Sheet Metal Workers, Local 312

National Labor Relations Board - Board Decisions

Dec 21, 1971

194 N.L.R.B. 660 (N.L.R.B. 1971)

660 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association, Local
Union No. 312, AFL-CIO and Elias Morris & Sons
Co. and United Brotherhood of Carpenters and
Joiners of America , Local No. 184, AFL-CIO. Case
27-CD-127
December 21, 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 Elias Morris & Sons Co.' alleging
that Sheet Metal Workers International Association,
Local Union No. 312, AFL-CIO,2 had violated
Section 8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing Morris to
assign the work in dispute to Local 312 rather than to
employees of Morris represented by United Brother-
hood of Carpenters and Joiners of America, Local
No. 184, AFL-CIO.3 Pursuant to notice, a hearing
was held before Hearing Officer Merrill M.
McLaughlin on July 13, 14, and 15, 1971. 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, Morris and Local 312 filed
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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
affirmed.4 The Board has considered the briefs and
the entire record in this case and hereby makes the
following findings:
I. THE BUSINESS OF THE COMPANY
Morris, a Utah corporation , is engaged in the
installation of acoustical tile, roof decks, computer
floors, floor coverings , and hardwood floors in the
Salt Lake City, Utah, area. It annually purchases and
receives goods and materials from outside the State of
Utah valued in excess of $50,000.
1 Herein called Morris.
2 Herein called Local 312
3 Herein called Local 184
4 The Hearing Officer referred to the Board Local 312's motion to
dismiss the instant charge. In view of our decision and determination
herein, Local 312's motion to dismiss is hereby denied.
The parties stipulated, and we find, that Morris is
engaged in commerce within the meaning of the Act
and it will effectuate the purposes of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local 312
and Local 184 are labor organizations within the
meaning of the Act.
III. THE DISPUTE
A. Background and Facts
In October 1969 Morris received a $650,000
contract to install "Soundlock" metal-faced acousti-
cal ceiling tile, as well as a small amount of nonmetal-
faced acoustical tile, at the Latter Day Saints (LDS)
Church Office Building in Salt Lake City. The
building is being erected as a joint venture by prime
contractors W. B. Johnson & Co., W. W. Clyde & Co.,
and Christiansen Bros., Inc.
Morris' carpenters began installing the
"Soundlock" ceiling in April 1970; the work is
scheduled for completion by July 1972. About
February 23, 1971,5 Local 312's business agent
demanded of Morris that it assign the acoustical
ceiling work to that Union's sheetmetal workers since
the installation of "Soundlock" ceilings was a task
which had consistently been awarded to Sheet Metal
Workers members by the National Joint Board for
Settlement of Jurisdictional Disputes (NJB).6 Morris
rejected the demand. Thereafter, on March 17, at
Local 312's request, Carpenters and Sheet Metal
Workers International representatives met at the
jobsite in an attempt amicably to settle the jurisdic-
tional dispute. They resolved, in the absence of a
representative from Morris, that the work belonged to
members of Local 312 and that as of Monday, March
22, carpenters represented by Local 184 would no
longer perform the disputed work. Morris thereafter
refused to abide by the decision and, on March 22, its
Local 184-represented carpenters continued to work
on the "Soundlock" ceiling. Local 312's job steward
on the project led a picket line on March 22 at the
building site; the pickets carried signs announcing
that Morris was "unfair" to them. All craftsmen left
the job by noon, when Morris removed its carpenters.
During the strike, a Christiansen Bros. representative
was informed by Local 312's job steward that the
picket signs would come down when carpenters left
By letter dated July 29, 1971, Local 312 requested oral argument. The
request is denied as the record adequately presents the issues and positions
of the parties
5 All dates hereinafter are 1971 unless otherwise indicated
6 Local 312 concedes that the installation of nonmetal-faced acoustical
tile is Local 184's work.
194 NLRB No. 100
SHEET METAL WORKERS , LOCAL 312
the job. Local 312's business agent attempted to end
the walkout; he asserted then that the strike by other
contractors' sheetmetal workers was not sanctioned
by Local 312. The picketing ceased after carpenters
left on March 22 and construction work resumed
within a day.
On April 2, Morris executed a collective-bargaining
agreement with Local 184 which, inter alia, canceled
its July 1963 contract with that Union. By the terms of
the 1963 agreement, Morris, a nonmember of Associ-
ated General Contractors of America (AGC), agreed
to comply with all the terms, including wages, hours,
and working conditions, of the AGC, Utah Chapter-
Carpenters District Council of Utah labor agreement
dated July 8, 1963, and any amendments and
renewals thereof. The 1963 AGC-District Council
agreement had been replaced by a contract effective
July 14, 1969, which, like its predecessor,7 required
employer and union to abide by any decision or
interpretation of the NJB. However, on October 7,
1969, the AGC informed the District Council that,
since the 1948 agreement creating the NJB had
expired, the contract article binding its members to
the NJB was null and void. On April 2 Morris agreed
to comply with the July 14, 1969, agreement on
condition that:
The Employer by this agreement is in no way
subject to the decisions of or the jurisdiction of the
National Joint Board for the settlement of Juris-
dictional Disputes, or bound by any other volun-
tary method for the determination of jurisdictional
disputes.
On April 6, Morris was informed by the NJB that
the board would consider the jurisdictional dispute
between Locals 312 and 184 on April 14 or 15. Morris
was asked to send a full description of the work in
dispute to the NJB. By telegram dated April 12,
Morris advised the NJB that it would not be bound by
any NJB decision and it protested the holding of a
hearing since the Board was considering conducting
the instant 10(k) proceeding. On April 16, the NJB
informed Morris that on the basis of trade practice the
work in dispute "shall be assigned to sheetmetal
workers." Morris informed Local 312 that it would
not comply with the NJB award. On April26, the NJB
directed Morris to comply immediately with the
decision.
On April 27, a Local 312 representative met with
Morris' vice president to discuss the possibility of
Morris' using a composite crew of carpenters and
sheetmetal workers to install the "Soundlock" tile.
While nothing was resolved then, Morris did sign an
"Extension of Labor Agreement" with Local 312
which "extended for a period of sixty (60) days or
661
until a new agreement is reached, whichever comes
first" the May 1, 1967, Local 312-Utah Sheet Metal
Contractors Association labor agreement. Morris was
not a member of that association, had no sheetmetal
workers then in its employ, and had never signed a
Sheet Metal Workers bargaining contract. Morris
only executed the "Extension" to assure Local 312
that if Morris hired sheetmetal workers they would
receive union scale wages retroactively to May 1,
when the master agreement expired. Also, by signing
the "Extension" Morris assured itself, and others at
the building site, that Local 312 would not strike the
LDS Church Office Building project on May 1.
The general contractor on May 12 ordered Morris
to resume the "Soundlock" installation work. When
work resumed on May 17, Morris added two Local
312 sheetmetal workers to its crew of carpenters.
While the record is unclear whether the sheetmetal
workers had been hired permanently or on a 2-week
trial basis, under either circumstance Morris found
that the sheetmetal workers' productivity was too low
and, on May 28, it discharged them. On June 1, Local
312 pickets appeared at the jobsite with signs stating,
"Elias Morris Company carpenters refuses to abide
by National Joint Board for Settling Jurisdictional
Disputes decisions. This is information only." Local
312 concedes that it was responsible for the June 1-4
picketing which caused construction work to stop.
When Morris removed its carpenters, the picketing
ceased and work continued. Thereafter, Morris
resumed "Soundlock" installation work at the site
using carpenters only. Local 312, on June 28,
informed the Regional Director for Region 27 that
picketing would resume in 10 days. On July 16, the
United States District Court for Utah temporarily
enjoined Local 312's picketing activity.
B. Work in Dispute
The dispute involves the assignment of the task of
installing "Soundlock" metal-faced acoustical ceiling
tile at the LDS Church Office Building in Salt Lake
City. As noted above, Local 312 concedes that Morris'
carpenters represented by Local 184 are entitled to
install nonmetal-faced acoustical tile.
C. Contentions of the Parties
Morris contends that Local 312 violated Section
8(b)(4)(D) of the Act by striking, or inducing or
encouraging the employees of various contractors at
the LDS Church Office Building site to strike, with an
object of compelling Morris to assign the
"Soundlock" installation work to sheetmetal workers
represented by Local 312 rather than to carpenters
7 There is nothing in the record to indicate that the July 1963 AGC
agreement did not have a similar clause.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by Local 184. It further asserts that
Morris, as a nonmember signatory of the AGC
contract, is not bound by the NJB award of April 16
since prior thereto the AGC, Utah Chapter informed
the Carpenters, District Council that in view of the
NJB's expiration the AGC contract clause binding its
members to the NJB was null and void. Further,
Morris argues that, its April 2 agreement with Local
184 specifically exempted it from NJB coverage
before the NJB award issued on April 16. Finally,
Morris contends that its April 27 agreement with
Local 312, which was designed to avoid a strike on
May 1 and insure the retroactive application of union
wages if Morris were to employ sheetmetal workers,
did not bind it to the NJB. Morris would have the
Board determine the instant dispute in favor of Local
184's carpenters on the basis of past practice, its work
assignment, the extant labor agreement between the
parties, stability of the labor force, efficiency and
economy, skills involved, and area practice.
Local 312 asserts that Morris is bound to comply
with the NJB's April 16 award and, therefore, it urges
the Board either to quash the notice of hearing or
award the work in dispute to - sheetmetal workers
represented by Local 312. -It further contends that the
agreement executed by Morris and Local 184 on April
2 is ineffective to oust the NJB of jurisdiction since the
dispute arose before Morris purportedly withdrew
from NJB coverage. Moreover, Local 312 argues, the
agreement entered into on April 27 between it and
Morris binds the Employer to the NJB. Finally, Local
312 would have the Board determine the dispute on
the merits in favor of its members on the basis of
skills, efficiency, economy, and industry practice.
Local 184's position at the hearing was substantially
the same as that of Morris.
D. Applicability of the Statute
Before the Board may proceed with the determina-
tion 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) of the Act has been
violated.
Local 312 concedes that it was responsible for the
June 1 picketing at the LDS Church Office Building
site which resulted in the cessation of all construction.
Local 312 also informed the Regional Director for
Region 27 on June 28 that it intended to resume such
strike activity within 10 days. The pickets carried
signs on June 1 protesting Morris' failure to abide by
the NJB's award of April 16. We find that these
circumstances clearly establish a prima facie case
supporting the alleged violation of Section 8(b)(4)(D)
of the Act.
It is argued by Local 312, however, that the dispute
is not properly before the Board because Morris
agreed to be bound by the NJB determinations,
including the instant April 16 NJB award. We
disagree. In July 1963, Morris executed a labor
agreement with Local 184 by which it agreed to
comply with all the terms of AGC-Carpenters District
Council contract. One of the clauses therein bound
the parties to abide by the awards of the NJB, created
in May 1948. In July 1969, a new AGC-Carpenters
contract was negotiated which contained the same
NJB clause. Thereafter, on September 30, 1969, the
agreement which in May 1948 created the NJB
expired and, on October 7, 1969, the Utah Chapter of
the AGC informed the Carpenters that the NJB
contract clause was null and void. While another NJB
was thereafter created, there is no evidence that
Morris, a nonmember of AGC, then agreed to be
bound by its decisions. Accordingly, we find that
Morris was not bound by the April 16 decision of the
newly created NJB even though its labor relations are
otherwise governed by the 1969 AG -Carpenters
agreement.8
Local 312 further asserts that the "Extension of
Labor Agreement" executed by Morris and Local 312
on April 27 had the effect -of binding Morris to the
April 16 NJB award of the disputed work exclusively
to sheetmetal workers. We disagree. It is clear that at
the time of the NJB decision Morris had no
contractual relationship with Local 312 which'could
have bound Morris to the NJB. Thereafter, despite
the NJB award of the work exclusively to sheetmetal
workers, on April 27 Morris' vice president met with a
Local 312 representative and they discussed using a
composite crew of carpenters and sheetmetal workers
to resolve the dispute and complete the installation
work. Although Morris did not then reach a full
understanding with Local 312's representative con-
cerning the composite crew, it agreed to execute the
"Extension" agreement to assure Local 312 that
Morris would pay any sheetmetal workers it might
hire union scale wages retroactive to May 1, when the
master agreement expired. By signing the agreement,
Morris also assured itself and other contractors at the
LDS building site that Local 312 would not engage in
a strike on May 1.
We find nothing in the above to warrant the
inference that by signing the extension agreement on
April 27 Morris- intended to bind itself to the April 16
NJB award. We note, moreover, that Local 312's
expressed willingness to resolve the dispute by
8 Bricklayers, Masons and Plasterers' International Union of America, the April 2 agreement between Morns and Local 184 also relieved Moms
Local No 1, AFL-CIO (Lembke Construction Company of Colorado, Inc), of the responsibility of complying with the NJB's April 16 award.
194 NLRB No 98. In view of this finding , we need not determine whether
SHEET METAL WORKERS, LOCAL 312
permitting the use of a composite crew of sheetmetal
workers and carpenters is inconsistent with its
assertion that the April 27 agreement binds Morris to
the NJB award of the work exclusively to sheetmetal
workers.
From the above, and the entire record herein, we
find, contrary to Local 312, that there is reasonable
cause to believe that Section 8(b)(4)(D) of the Act has
been violated and that the dispute is properly before
the Board for determination.
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. In
International Association of Machinists, Lodge No.
1743 (J. A. Jones Construction Co.),9 the Board set
forth the following criteria to be considered in the
making of an affirmative award in a 10(k) proceeding:
The Board will consider all relevant factors in
determining who is entitled to the work in dispute,
e.g., the skills and work involved, certifications by
the Board, company and industry practice, agree-
ments between unions and between employers and
unions, awards of arbitrators, joint boards, and the
AFL-CIO in the same or related cases, the
assignment made by the employer, and the
efficient operation of the employer's business.10
1. Certification by the Board and collective-
bargaining agreements
Since neither Local 312 nor Local 184 is certified as
the collective-bargaining representative of Morris'
employees, this is a neutral factor supporting award of
the work in dispute to neither union.
Since Morris has a collective-bargaining agreement
with Local 184, this is a factor favoring assignment of
the work to carpenters.
2. Agreement between the Unions and the
award of the NJB
On March 17 the Unions' International representa-
tives agreed that the work in dispute should be
performed by Local 312's sheetmetal workers. It is
clear, however, that neither Morris nor Local 184
abided by this decision since on March 22 Local 184's
carpenters continued to install "Soundlock" acousti-
cal tile for Morris at the work situs. Thus, we can give
no effect to this abortive attempt to resolve the instant
work dispute.
Similarly, while Morris on April 27 agreed to use a
9 135 NLRB 1402.
10 Id at 1410-11
11 United Association of Journeymen and Apprentices of the Plumbing and
663
composite crew of carpenters and sheetmetal workers
as of May 17, it is clear that this attempt at resolving
the work dispute failed too. Within 2 weeks Morris
discharged the sheetmetal workers whom it had hired
because they could not install "Soundlock" tile
economically. Thus, this short-lived agreement can be
given little effect.
As noted above, the NJB awarded the work in
dispute to local 312's sheetmetal workers on the basis
of alleged trade practice. However, in the absence of
an explanation of the factors relied on by the NJB or
supporting data that might enable us to determine the
degree of deference that should be accorded the
award, we cannot assign it much significance."
3. Company and area practice
The record reveals that Morris has employed
carpenters for 25 years and for the past 10 years they
have installed "Soundlock" ceiling tile systems.
Morris has never used sheetmetal workers to install
such acoustical tile. During the same period, in the
Salt Lake City area the overwhelming majority of
"Soundlock" acoustical tile ceilings have been in-
stalled by carpenters.
Thus company and area practice supports an award
to the carpenters.
4. Efficiency and economy of operation and
skills involved
As noted above , carpenters have been performing
the disputed work to Morris ' satisfaction for 10 years.
The record reveals that an experienced sheetmetal
worker would need 3 to 6 months' on-the job training
to obtain peak efficiency at installing "Soundlock"
tile. Both craft groups use basically the same tools and
possess the same basic skills. However , it is clear that
currently the carpenters possess greater expertise than
sheetmetal workers in installing "Soundlock" ceilings.
This fact was borne out during the 2 -week period
when Morris used a composite crew at the building
site . Sheetmetal workers produced less than half the
work of carpenters during the first week and did not
improve thereafter . While carpenters earn more
money per hour than sheetmetal workers in Salt Lake
City, the unit labor cost for carpenters is lower due to
their greater productivity. These factors support
assignment of the disputed work to carpenters.
Conclusions
On all the evidence , we determine the instant
jurisdictional dispute in favor of carpenters and find
Plpefitting Industry of the United States and Canada, Plumbers Local 55,
AFL-CIO (Midwest Prestressed Corp.), 184 NLRB No. 105.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carpenters represented by Local 184, rather than the
sheetmetal workers represented by Local 312, are
entitled to perform the work of installing
"Soundlock" acoustical ceiling tile at the LDS Church
Office Building site. Company and area practice, the
collective-bargaining agreement, efficiency and eco-
nomy of operation, and the skills involved favor this
result. Our present determination to award the work
to the employees who are represented by Local 184,
but not to that Union or its members, is limited to the
particular controversy which gave rise to this proceed-
ing.
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 case,
the National Labor Relations Board makes the
following Determination of Dispute:
1. Employees who are employed by Elias Morris
& Sons Co. as carpenters and who are currently
represented by United Brotherhood of Carpenters
and Joiners of America, Local No. 184, AFL-CIO,
are entitled to perform the work of installing
"Soundlock" acoustical ceiling tile at the LDS Church
Office Building site in Salt Lake City, Utah.
2. Sheet Metal Workers International Association,
Local Union No. 312, AFL-CIO, is not entitled, by
means proscribed by Section 8(b)(4)(D) of the Act, to
force or require Morris to assign the above work to
sheetmetal workers who are represented by that labor
organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Sheet Metal Workers
International Association, Local Union No. 312,
AFL-CIO, shall notify the Regional Director for
Region 27, in writing, whether it will refrain from
forcing or requiring Morris, by means proscribed by
Section 8(b)(4)(D), to assign the work in dispute to
employees represented by Local 312, rather than to
employees represented by Local 184.