Sheet Metal Workers International Association, Local Union No. 107

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1200 (N.L.R.B. 1985)

1200 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD -
Sheet Metal Workers International Association;
LocaLUnion No. 107 and The Lathrop Compa-
ny and International Association of Bridge,
Structural and Ornamental Iron Workers, Local
No. 55 and' Fred Christen & Sons Company and
Sheet Metal Workers International Association,
Local Union No. 6. Case 8-CD-408
30 September 1985
DECISION AND DETERMINATION OF
DISPUTE - -
BY CHAIRMAN DOTSON AND. MEMBERS
DENNIS AND JOHANSEN
The charge in this Section 10(k) proceeding was
filed 3 June 19851 by The Lathrop Company
(Lathrop), alleging that the Respondent, Sheet
Metal Workers International Association, Local
Union No. 107 (Sheet Metal Workers Local 107),
violated Section 8(b)(4)(D) of the National Labor
Relations Act by engaging in proscribed activity
with an object of forcing Lathrop not to withdraw
the subcontract for certain work from Fred Chris-
ten & Sons Company (Christen), and forcing Chris-
ten to continue'to assign such work to employees it
and Sheet Metal Workers International Associa-
tion, Local Union No. 6 (Sheet Metal Workers
Local '6) represent rather than to employees repre-
sented by International Association of Bridge,
Structural and Ornamental Iron Workers, Local
No. 55 (Iron Workers Local 55). The hearing was
held 27 June before Hearing Officer Joseph I.
Natale.
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
Lathrop, an Ohio corporation, is engaged in con-
struction management for various new and renova-
tive construction projects in. the State of Ohio,
where it annually purchases and receives goods
valued in excess of $50,000 directly from points lo-
cated outside the State of Ohio.
Christen, also an Ohio corporation, has a place
of business in Toledo, Ohio, and is engaged in' roof-
ing and sheet metal fabrication and installation in
the State of Ohio. It annually purchases and re-
ceives goods valued in excess of $50,000 directly
from points located outside the State of Ohio. '
' All dates are in 1985 unless otherwise indicated
276 NLRB No..134
The parties stipulate,, and we-find, that Lathrop
and Christen are engaged in commerce 'within the
meaning of Section 2(6) and (7) of the Act and that
Sheet Metal Workers Locals 107 'and 6 and Iron
Workers Local 55 are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Lathrop is the construction manager for the
Whirlpool Corporation for the construction. of the
Distribution Center and Conveyor Enclosure at
Whirlpool's -Clyde, Ohio facility. Lathrop performs'
no construction work and it does not employ con-
struction workers at the site. Pursuant to its con-
tract with Whirlpool, it is required to award con-
tracts for the construction work to the lowest re-
sponsible bidder.
The work in dispute involves siding and decking.
The siding work is the installation of field assem-
bled in panels . The siding generally arrives
at the jobsite in crates or bound in straps. The
inner panel is installed with clips, screws, or bolts
or in some cases by weld. Insulation is then insert-
ed and the exterior panel is installed on top of that.
The installation of roof decking involves welding
or screwing metal sheets to steel or wood framing.
On 4 April Lathrop awarded the siding portion
of the work to Christen, whose bid, of $1,485,186
was approximately $60,000 lower than the next
lowest responsible bid. Lathrop awarded the deck-
ing portion to Christen on 7 June for an additional
$42,000. Whirlpool approved the decision to award
the contract to Christen pursuant to the contract
between Lathrop and Whirlpool.
Christen has a continuing bargaining relationship
with Sheet Metal Workers Local 6. Christen is cur-
rently signatory - to a collective -bargaining agree-
ment with- Sheet Metal Workers Local 6 effective I
July 1984 through 30 June 1986. Christen is also
signatory with Sheet Metal Workers Locals 6 and
107 to the Specialty Contracting Agreement of the
Sheet Metal Industry, also effective 1 July 1984
through 30 June 1986. The jobsite is outside Local
6's jurisdiction, but within Local 107's jurisdiction.
Sheet metal contractors are allowed under their
contracts with their "home" locals to perform
work in the jurisdiction of other Sheet Metal locals
and are permitted to employ two employees from
the home area. All additional labor, however, must
come from the local in whose jurisdiction the work
is being performed. Local 107 began supplying em-
ployees to Christen for the Whirlpool job approxi-
mately 1 May. There is only one employee from
Local 6's jurisdiction employed on the site. Chris-
SHEET METAL WORKERS LOCAL 107 (LATHROP CO) '
ten has no collective-bargaining relationship with
Iron Workers Local 55.
Iron Workers Local 55 has a collective-bargain-
ing'-agreement with Lathrop requiring Lathrop to
subcontract work within Local 55's jurisdiction to
employers who have signed agreements with Local
55. - -
At.the end of April, Harvey Takacs, Iron Work-
ers Local 55 business manager, called Fred Chris-
ten, president of Christen, and informed Christen
that he could : have a - problem if he used Sheet
Metal Workers-represented employees to perform
the work.
During the week of 22 April Takacs called
Robert Maxwell, Lathrop's executive vice presi-
dent and general manager. He asked Maxwell if the
siding contract had been awarded to Christen.
Maxwell said it had been, and Takacs replied that
the work was the Iron Workers work and he
would have to' do everything he could to see that
they get the work. He also said that he understood
the roof deck was also going to be awarded to
Christen but that he would not "make an affair out
of the roof deck" if he could get some resolution
on the siding.
After this conversation, Maxwell discussed with
Christen the possibility of withdrawing the con-
tract from Christen. Christen's position was that
the Company was qualified and the job was within
its line of work. Christen testified that if Lathrop
reawarded the contract it "would be subjected to
legal action."
• Takacs wrote a-letter dated 21 May to the Asso-
ciated General Contractors requesting implementa-
tion of the grievance procedure, and alleging that
Lathrop violated article I, paragraphs 5 and 6, and
article XXVI, paragraph 197, of the agreement be-
tween Lathrop and Local 55. Paragraphs 5 and 6
are broad jurisdictional claims to metal construc-
tion work. By letter dated 23 May, Takacs amend-
ed the grievance to remove the references,to para-
graphs 5 and 6. Paragraph 197 is an agreement by
Lathrop to use Iron Workers-represented employ-
ees to perform the work claimed by Iron Workers
on jobs where Lathrop is the employer, or to sub-
contract such work to other employers who use
Iron Workers-represented employees.
On learning about the possibility that • Christen
might- be removed from the job, Sheet Metal
Workers Local 107's business manager wrote a
letter to Lathrop dated 30 May, stating in part:
Local #107 has reason to believe that your -
firm has been and is being pressured by repre-
sentatives of the iron workers craft to have
this work withdrawn. from Fred Christen &
Sons and reawarded to a - subcontractor who
1201
will perform the same using employees in the
iron workers craft. You are hereby advised
that if your firm withdraws from Fred Chris-
ten & Sons the work awarded under-these sub-
contracts or any of it and reassignes [sic] or
reawards it so as to be -performed -by iron
• workers or employees in any other craft,
Local #107 will take appropriate action to
protect its interest including, but not limited
to, picketing-at the Whirlpool plant in Clyde,
Ohio, to advise that your firm is unfair to em-
ployees in the sheet metal trade.
On 3 June Lathrop filed an unfair-labor practice
charge against Local 107, alleging that the letter's
object was to force Lathrop not to withdraw the
subcontract from Christen.2
B. Work in Dispute
The disputed work involves erecting built-in-
place sandwich sheet metal panels on the exterior
sides and the application of corrugated metal sheets
for decking purposes' on the roof of the Distribu-
tion Center and Conveyor Enclosure at the Whirl-
pool Corporation manufacturing facility in- Clyde,
Ohio. -
C. Contentions of the Parties
Lathrop, Christen, and Sheet •' Metal ' Workers
Locals 107 and 6 contend that Sheet Metal Work-
ers Local 107 violated Section 8 (b)(4)(D) of the
Act by its letter dated 30 May threatening to
picket and take other unspecified reprisal against
Lathrop if it reassigned the disputed work to an
Iron Workers contractor . Lathrop and' Christen
also claim -that there is, no agreed-upon method to
voluntarily adjust the dispute; -
Lathrop , Christen,, and Sheet Metal Workers
Locals 107 and 6 contend that Iron ' Workers Local
55 has made and continues to make a claim to the
disputed work, and has not disclaimed the work.
They- contend that Takacs ' statements to- Maxwell
constitute a claim to the work . They further argue
that Iron Workers pursuit of its grievance against
Lathrop also constitutes a claim for the - work.
Lathrop asserts that the grievance represents an at-
tempt by -the Iron Workers to coerce Lathrop to
breach its contract with Christen and award the
contract to a contractor who employs Iron Work-
ers-represented - employees or constitutes economic
2 On-28 May Lathrop filed an unfair labor practice charge against Iron
Workers Local 55 based on the filing of the grievance On 19 June the
Regional Director found that further proceedings were not warranted be-
cause the filing of a grievance alone, without picketing or threat of pick-
eting, does not constitute force or coercion within the meaning of Sec
8(b)(4)(D) of the Act
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercion to force Lathrop to pay double for the
disputed work's completion.
Iron Workers Local 55 contends that it never
made any oral demand for the work and that the
pending grievance is not a demand for the work. It
claims that the grievance is merely an effort to
safeguard its agreement with Lathrop. Iron Work-
ers argues that no dispute exists meeting the re-
quirements of Sections 10(k) and 8(b)(4)(D) of the
Act, but assuming' arguendo the existence of a ju-
risdictional dispute, the Board's order should be
limited to Lathrop and Sheet Metal Workers Local
107.
_ Lathrop, Christen, and Sheet Metal Workers
Locals 107 and 6 contend that the disputed work
should be assigned to employees represented by
Sheet Metal Workers Locals 107 and 6 on the basis
of collective-bargaining agreements, company pref-
erence and past practice, area practice, relative
skills, and economy and efficiency of operation.
Sheet Metal Workers Local. 107 and 6 additionally
urge that the factors of Joint Board determinations
and interunion agreements also favor awarding the
work to Sheet Metal Workers-represented employ-
ees.
D. Applicability of the Statute
Before the Board proceeds with a determination
of a 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) has been violated
and that there is no agreed-upon method for the
voluntary, adjustment of the dispute.
`According to Lathrop's executive vice president
and general manager , Maxwell, Iron Workers
Local 55 Business Manager Takacs told him that
the work was the Iron Workers' and he would
have to do everything he could to see that they get
the work. He also stated that he would not "make
an affair out of the roof deck" if he could get some
resolution on the siding. Takacs denied making a
demand for the" work.3 Takacs later filed a griev-
ance against Lathrop, alleging violations of the ju-
risdictional claims sections of the contract as well
as the provision requiring Lathrop' to subcontract
work to other employers who use- Iron Workers-
represented employees. Takacs later amended the
grievance to remove the references to the jurisdic-
tional claims.
Iron Workers contends that there is no jurisdic-
tional dispute because it is merely attempting to en-
force its, contract with Lathrop and is not claiming
31n 10(k) proceedings, a conflict in testimony does not prevent the
Board from finding evidence of reasonable cause and proceeding with a
determination of the dispute Laborers Local 334 (C H Heist Corp), 175
NLRB 608,1609 (1969)
the disputed work. Contrary to the Iron Workers,
however, we find that by filing the grievance
against Lathrop for subcontracting the work to a
contractor who does not use Iron Workers-repre-
sented employees, Iron Workers was, in effect,
making a demand for the work.4 We find that
Takacs' statements to Maxwell, as well,as his filing
of the grievance, constitute a demand for the work.
Although Iron Workers continues to- contend
that it is not seeking the disputed work, we find
that the Iron Workers has not effectively dis-
claimed5 the work. Iron Workers pursuit of the
grievance against Lathrop for violation of the con-
tract's subcontracting provision is inconsistent with
its claim that it is not seeking the work. 6
After learning of the Iron Workers grievance
against Lathrop, Sheet Metal Workers Local 107's
business manager wrote a letter to Lathrop threat-
ening to picket at the Whirlpool plant if Lathrop
withdrew the contract from Christen and reas-
signed the work such that it may be performed by
Iron Workers-represented employees. Under settled
Board law, there is reasonable cause to believe that
a violation of Section 8(b)(4)(D) has occurred if a
labor organization which represents employees
who are assigned the disputed- work threatens to
picket or otherwise coerces .an employer to contin-
ue such an assignment.' We find that there is rea-
sonable cause to believe that Sheet Metal Workers
Local 107's threat to picket violated Section
8(b)(4)(D)•
All parties except the Iron Workers8 stipulated,
and we find, that-there is no agreed-upon method
for voluntary adjustment of the dispute.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
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 ofjudgment based
on common sense and experience ; reached -by bal-
ancing the factors' involved in a particular case.
4 See Electrical Workers IBEW Local 486 (New England Power), 219
NLRB 692, 693 (1975)
5 Iron Workers states that it is not filing a disclaimer because it never
claimed the work As we have found that Iron Workers did in fact claim
the work, we treat Iron Workers position at the hearing as an attempted
disclaimer
s Iron Workers Local 350 (Cornell & Co), 271 NLRB 1182, 1183 (1984)
7 Laborers Local 118 (D H Johnson Co), 262 NLRB 1147, 1149 (1982),
Iron Workers Local 350, supra at 1183
e Iron Workers refused to stipulate that there is no agreed-upon
method for voluntary adjustment of the dispute because of its position
that it has not requested the work and therefore no jurisdictional dispute
exists -
SHEET METAL WORKERS' LOCAL 107 (LATHROP CO.)
V
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certifications and collective-bargaining
agreements
There is no evidence that the Board has certified
either Sheet Metal Workers Local 107 or 6 or Iron'
Workers Local 55 as the collective-bargaining rep-
resentative of Christen's employees.
Christen is, however, party to a collective-bar-
gaining agreement between the Toledo Area Sheet
Metal and Roofing Contractors Association and
Sheet Metal Workers Local 6 effective 1 July 1984
through 30 June 1986. Article I of that agreement
covers the disputed- work. Christen's agreement
with Local 6 covers work within Local 107's juris-
diction. Christen is also signatory to the Specialty
Agreement" with Locals 6 and 107, which covers
the work in dispute.
Christen is not signatory to, any collective-bar-
gaining agreement with Iron Workers Local 55.
Accordingly, this factor favors an award of the
disputed work to Sheet Metal -Workers-represented
employees.
2. Company preference and past practice
Christen assigned the disputed work to Sheet
Metal Workers-represented employees and has indi-
cated satisfaction with their performance. Christen
has, since 1934, always assigned such work to
Sheet Metal Workers-represented employees. Ac-
cordingly, this factor, favors an assignment -of the
disputed work to those employees.
3. Area and industry practice
Local 107 presented evidence of hundreds of as-
signments of siding and decking work to Sheet
Metal Workers-represented employees in Ohio,
Michigan, West Virginia, Pennsylvania, and New
York. Siding work similar to the work in dispute
has, however, also been performed by employees
represented by Iron Workers. According to Lin-
coln Baird, Sheet Metal Workers International rep-
resentative, companies under an agreement with
Iron Workers generally use Iron Workers-repre-
sented employees, and companies under an agree-
ment with Sheet Metal Workers generally use
Sheet Metal Workers-represented employees. Some
Iron Workers contractors, however, subcontract
the work to contractors who use employees repre-
sented by Sheet Metal Workers. Baird testified that
the industry trend is for employers increasingly to
use Sheet Metal Workers-represented employees to
perform work similar to the siding work in dispute.
1203
Baird also testified that the decking work is com-
monly installed by employees represented by Sheet
Metal Workers. The parties stipulated that within
Sheet Metal Workers Local 6's jurisdiction em-
ployees represented by Local 6 perform siding and
decking, work, but also from time to time Iron
Workers-represented employees perform the same
function. As the area and industry practice appears
to be mixed, this' factor .does not favor an assign-
ment of the disputed work to employees represent-
ed by either Union. .
4. Relative skills
Christen employees represented by Sheet Metal
Workers Locals 107 and 6 possess sufficient skills
to perform the disputed work. Christen, Lathrop,
and Whirlpool are satisfied with Sheet Metal
Workers-represented employees' work quality, pro-
ductivity, and efficiency. The work can be done by
any sheet metal worker who has completed his ap-
prenticeship and the work does not require any
skills above that level of training.
On the other hand, Lincoln Baird testified that
Iron Workers-represented employees also have the
requisite skills to perform the disputed work.
Accordingly, this factor does not favor an as-
signment of the disputed work to employees repre-
sented by either Union.
5. Economy and efficiency of operation
The record fails to disclose that one group of
employees is more efficient than the other. There-
fore, this factor does not favor an award of the dis-
puted work to employees represented by either
Union.
6. Impartial Jurisdictional Disputes Board
determinations
Sheet Metal Workers Local 107 introduced evi-
dence of a number of IJDB decisions awarding
siding" and decking work similar to the disputed
work to Sheet Metal Workers-represented employ-
ees. The IJDB based the roof decking awards on a
Joint Board "decision of record" of 21 August
1948, and the siding awards on trade practice. Iron
Workers Local 55 did not present evidence of any
Joint Board decisions in favor of Iron Workers-rep-
resented employees. All the awards Sheet Metal
Workers Local 107 submitted, however, applied
only to the job in question and are not.dispositive
of the instant case. Moreover, the IJDB is no
longer operative, thus diminishing the precedential
value of the decisions.9 We therefore find that this
9 Laborers Local 449 (Modern Acoustics), 260 NLRB 883, 888 (1982)
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factor does not favor an award of the disputed
work to employees represented by either Union.
7. Interul ,,-n agreements
In 1966 Sheet Metal Workers International Asso-
ciation and International Association of Bridge,
Structural, and Ornamental Iron Workers entered
into an interim understanding which stated that
roof decking , if 10 gauge or lighter (similar to the
disputed work), is the work of Sheet Metal Work-
ers-represented employees , and siding work similar
to the work in dispute would be assigned by the
contractor responsible for the installation. Sheet
Metal Workers Local 107 also presented evidence,
however, that in 1975 the Iron Workers general
president abrogated the agreement . The Board has
not assigned significant weight to such agreements
where all the parties have not agreed to abide by
them .1 ° Accordingly , this factor does not favor an
award of the disputed work to employees repre-
sented by either Union.
io Asbestos Workers Local 66 (API, Inc.), 267 NLRB 56, 58 ( 1983).
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Sheet
Metal Workers Locals 107 and 6 are entitled to
perform the work in dispute . We reach this conclu-
sion relying on collective -bargaining agreements
and company preference and past practice. In
making this determination, we are awarding the
work to employees represented by Sheet Metal
Workers Locals 107 and 6 , not to those Unions or
their members . The determination is limited to the
controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
Employees of Fred Christen & Sons Company
represented by Sheet Metal Workers International
Association, Local Union Nos. 107 and 6 are enti-
tled to perform the work of erecting built -in-place
sandwich sheet metal panels on the exterior sides
and the application of corrugated metal sheets for
decking purposes on the roof of the Distribution
Center and Conveyor Enclosure at the Whirlpool
Corporation manufacturing facility in Clyde, Ohio.