Local Union No. 80, Sheet Metal Wrkrs.

National Labor Relations Board - Board Decisions

Jun 23, 1971

191 N.L.R.B. 447 (N.L.R.B. 1971)

LOCAL UNION NO. 80, SHEET METAL WRKRS.
Local Union No. 80 , Sheet Metal Workers' Interna-
tional Association , AFL-CIO and N. I. I. Labora-
tory Furniture Inc. and its subsidiary , Norlab Cor-
poration and Local Union No . 337, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO. Case 7-CD-255
June 23, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding pursuant to Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by the Employer, N. I. I. Laboratory
Furniture Inc. and its subsidiaryNorlab Corporation,
alleging that Local Union No. 80, Sheet Metal Work-
ers' International Association, AFL-CIO, violated
Section 8(b)(4)(D) of the Act. A hearing was held
March 16, 1971, before Hearing Officer William C.
Schaub, Jr. The parties, with the exception of Local
Union No. 337, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, appeared at the hearing
and all parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to
adduce evidence bearing on the issues.' Thereafter, the
Respondent and the Employer filed briefs in support of
their positions.
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 powers
in connection with this case to a three-member panel.
The rulings of the Hearing Officer made at the hear-
ing are free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this proceeding, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
N. I. I. Laboratory Furniture Inc., and its wholly
owned subsidiary, Norlab Corporation, are corpora-
tions, with headquarters in the State of New York,
engaged in the manufacture, sale, and installation of
laboratory furniture throughout the United States;
their gross annual revenues exceed $20 million. The site
of the present dispute is Detroit, Michigan, where the
Employer is engaged in work on a subcontract valued
at approximately $1.3 million, which will involve the
I Respondent's counsel left the hearing before any evidence was adduced
on the ments of the underlying dispute, thereby effectively waiving cross-
examination . Counsel asserted that he was familiar with the evidence which
would be introduced and expressed his confidence in the Employer's wit-
nesses.
447
direct shipment to the jobsite from points outside the
State of materials valued in excess of $50,000. The
Respondent and the Employer have stipulated, and we
find, that the Employer is engaged in commerce within
the meaning of the Act and that it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE:LABOR ORGANIZATIONS INVOLVED
Local Union No. 80, Sheet Metal Workers' Interna-
tional Association, AFL-CIO, and Local Union No.
337, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer has a subcontract let by the Barton-
Marlow Company , a general contractor located in Oak
Park, Michigan , to manufacture and install laboratory
furniture in connection with construction work at
Wayne State University . At least part of the work in-
volves the installation of fume hood cabinets , which the
Employer assigned to its employees who were members
of the Carpenters. On December 23, 1970, two of the
Respondent 's agents, Martin Tibbs and Joseph Rivard,
claimed the installation and related work on the fume
hoods for the Respondent 's members.
On January 15 , 1971, Tibbs and Rivard threatened
to picket the jobsite and the Respondent engaged in a
strike and picketing at the jobsite from February 9 to
12, 1971, when work on the fume hoods was suspended
and the picketing ceased. The Respondent concedes
that an object of the picketing was to force the Em-
ployer to accept a decision by the National Joint Board
for Settlement of Jurisdictional Disputes awarding the
work to the Respondent . As a result of the picketing,
employees of Carlson Brothers Company, a sheetmetal
contractor , who are represented by the Respondent,
withheld their services from February 9 to 12, 1971.
B. The Work in Dispute
The dispute arises from the assignment of unloading,
uncrating, raising, placing, and installing fume hoods
at the Wayne State University Medical Campus Basic
Instruction Facility, Detroit, Michigan. The hoods are
attached to blowers on the roof and are used to remove
fumes which may be generated during chemical experi-
ments. The hood goes on top of abase which is attached
to a cabinet to form an integrated system. Both the
cabinet and the base are installed by carpenters.
191 NLRB No. 87
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Contentions of the Parties
The Sheet Metal Workers moved the Board to quash
the notice of Section 10(k) hearing on the ground that
the jurisdictional dispute has been determined by the
National Joint Board for the Settlement of Jurisdic-
tional Disputes , Building and Construction Industry.
In support of its motion the Sheet Metal Workers as-
serts that the Employer , by virtue of its contract with
the Carpenters , is bound by the decision of the National
Joint Board . Alternatively , the Sheet Metal Workers
contends that the Employer is not a necessary party
under Section 10(k) and that , since both it and the
Carpenters are bound by the National Joint Board deci-
sion, the notice of hearing should be quashed.
The Employer argues that the Board has rejected the
view that an employer is not a party within the meaning
of Section 10(k) and that its contract with the Carpen-
ters does not bind it to the procedures of the National
Joint Board for the Settlement of Jurisdictional Dis-
putes . The Employer urges that the Respondent's mo-
tion be denied and, further , that the Employer 's experi-
ence indicates that fume hoods can most economically,
quickly, and properly be installed by the Carpenters
and the work in dispute should be awarded to em-
ployees represented by the Union.
D. Applicability of the Statute
The charge alleges violations of Section 8(b)(4)(D) of
the Act. The record shows that on December 23, 1970,
a claim was made for the disputed work by the Sheet
Metal Workers and that on January 15, 1971, the Sheet
Metal Workers threatened to picket the jobsite unless
the disputed work was assigned to it. Respondent en-
gaged in a strike and picketing at the jobsite from Feb-
ruary 9 to 12, 1971, when work on the fume hoods was
suspended. As a result of, the picketing, employees of
Carlson Brothers Company, who were members of Re-
spondent or represented by it, withheld their services.
The Respondent asserts that the dispute has been
adjusted by the National Joint Board for the Settlement
of Jurisdictional Disputes and that there is no reasona-
ble cause to believe that Section 8(b)(4)(D) of the Act
has been violated, and moves that the notice of Section
10(k) hearing be quashed. In support of its motion, it
argues that the Employer is bound to the procedures of
the National Joint Board by its contract with the Car-
penters and, alternatively, that the Employer is not a
necessary party to the settlement of a jurisdictional
dispute, that both of the Unions involved have an
agreed-upon method for the settlement of such dis-
putes, and that the dispute has, in fact, been settled.
The Respondent urges Plasterers Local 79 v.
N.L.R.B. [Southwestern Construction Co.],, 440 F.2d
174 (C.A.D.C., 1970), cert. granted 401 U.S. 907, in
support of its position. There the court held that an
employer was not a necessary party to the settlement
of a jurisdictional dispute. The Board, however, has
continued to adhere to its position that the employer
controlling the work assignment and the rival unions or
groups of employees involved are all "parties to the
dispute." Lathers Union Local 104 (The Blaine Petty
Company), 186 NLRB No. 70. We find that the Em-
ployer is a necessary party to the settlement of the
dispute.
The Employer has an agreement with the United
Brotherhood of Carpenters and Joiners of America
which provides in its second paragraph that "no change
is to be made in the hours, wages and other conditions
established or agreed upon in any locality." The local-
ity is covered by an agreement between the Carpenters
District Council of Detroit and various employer as-
sociations, which provides that the parties, with the
exception of the Associated General Contractors or
America, Detroit Chapter, Inc., are bound by the
Procedural Rules and Regulations of the National
Joint Board for the Settlement of Jurisdictional Dis-
putes, Building and Construction Industry. The Em-
ployer is a specialty contractor, not a general contrac-
tor, and is not eligible for membership in the
Associated General Contractors. The Respondent
argues that the Employer is bound by the decision of
the National Joint Board by virtue of its agreement to
accept local conditions.
There is no indication in the record that the Carpen-
ters or the Employer intended the contract to have such
an effect and the contract itself lends no additional
support to this interpretation. The first paragraph of
the agreement provides in part that the Employer:
... agrees to recognize the jurisdictional claims of
the United Brotherhood of Carpenters and Joiners
of America, to work the hours, pay the wages and
fringe benefits and observe the lawful working
conditions (including lawful union shop agree-
ments) established or agreed upon....
This suggests that the parties considered jurisdictional
claims to be separate from working conditions and,
further, that "conditions" in the second paragraph re-
fers to working conditions. We believe that the refer-
ence in the second paragraph to "conditions" is far too
ambiguous to be construed as a commitment by the
Employer to be bound to the decision of the National
Joint Board. We conclude, therefore, that there is not
sufficient evidence to establish that the parties to the
contract intended that the Employer be bound by the
Procedural Rules and Regulations of the National
Joint Board for the Settlement of Jurisdictional Dis-
putes and that the Employer is not so bound. Since we
have found that the Employer is a "party to the dis-
pute" and that it was not bound by the decision of the
National Joint Board, Respondent's motion to quash is
denied.
LOCAL UNION NO . 80, SHEET METAL WRKRS.
Based on the entire record we conclude that there is
reasonable cause to believe that there has been a viola-
tion of Section 8(b)(4)(D) of the Act and that the dis-
pute is properly before us for determination.
E. Merits of the Dispute
1. Collective-bargaining agreement
The only relevant collective-bargaining agreement is
that between the Employer and the United Brother-
hood of Carpenters and Joiners of America. The agree-
ment recognizes the jurisdictional claims of the Car-
penters but does not mention work on fume hoods.
Neither of the Unions involved has received certifica-
tion by the Board as representative of the Employer's
employees.
2. Company and industry practices
Testimony established that, with one exception, it is
the Employer's practice to assign the work which is in
dispute here to carpenters regardless of the area of the
country involved and that previous work in Michigan
had been performed by carpenters. Work on fume
hoods in the Chicago area, however, is assigned to a
composite crew of carpenters and sheetmetal workers.
3. Relative skills
Based on the record before us we can only conclude
that the sheetmetal workers lack the experience, tools,
and skills necessary to perform much of the work in-
volved in the installation of fume hoods in contrast to
the carpenters. Charles Cusumano, the Employer's in-
stallation supervisor, and the only witness, testified that
sheetmetal workers must be specially trained to per-
form the work, that the skills involved are basically
carpentry skills, and that many of the tools involved are
those used by carpenters and not by sheetmetal work-
ers.
4. Efficiency of operations
The uncontradicted testimony of the Employer's in-
stallation supervisor establishes that the work may be
performed more rapidly with fewer employees, and at
lower cost if it is done by carpenters.
5. Action of the National Joint Board
Since the Employer has not agreed to be bound by
the decision of the National Joint Board for the Settle-
ment of Jurisdictional Disputes, its award of the work
449
involved in this proceeding is only one of the factors
which we must consider in assigning the disputed work.
In all the circumstances, including the absence of any
evidence showing the basis for the award by the Na-
tional Joint Board, it can not receive controlling
weight.'
Conclusions
Based on the entire record and after full considera-
tion of all relevant factors, we shall assign the work in
dispute to the carpenters. The Employer's assignment
of this work conforms with its past practice, best uti-
lizes the skills involved, and is conducive to efficient
operation of its business. In making this determination
we are assigning the disputed work to employees who
are represented by Local Union No. 337, United Broth-
erhood of Carpenters and Joiners of America, AFL-
CIO, but not to that Union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board hereby makes
the following determination of the dispute:
1. Employees employed by N. I. I. Laboratory Furni-
ture Inc. and its subsidiary , Norlab Corporation,
Hicksville , New York, who are currently represented
by Local Union No. 337, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, are entitled
to the unloading, uncrating , raising , placing, and in-
stalling of fume hoods at the Wayne State University
Medical Campus Basic Instruction Facility, Detroit,
Michigan.
2. Local Union No. 80, Sheet Metal Workers ' Inter-
national 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 the Employer
to award the above work to its members or employees
it represents.
3. Within 10 days from the date of this Decision and
Determination of Dispute , Local Union No. 80, Sheet
Metal Workers ' International Association , AFL-CIO,
shall notify the Regional Director for Region 7, in
writing, whether it will or will not refrain from forcing
or requiring the Employer, by means proscribed by
Section 8(b)(4)(D), to award the work in dispute to its
members rather than to employees represented by the
Carpenters.
' Sheet Metal Workers Local 541 (Kingery Construction Co), 172 NLRB
No 108