dispute in 1972
the two unions had in fact agreed on a disputes reconciliation mechanism
in their interim agreement Further the Employer had orally agreed at the
outset of the job which gave rise to this work dispute to agree with the
unions determinations of work disputes in accord with their interim agree
ment We have already expressed our view in United Association of Journey
men and Apprentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada Local Union No 447 AFL-CIO (Capitol Air Condition
ing Inc) 224 NLRB 985 ( 1976) that the unions 1956 interim agreement
may constitute an agreed upon method of disputes reconciliation sufficient
to warrant quashing a notice of hearing Thus with the Employers agree
ment to adhere to that agreement in the present case we would ordinarily
be disposed to quash the notice of hearing again on the strength of Capitol
Air Conditioning supra
We shall not do so here however in view of the peculiar nature of this
dispute particularly the lengthy delay in this case (the dispute having arisen
in August 1972) the fact that we have already had two hearings on this
matter with the entire text of the 1956 interim agreement not being submit
ted until the second hearing and the fact that we have already quashed the
notice of hearing in the initial proceeding
i3 international Association of Machinists Lodge No 1743 AFL-CIO
(J A Jones Construction Company) 135 NLRB 1402 (1962)
LOCAL UNION NO 418 SHEET METAL WORKERS 997
With regard to area practice, the record discloses
that the Carrier unit involved here had not been in-
stalled in any project by any employer within the
Huntington, West Virginia, geographical area up to
the time of the dispute
We thus find that the factors of employer and area
practice are not relevant here
3 Skills involved
employees represented by Plumbers are entitled to
perform the work in dispute This award is supported
by the Employer's assignment of the work to employ-
ees represented by Plumbers, the relative efficiency
that results, and the concurrent economies of such an
assignment In making this award, we assign the
work to employees represented by Plumbers rather
than to that organization itself or its members Our
determination is limited to the particular controversy
which gave rise to this proceeding
The evidence revealed that the installation work
does not require a skill which is better demonstrated
by either employees represented by Sheet Metal
Workers or by employees represented by Plumbers
Employees belonging to either union are sufficiently
skilled so as to satisfactorily perform the work in dis-
pute and thus this factor does not favor the assign-
ment of the work to one union over the other
4 Employer assignment and efficiency and
economy of operation
At the Holiday Inn jobsite, the Employer was
awarded a substantial amount of plumbing work but
it was not awarded any sheet metal work Thus, on
the Holiday Inn jobsite, the Employer employed no
members of Sheet Metal Workers but did employ
employees represented by Plumbers It would there-
fore appear that the efficiency of the Employer's op-
erations would have been impaired by a composite
crew since the employees represented by Plumbers
were on the jobsite continually while Sheet Metal
Workers employees were not Employees represented
by Plumbers were readily available to perform the
disputed work as the job progressed with a minimum
of delay and interruption If a composite crew had
been used, Sheet Metal Workers employees would
have had to have been dispatched from other jobsites
to perform the work Allowing employees repre-
sented by Plumbers to perform the disputed work
when it conveniently fit in with their regularly sched-
uled work promoted the Employer's efficiency and
economy of operation and favored the assignment to
employees represented by Plumbers 14
Conclusions
Upon the entire record, and after full consider-
ation of all relevant factors here involved, we believe
14 See Plumbers and Steamfitters Local Union No 157 of the United Associ
ation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada (Curry Construction Company) 193 NLRB
542 543 (1971)
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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute
I Employees of Young Plumbing & Supply, Inc,
who currently are represented by Local 521 United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, are entitled to per-
form the work of installation, including the hanging,
of Carrier Weathermaster Model 36 R-202-1 units at
the Holiday Inn, Huntington, West Virginia, jobsite
2 Local Union No 418, Sheet Metal Workers In-
ternational Association, AFL-CIO, is not and has
not been entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require Young
Plumbing & Supply, Inc, to assign the above-de-
scribed work to its members or employees it repre-
sents
3 Within 10 days from the date of this Decision
and Determination of Dispute, Local Union No 418,
Sheet Metal Workers International Association,
AFL-CIO, shall notify the Regional Director for Re-
gion 9, in writing, whether or not it will refrain from
forcing or requiring the Employer, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign the
work in dispute to employees represented by it rather
than to employees represented by Local Union No
521, United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, AFL-CIO
MEMBER JENKINS, concurring
As is apparent from my dissent in Capitol Air Con-
ditioning, Inc, 224 NLRB 985, I reject much of
my colleagues' reasoning I do, however, concur in
the result they have reached, and would note only
that I would have done so when the dispute was first
before us some 2 years ago