Sheet Metal Workers' Intl Assn.

National Labor Relations Board - Board Decisions

Feb 15, 1972

195 N.L.R.B. 412 (N.L.R.B. 1972)

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers' International Association,
AFL-CIO, Local No. 99 and The Brower Company
and Acoustical Applicators Local No. 1982, affil-
iated with the United Brotherhood of Carpenters and
Joiners of America , AFL-CIO. Case 19-CD-185
February 15, 1972
ing of the Act, and that it will effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS
Sheet Metal Workers and Acoustical Applicators are
labor organizations within the meaning of Section 2(5)
of the Act.
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
Section 8(b)(4)(D) charge filed on June 8, 1971, by The
Brower Company (referred to as the Employer). The
charge alleged that on or about June 8, 1971, Sheet
Metal Workers' International Association, AFL-CIO,
Local No. 99 (referred to as Sheet Metal Workers),
engaged in certain activity proscribed by the Act with
an object of forcing or requiring the assignment of
certain work described below to employees represented
by Sheet Metal Workers rather than to employees
represented by Acoustical Applicators Local No. 1982,
affiliated with the United Brotherhood of Carpenters
and Joiners of America, AFL-CIO (referred to as
Acoustical Applicators).
A hearing was held at Seattle, Washington, on Octo-
ber 4, 5, and 6, 1971, before Hearing Officer Joseph L.
Davis. All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to produce evidence bear-
ing on the issues. Thereafter all parties 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 au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board makes
the following findings:
I THE BUSINESS OF THE EMPLOYER
The Employer is a State of Washington corporation
with its principal place of business located at Seattle,
Washington, where it is engaged in, among other
things, the installation of acoustical ceilings and parti-
tions. During the past year the Employer purchased
supplies and materials valued in excess of $50,000 from
sources outside the State of Washington. We find that
the Employer is engaged in commerce within the mean-
195 NLRB No. 81
III THE DISPUTE
A. Background and Facts of the Dispute
Morrison Knudson is the prime contractor at the
passenger expansion project of the Seattle-Tacoma,
Washington, International Airport. It awarded a sub-
contract to the Employer for the installation of acousti-
cal ceilings. About 80 percent of the ceiling design
requires the use of the Donn Paraline product. The
remainder of the project will be completed with a stan-
dard acoustical ceiling product. The Sheet Metal
Workers claims only the Donn Paraline work. At the
time of the hearing, the Employer had completed 50
percent of its commitment.
The Employer is engaged in the business of installing
acoustical ceiling systems. It employs a permanent
work force of 25-30 acoustical workers. They are mem-
bers of the Acoustical Applicators. Almost all of the
Employer's acoustical ceiling jobs are wholly per-
formed by such members. It employs no sheet metal
workers.
On February 1, 1971, the Employer assigned the
work of installing the Donn Paraline ceiling at the
Seattle-Tacoma airport to its own employees who are
members of the Acoustical Applicators. Thereafter
these employees began work on the job. In early April
1971, Glen L. Arnold, business representative of Sheet
Metal Workers, asked the Employer's manager of
acoustical sales, Robert L. Kopp, about employing a
composite crew of sheet metal workers and acoustical
workers. Kopp said that he would let Arnold know
after he talked to other company officials. However,
Kopp made no change in the job assignment.
Thereafter, about June 8, Austin St. Laurent, execu-
tive secretary of the Seattle Building and Construction
Trades Council, informed the prime contractor's resi-
dent manager (Earl C. Gregg) and the Employer's
president (Edward E. Saberhagen) that the jobsite
would be picketed if the Employer did not assign the
ceiling installation work to sheet metal workers. St.
Laurent claimed the work on the basis of a decision of
the National Joint Board for the Settlement of Jurisdic-
tional Disputes.
On June 9, Sheet Metal Workers' Business Repre-
sentative Arnold told representatives of the Carpenters'
District Council, with which Acoustical Applicators is
affiliated, that the Sheet Metal Workers would picket
SHEET METAL WORKERS ' INTL ASSN. 413
the airport job if the Employer did not abide by the
Joint Board decision . On June 22 , employees of F. B.
Gardner, one of the subcontractors at the airport job,
who were also Sheet Metal Workers ' members , ceased
work , apparently in support of their fellow sheet metal
workers who were seeking the ceiling installation work.
B. The Work in Dispute
The disputed work involves the installation of Donn
Paraline acoustical ceilings at the passenger expansion
project of the Seattle -Tacoma , Washington , Interna-
tional Airport.
C. The Contentions of the Parties
1. The Employer contends that Sheet Metal Workers
violated Section 8(b)(4)(D ) of the Act by exerting coer-
cive pressure upon it, upon the prime contractor (Mor-
rison Knudson), and upon Acoustical Applicators to
compel the Employer to assign the installation of Donn
Paraline acoustical ceilings , previously assigned by the
Employer to its own employees represented by Acous-
tical Applicators , to sheet metal workers represented
by Sheet Metal Workers. On the merits , the Employer
contends that the work has been assigned to its em-
ployees represented by the Acoustical Applicators and
such work should properly be awarded to them.
2. At the outset of the hearing Sheet Metal Workers
moved to quash the Notice of Hearing on two grounds:
the Board does not have probable cause to believe a
violation has occurred ; and a decision of the National
Joint Board for the Settlement of Jurisdictional Dis-
putes is dispositive of the work assignment issue. The
Hearing Officer referred the motion to the Board. On
the merits , Sheet Metal Workers contends that the dis-
puted work belongs to its members on the basis of
historical area practice . It also asserts that the reason
for the Employer's assignment to members of Acousti-
cal Applicators was to avoid employment of minority
apprentices.
3. Acoustical Applicators maintains that the Em-
ployer 's assignment to its members is supported by
substantially the same factors relied on by the Em-
ployer.
D. Applicability of the Statute
Before the Board proceeds with a determination of
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.
On June 8 , 1971, Executive Secretary St. Laurent of
the Seattle Building and Construction Trades Council,
with which Sheet Metal Workers is affiliated , informed
both the prime contractor 's manager and the Em-
ployer' s president that the installation of the Donn
Paraline ceiling on the airport job should be assigned
to sheet metal workers in accord with the decision of
the Joint Board and, if not, picketing would occur.
Sheet Metal Workers ' Business Representative Arnold
communicated the same message the next day to a
representative of the Acoustical Applicators . On June
22, Sheet Metal Workers ' members, who were em-
ployees of another contractor on the site , ceased work,
seemingly to protest the Employer 's work assignment.
Sheet Metal Workers argues that these facts do not
show reasonable cause to believe the statute was vi-
olated because there is no showing that St. Laurent was
speaking for Sheet Metal Workers . It further argues
that there is no showing that it was responsible for the
walkout by subcontractor B. F. Gardner 's sheet metal
employees, a walkout which occurred after the charge
was filed . As to the statement made by its agent, Ar-
nold, Sheet Metal Workers argues that it is no basis for
the charge because it occurred after the charge was filed
and was not made to the Employer but only to Carpen-
ters ' Council or Acoustical Applicators ' local repre-
sentatives.
The Board is only required to find that there is rea-
sonable cause to believe that Section 8(b)(4)(D) has
been violated before making a determination of the
dispute out of which the alleged unfair labor practice
has arisen . Sheet Metal Workers is a member of the
Seattle Building and Construction Trades Council. The
Council 's executive secretary , St. Laurent , pressed the
Sheet Metal Workers' claim to the disputed work. St.
Laurent was himself a member of Sheet Metal Work-
ers, a previous business agent of that Union, and a
delegate from it to the Council . St. Laurent 's threat to
picket made to the Employer's president and to the
resident manager of the prime contractor unless the
disputed work was assigned to Sheet Metal Workers,
Sheet Metal Workers ' Representative Arnold's similar
statement to Carpenters' District Council representa-
tives , and Sheet Metal Workers ' members ' subsequent
walkout on another part of the job being performed by
a subcontractor , establish a prima facie case supporting
the alleged violation.
We find on the above evidence , and the entire record,
that there is reasonable cause to believe that Section
8(b)(4)(D) has been violated and that the dispute is
properly before the Board for determination under Sec-
tion 10(k) of the Act.
Sheet Metal Workers also contends that the Re-
gional Director erred in not dismissing the charge prior
to the hearing because the parties had agreed upon a
voluntary method of adjustment of the dispute . It relies
on the decision of the National Joint Board for the
Settlement of Jurisdictional Disputes . The Joint Board
issued a decision after referral from the Sheet Metal
Workers . Neither Acoustical Applicators nor the Em-
ployer was a party to the proceeding leading to the
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision . Acoustical Applicators had withdrawn from
the Joint Board and the Employer was never a party to
it. The Board is charged with the resolution of these
jurisdictional disputes "unless the parties to the under-
lying dispute settle the case or agree upon a method for
settlement ." N.L.R.B. v. Plasterers' Local No. 79, 404
U.S. 116. All of the necessary parties had not agreed to
be bound by the Joint Board 's decision or any other
voluntary method of adjustment for the settlement of
the dispute within the meaning of Section 10(k) of the
Act. Accordingly, we find no merit in this contention
of Sheet Metal Workers.
For the foregoing reasons, we deny the Sheet Metal
Workers' motion to quash the Notice of Hearing.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to all relevant factors . Inter-
national Association of Machinists, Lodge No. 1743 (J
A. Jones Construction Co.), 135 NLRB 1402, 1410-11.
Only two other Donn Paraline acoustical systems
have been installed in the area . These were located at
Seattle Community College and Ingram High School.
The Employer was the contractor on the Seattle Com-
munity College job. On both jobs the work was per-
formed by carpenters , principally acoustical workers.
Sheet Metal Workers' Respresentative Arnold tes-
tified that his Union had not claimed the Community
College job because he discovered the assignment to
acoustical workers when the job was 75-80 percent
completed , and that Employer Manager Kopp told him
that the type of ceiling job was singular and would not
be used again soon . Sheet Metal Workers asserts, in'its
brief, that the Donn Paraline system is considered
metal pan ceiling work , which sheet metal workers
have installed in the Seattle area for many years. How-
ever, the record shows that the Donn Paraline system
represents a further development of the standard or
conventional acoustical ceiling which Sheet Metal
Workers has not previously claimed.
We find that the company and industry practices
favor assignment to acoustical workers.
1. Collective-bargaining agreement
The Employer has a collective -bargaining agreement
with the Acoustical Applicators . It has entered into
such contracts with that labor organization since 1952,
when Acoustical Applicators was formed . It has no
collective-bargaining agreement with Sheet Metal
Workers.
The Employer 's continuing collective-bargaining
agreements with Acoustical Applicators is a factor fa-
voring assignment of the work to employees repre-
sented by Acoustical Applicators.
2. Company and industry practices
The Employer has been in the business of installing
acoustical ceilings for many years . It has a nucleus of
25-30 carpenter employees , who are members of
Acoustical Applicators , to perform this work. Other
employers in the area who are in a like business also
employ principally members of Acoustical Applica-
tors .' The Employer employs no sheet metal workers.
The Donn Paraline ceiling is a suspended acoustical
ceiling . The standard acoustical ceiling is a suspended
grid system with acoustical pads dropped into the grid
squares. The Donn Paraline ceiling is composed of sub-
stantially the same component parts as the standard
acoustical ceiling in general use in the area. It differs
principally in that its fascia styling is longitudinal
rather than square . This design is accomplished by
snapping metal beams onto the acoustical frames.
Cf Lathers Union Local 104, etc (The Blaine Petty Company), 186
NLRB No 70 at sec III, E
3. Relative skills
Acoustical Applicators members have devoted
themselves exclusively to suspended acoustical ceiling
work for more than 20 years . Their jobs require special-
ized experience and skill . They undergo a 4-year ap-
prenticeship which includes extensive training and ex-
perience in acoustical work. Acoustical Applicators
has more than 100 members trained to perform ceiling
installation work.
Sheet Metal Workers has no formal training course
in ceiling installation . Members select their own spe-
cialty after an initial apprenticeship in their basic field.
They gain their skill on their own , working on a job.
Sheet Metal Workers ' Representative Arnold testified
that the Union had 20 or 25 members qualified to in-
stall the type of ceiling in dispute. He named about a
half dozen men, of whom two or three appear to have
been Acoustical Applicators ' members. The metal pan
work which sheet metal workers have done in the past
is declining because of the relatively higher cost of such
ceilings.
The ceiling installation work itself is a precision op-
eration . It requires perfect alignment in relation to
floors below and to other installations such as lights
and decorative and structural parts which enter or join
the ceiling. Alignment is a primary concern in install-
ing ceilings to meet unconstructed walls as well as in
meeting the portions of the ceiling that are worked on
separately by other contractors performing construc-
tion work. Acoustical Applicators ' members on the job
have been exercising these skills to the satisfaction of
the prime contractor.
SHEET METAL WORKERS' INTL ASSN. 415
The factor of training and skill thus supports an
award to acoustical workers.
its own employees. We therefore find no merit in the
Sheet Metal Workers' contention.
4. Efficiency and economy
The Donn Paraline ceiling system is only a portion
of the ceiling to be installed at the jobsite. Sheet Metal
Workers claims only that portion. If the Employer
were to divide the work between acoustical workers
and sheet metal workers, the former would be idle some
part of the working time while they waited for sheet
metal workers to clip on the beam or pan. They would
have to wait to do layout, leveling, or aligning of the
suspension system.
Sheet Metal Workers contended at the hearing that
its members could perform all the duties required.
Apart from whether their skills match those of the
trained acoustical workers, the record casts doubt on
whether Sheet Metal Workers has enough trained
members to perform the work. Its representative tes-
tified that at any one time he could call on eight work-
ers, and the Employer would be free to hire any others
needed if Sheet Metal Workers could not supply them.
The Employer maintains a permanent nucleus of 25-30
acoustical workers. Its work force on the airport
project is 20. The Employer thus has no assurance of
a continuous, available work force from Sheet Metal
Workers.
We find that the factors of efficiency and economy
favor an award to acoustical workers.
5. Allegation of racial bias
Sheet Metal Workers contends that the Employer
was considering assignment to employees represented
by Sheet Metal Workers but did not do so because it
would have been required to employ minority sheet
metal apprentices. There is no evidence to support that
contention. The Employer assigned the work to its own
acoustical workers in February 1971. In April, Sheet
Metal Workers claimed the work. At that time its rep-
resentative, Arnold, advised the Employer's Manager
Kopp that court decisions had ordered Sheet Metal
Workers to refer minority apprentices. Kopp testified
that court orders applicable to Sheet Metal Workers
did not influence the Employer's officials in not chang-
ing the work assignment, made 2 months earlier. The
record shows that the Employer made, and continued,
the assignment in accord with usual practice to utilize
CONCLUSIONS
On all the evidence, we determine this jurisdictional
dispute in favor of acoustical workers and find that
employees of The Brower Company represented by
Acoustical Applicators, rather than sheet metal work-
ers represented by Sheet Metal Workers, are entitled to
perform the work of installing Donn Paraline acousti-
cal ceilings at the passenger expansion project of the
Seattle-Tacoma, Washington, International Airport.
The collective-bargaining agreement, company and
area practices, relative skills, and efficiency and
economy of operations are factors which cause us to
reach this result. In making this determination, we are
awarding the work in issue to the Employer's em-
ployees represented by Acoustical Applicators, and not
to Acoustical Applicators or its members. The deter-
mination is limited to the particular dispute which gave
rise to this proceeding.
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, the National Labor Relations Board
hereby makes the following determination of dispute:
1. Employees who are employed by The Brower
Company as acoustical workers and represented by
Acoustical Applicators Local No. 1982, affiliated with
the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, are entitled to perform the work
of installing Donn Paraline acoustical ceilings at the
passenger expansion project of the Seattle-Tacoma,
Washington, International Airport.
2. Sheet Metal Workers' International Association,
AFL-CIO, Local No. 99, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force or
require The Brower Company, Seattle, Washington, to
assign such work to individuals represented by that
labor organization.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Sheet Metal Workers' Inter-
national Association, AFL-CIO, Local No. 99, shall
notify the Regional Director for Region 19, in writing,
whether it will refrain from forcing or requiring The
Brower Company, by means proscribed by Section
8(b)(4)(D), to assign the work in dispute to employees
represented by Sheet Metal Workers, rather than to
employees represented by Acoustical Applicators.