Sheet Metal International, Local 28

National Labor Relations Board - Board Decisions

Jun 27, 1966

159 N.L.R.B. 1423 (N.L.R.B. 1966)

SHEET METAL INTERNATIONAL, LOCAL 2 8 1423
sented by Local 358. In making this determination, which is limited
to the controversy that gave rise to this proceeding, we are not assign-
ing the work to Local 358, or its members.
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 hereby
makes the following determination of the dispute:
1. Employees employed by Utilities Line Construction Co., Inc.,
,currently represented' by Local 358, International Brotherhood of
Electrical Workers, AFL-CIO, are entitled to operate the excavation
- and earth-moving equipment in connection with the preparation of
tower footings on the Manitou-to-Oyster Creek transmission line
located near Oyster Creek Nuclear Power Plant, Forked River, New
-Jersey,
2. Local 825, International Union of Operating Engineers, AFL-
CIO, and Peter Weber, president and business manager, are not
entitled, by means of conduct proscribed by Section 8(b) (4) (D) of
the Act, to force or require Utilities Line Construction Co., Inc., to
assign the aforementioned work to its members.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 825, International Union of Operating Engi-
neers, AFL-CIO, and Peter Weber, president and business manager,
shall notify the.Regional Director for Region 4, in writing, whether
or not they will refrain from forcing or requiring Utilities Line Con-
struction Co., Inc., by means proscribed by Section 8 (b) (4) (D) of the
Act, to assign the work in dispute to employees represented by Oper-
ating Engineers rather than to employees represented by Local 358.
Sheet Metal International Association , Local 28, AFL-CIO and
Nu-Fiberglass Duct Corporation . Case 2-OD-344. June 27,
1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, as amended, following charges filed by Nu-
Fiberglass Duct Corporation, herein called Nu-Fiberglass or the
Employer, alleging that Sheet Metal International Association, Local
28,-AFL-CIO, herein called Local 28 or the Respondent, had threat-
ened, coerced, or restrained persons engaged in commerce or in an
159 NLRB No. 132.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
industry affecting commerce, and induced and encouraged individuals
employed by other persons and contractors in industries affecting
commerce to engage in a strike or refusal in the course of their
employment to perform any services, with an object of forcing or
requiring the Employer to assign the work of installing fibreglass
air-conditioning ducts to employees who are represented by the
Respondent rather than to employees who are represented by Local
806, International Brotherhood of Teamsters, herein called Local 806
or the Intervenor.
A hearing was held before Hearing, Officer Alan Randall of the
National Labor Relations Board, on March 8, 10, 11, 14, 28, 29, 30,
and 31, and April 1 and 5, 1966. 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. The
rulings of the Hearing Officer made at the hearing are free from prej-
udicial error and are hereby affirmed. The Employer and the Inter-
venor filed briefs which have been duly considered by the Board.
. Pursuant to -the provisions of Section 3 (b) of the Act, the Board
has delegated; its' powers in connection with this case to a three-
member panel [Members Fanning, Brown, and Zagoria].
Upon the entire record, in this case, the Board makes the following
.-findings:,.
I. THE BUSINESS OF THE EMPLOYERS-7
Nu-Fiberglass Duct Corporation, a New York corporation orga-
nized in November 1965, has its principal place of business in Mt.
-Vernon, New York, and maintains other places of business at various
construction sites in and around New York City, where it is engaged in
the,'; fabi ication and 'installation of fibreglass air-conditioning duct
systems. Since`Ithe installation in dispute, during November-
December 1965, is the first contract undertaken by the Employer, the
only commerce figures available are the contract price of $6,770 and
indirect out-of-State purchases of approximately $1,350'.
Advanced Climate Corporation, the general contractor on the proj-
ect in question, is a New York corporation organized in February
1965, with its principal place of business in New York City and other
places'of business at various constructiow sites' in and 'around New
York City,,where it is engaged in providing mechanical ,engineering
and contracting and related services in the building and construction
industry. Advanced commenced business 'operations, in May, 1965,
.•and in the.10 months} preceding the hearing that it had been in oper
ation; it had gross revenues approximating $150,000 and-had pur-
chased approximately $40,000 worth of, air conditioning equipment,
heating equipment, cooling towers and controls directly from sources
outside New York State. ' .
SHEET METAL INTERNATIONAL, LOCAL 28 ' 1425
Barney's Clothes, Inc., a New York corporation engaged in the retail
sale and distribution of men's clothing, sold, during the past year,%
products valued in excess of $500,000, of which products valued in
excess of $50,000 were delivered directly to it from States other than
New York. All parties stipulated and we find that Barney's is
engaged in commerce within the meaning of the Act.
Even if the business of Nu-Fiberglass and Advanced, standing
alone, do not meet the Board's own requirements for the assertion of
jurisdiction, it is clear that Barney's, one of the secondary employers
affected by Respondent's unlawful conduct, is engaged in commerce
within the meaning of the Act, and we, therefore, assert jurisdiction
herein.'
U. THE LABOR ORGANIZATIONS INVOLVED
Respondent and the Intervenor are labor organizations within the
meaning of Section 2(5) of the Act.
M. THE DISPUTE
A. The work in issue
The work in dispute here is the fabrication and installation of a
fibreglass air-conditioning duct system for a second floor salesroom
of a men's clothing store.
B. The basic facts
The Employer, who has a subcontract to install a fibreglass air-
conditioning duct system on the second floor of a building occupied by
Barney's, a retail men's clothing store in New York City, has a
collective-bargaining agreement with the Intervenor, and does not
employ sheet metal workers. In mid-November 1965, Cannavo, sole
owner of the Employer, and two employees commenced the installation
of the duct system. On December 1, 1965, Pasquinucci, Respondent's
business agent, went to the jobsite and was told that Nu-Fiberglass
was performing, the installation with employees represented by the
Intervenor. - Pasquinucci stated that they had no business doing that
type of work since they were not in the Building Trades Council and
that duct work should be installed by Local 28. At a Decem-
ber 3 meeting at the jobsite, Respondent's representatives told
representatives of Barney's and Advanced that the fiber glass duct
work should be done by Local 28 members, that Advanced. should
not have given it to Local 806, that Local 28 does installation of fibre-
glass duct work and that, unless Nu-Fiberglass was taken off the job
and replaced by a Local 28 contractor, Respondent would picket
I Local 173, Wood, Wire and Metal Lathers' International Union, AFL-CIO (Newark cE
Essex Plastering Co.), 121,NLRB 1094, 1097.
243-084-67=vo1 159-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-Barney's and see to it that other trades refused to work until the
replacement was effected. It was agreed that the parties would meet
again on the following Monday, December 6, when a representative of
Local 806 would also be present. Respondent's representatives agreed
to the adjournment but insisted that Nu-Fiberglass cease work at
that time. Advanced's representative told Nu-Fiberglass not to stay
on the job that afternoon and the latter ceased work for the day.
When the parties met the following Monday, Respondent's repre-
sentatives repeated the demands made on Friday and again threatened
to picket the jobsite. Advanced issued a stopwork order to the
Employer and work on the duct system again ceased. On Decem-
ber 15, Advanced gave the Employer a written order to resume work
at Barney's after 4:30 p.m., when the other trades were not on the job.
For several days, the Employer proceeded with the installation after
the usual working hours but then returned to regular daytime hours
in order to speed up the work. On about December 20 or 21, Pas-
quinucci spoke with representatives of Barney's and Advanced and
repeated his statements of early December that Nu -Fiberglass must
be replaced by a Local 28 contractor or the jobsite would be picketed.
Later, on about December 22, representatives of Barney's, Ad-
vanced, Nu-Fiberglass, New York Sheet Metal, a sheet metal con-
tractor, and Murray, a fibreglass contractor, had a meeting at Bar-
ney's at which a representative of Advanced outlined a compromise
arrangement he had worked out with. Pasquinucci the previous day.
Under this arrangement the Employer would complete the job but
would use employees of the sheet metal contractor, who were members
of Local 28, to do the work. Cannavo telephoned the business agent of
Local 806 and was told that Local 806 would not go along with the
arrangement. When Cannavo reported this conversation, Pasquin-
ucci said that Nu-Fiberglass should get off the job altogether and,
unless a Local 28 contractor finished the job, Local 28 would picket
it. A few days after this meeting, representatives of the union, which
represented Barney's salesmen and representatives of Local 28, spoke
to Barney's representative , who thereupon instructed Advanced to
order Nu -Fiberglass off the job. Advanced issued a final stopwork
order to Nu-Fiberglass on December 27, at which time approximately
50 percent of the job had been completed. On December 29 or 30,
Advanced orally subcontracted the remaining work to Royal Sheet
Metal, whose employees used whatever fibreglass ducts had been left
at the jobsite by Nu-Fiberglass and completed the rest of the installa-
tion with sheet metal.
C. Contentions of the parties
Although Respondent did not submit a brief, it argued on the
record that it was entitled to the disputed work on the basis of an
SHEET METAL INTERNATIONAL, LOCAL 28 1427
agreement or understanding reached in a telephone conversation
between Pasquinucci and a foreman for Davin, a now defunct sheet
metal contracting company which had initially submitted the lowest
bid on the work and of which the owner of Nu-Fiberglass was
formerly a part owner. Otherwise, Respondent's contentions are
confined to repeated assertions that it has jurisdiction over all types
of duct work and its insistance that all such work be done by con-
tractors who have contracts with Respondent. Respondent further
contends that its members are competent to perform the disputed
work, that they possess the tools required in the installation, and that
sheet metal workers' skills are essential to the proper installation of
metal parts used in fiber glass duct systems.
The Intervenor contends that its members have been performing
installations of fibreglass ducts since the introduction and approval
of fibreglass as a component of air-conditioning systems, and that
they have been trained for that specific work. In addition, it argues
that Respondent's members, while skilled in sheet metal work, have
neither the training and ability nor the tools to perform fibreglass
installations ; that its collective-bargaining agreement with the
Employer entitles it to the work in question; and that the perform-
ance of the work by its members is in accord with local and area
practice.
The Employer, in addition to adopting the contentions of the
Intervenor, notes that it assigned the disputed work to members of
the Intervenor and is highly pleased with their performance; that
fibreglass is considerably more economical than sheet metal ; that
metal accessories used in fibreglass ducts are prefabricated, easily
obtained from many local supply sources, and constitute a small part
of the installation; and that Respondent could point to none of its
contractors who had ever performed a fibreglass installation.
D. - Applicability of the statute
Charges herein allege a violation of Section 8 (b) (4) (D) of the
Act. The record shows, and Respondent does not deny, that, on
December 3, 1965, Respondent's representatives informed representa-
tives of Advanced and Barney's that unless Nu-Fiberglass were
removed from the job and replaced by a Local 28 contractor, Respond-
ent would place a picket line around Barney's and see to it that no
other trades would work at the site until Respondent's demands were
complied with. Respondent's demand that the Employer be replaced
was repeated at several subsequent meetings of the parties and, on or
about December 27, 1965, after representatives of both the Respond-
ent and the union representing the salesmen threatened to picket the
site, Barney's directed Advanced to order the Employer off the job.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that there is reasonable cause to believe that a violation of
Section 8(b) (4) (D) has occurred and that the dispute is properly
before the Board for determination 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
relevant factors. The following factors are asserted in support of
the claims of the parties herein :
1. Collective-bargaining agreements
The Employer and the Intervenor have a collective-bargaining
,agreement covering the employees to whom the Employer assigned
the work in dispute. Respondent has no contract with the Employer,
who does not utilize sheet metal workers in its operations . Neither
Respondent's nor the Intervenor's collective-bargaining agreement
refers specifically to fibreglass duct installation.
2. Company, area , and industry practice
As this is the first fibreglass installation undertaken by the
Employer since its organization, there is no significant evidence of
company practice. It appears, however, that the Intervenor repre-
sents the employees of approximately a dozen contractors engaged in
the fabrication and installation of fibreglass duct systems in and
around New York City. Respondent, on the other hand, does not
represent the employees of any contractors who do fibreglass installa-
tion. Assignment of the disputed work- to the employees of Nu-
Fiberglass is, therefore,-in accord with area and industry practice.
3. Efficiency and economy of operation
Respondent's sheet metal workers, although highly skilled in metal
work, have had neither training nor experience in fibreglass installa-
tion while employees of the Employer have undergone training in a
school operated by one of the principal manufacturers of fibreglass.
Special tools used in fibreglass fabrication and installation are not
used by . sheet metal workers but are standard equipment for Nu-
Fiberglass employees, who have been specially trained in their use.
Chiefly because fibreglass ducts are self-insulating, thereby obviating
the use of additional thermal and acoustical, fibreglass installation
frequently employed in sheet metal duct systems , and also because of
the initial cost of materials and labor, fibreglass ducts are consid-
erably more economical than sheet metal ducts. .
SHEET METAL INTERNATIONAL, LOCAL 28 1429
F. Conclusions as to the merits of the dispute
Upon consideration of all pertinent factors appearing in the entire
record, we shall assign the work in dispute to the employees of Nu-
Fiberglass who are represented by the Intervenor. Because of their
special training they are more skilled in the performance of the work
in dispute and they have performed it to the satisfaction of the
Employer, who desires to retain them on the job. The present assign-
ment " of the disputed work is consistent with the Intervenor's
collective-bargaining agreement with the Employer, it conforms to
area and industry practice, and it conduces to efficiency and economy
of operation. We conclude that the Employer's assignment of the
work to its fiber glass installation employees should not be disturbed.
We shall, accordingly, determine the existing jurisdictional dispute
by deciding that fibreglass installation employees are entitled to the
work in dispute. In making this determination, we are assigning the
disputed work to the employees of the Employer who are represented
by the Intervenor but not to that Union or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
this proceeding, the Board makes the following determination of dis-
pute pursuant to Section 10 (k) of the Act :
1. Employees employed by Nu-Fiberglass Duct Corporation, who
are represented by Local 806, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, are
entitled to perform the work of fabricating and installing an air-
conditioning fibreglass duct system in a retail men's clothing store
operated by Barney's Clothes, Inc., at Seventh Avenue and 16th
Street in New York, New York.
2. Sheet Metal International Association, Local 28, AFL-CIO, is
not entitled, by means proscribed by Section 8 ('b) (4) (D) of the Act,
to force or require the Employer, Barney's Clothes, Inc., or Advanced
Climate Corporation, to assign the above work to sheet metal workers.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Sheet Metal International Association, Local 28,
AFL-CIO, shall notify the Regional Director for Region 2, in writ-
ing, whether it will or will not refrain from forcing or requiring the
Employer, Barney's Clothes, Inc., or Advanced Climate Corporation,
by means proscribed by Section 8(b) (4) (D), to assign the work in
dispute to sheet metal workers rather than to employees of the
Employer, who are represented by Local 806.