Sheet Metal Workers, Local 553

National Labor Relations Board - Board Decisions

Jul 13, 1972

198 N.L.R.B. 187 (N.L.R.B. 1972)

SHEET METAL WORKERS , LOCAL 553 187
Sheet Metal Workers International Association Local
No. 553 and Ray Proof Corporation and Local
2028, United Brotherhood of Carpenters and
Joiners of America . Case 18-CD-138
July 13, 1972
DECISION AND DETERMINATION OF
DISPUTE
Connecticut) and during the same time had sales to
points directly outside the State of Connecticut in
excess of $50,000. The value of the project at the site
of this jurisdictional dispute is valued in excess of
$500,000. We find that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and that it will effectuate the policies of
the Act to assert jurisdiction herein.
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Ray Proof Corporation (herein
referred to as the Employer) alleging that Sheet
Metal Workers International Association Local No.
553 (hereinafter referred to as the Sheet Metal
Workers) has violated Section 8(b)(4)(D) of the Act.
A duly scheduled hearing was held before Hearing
Officer Richard R. Anderson on March 14, 15, 16,
22, and 23, 1972.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
All parties, including Local 2028, United Brother-
hood of Carpenters and Joiners of America (herein
referred to as the Carpenters), the Sheet Metal
Workers, and the Employer, appeared at the hearing
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence on the issue.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.
Upon the entire record in this case the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated to the following facts: Ray
Proof Corporation is a Delaware corporation en-
gaged in the manufacturing and installation of
acoustical enclosures. Ray Proof has a contract
through a subsidiary, Audio Suttle Corporation, a
Delaware corporation, with Morrison-Knudsen and
Associates, for the installation of acoustical sound-
proof panels and doors at the Grand Forks area
Safeguard Missile construction site near Nekoma,
North Dakota. This contract is valued in excess of
$50,000. During the past year Ray Proof Corporation
purchased more than $50,000 worth of materials
which originated from points outside the State of
Connecticut (Ray Proof has a plant in Norwalk,
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and we find that Sheet Metal
Workers International Association Local No. 553
and Local 2028, United Brotherhood of Carpenters
and Joiners of America, are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Morrison-Knudsen is the general contractor at the
Grand Forks area Safeguard Missile construction
site near Nekoma, North Dakota. Audio Suttle has a
contract with Morrison-Knudsen for the manufac-
ture and installation of acoustical soundproof panels
and doors at the missile control center located at the
MSR (Missile Site Radar) site near Nekoma, North
Dakota. Audio Suttle in turn has subcontracted the
installation of the panels and doors to its parent
corporation, Ray Proof Corporation, the Employer
herein.
The Employer has an International agreement with
the Carpenters Union. When the Employer does a
field installation its procedure is to send a Carpenters
foreman to the site and to use local carpenters to do
the work. Installation of the panels at the MSR site
was scheduled to begin July 7, 1971. Prior to that
time, the Employer had notified the local Carpenter
Union's business agent and requested a supply of
carpenters to do the work. Upon its arrival on the site
on July 6, the Employer had a meeting with
representatives of the Carpenters and the Sheet
Metal Workers. At that time the Sheet Metal
Workers claimed the work of installing these panels
claiming that they were, in fact, plenums within the
Sheet Metal Workers' jurisdiction. Employees repre-
sented by the Carpenters began installing the panels
on July 7. Thereafter, the Sheet Metal Workers filed
a petition with the National Joint Board seeking
assignment of the work of installing the enclosures.
Although offered an opportunity to do so, neither the
Carpenters nor the Employer submitted anything to
the Joint Board. On August 19, 1971, the Joint Board
awarded the work of installing the enclosures to
employees represented by the Sheet Metal Workers.
Shortly thereafter, the Employer left the jobsite
198 NLRB No. 36
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pending resolution of scheduling and jurisdictional
difficulties. The Employer then sought to follow the
procedures as to jurisdictional disputes set forth in
the Project Stabilization Agreement. The Project
Stabilization Agreement is an agreement between the
general contractor and some of the unions on the
site , including the Carpenters but not the Sheet
Metal Workers. Subcontractors are bound by the
Project Stabilization Agreement in their relationship
to the signatory unions because of their relationship
to the general contractor.' As of September 16, 1971,
the dispute had reached the stage where it was
pending before the general presidents of the Carpen-
ters and Sheet Metal Workers.
By letter of October 21, 1971, to Morrison-Knud-
sen, the Employer stated that it had been informed
by the Carpenters that (1) the Carpenters feels there
is no doubt about the fact that the installation of
these audio panels is its members' work, (2) the Sheet
Metal Workers is not a signatory to the Project
Agreement, and (3) neither the Employer nor the
Carpenters is represented on the Joint Board. The
Employer further stated that there was no further
action that it could take to resolve the dispute prior
to returning to the jobsite. At a November 18, 1971,
meeting of the Standing Board of Adjustment, the
Employer announced that it was its decision to
continue the work with the carpenters. Mr. B. Q.
Barnes, business manager representing the Sheet
Metal Workers, declared that he would strike the job
if the Sheet Metal Workers did not get the work.
Thereafter, on approximately November 24, 1971,
Morrison-Knudsen made a further effort to have the
general presidents resolve the dispute. At a Decem-
ber 16, 1971, meeting of the Standing Board of
Adjustment, the dispute was further discussed.
Although the minutes of that meeting indicate that
Barnes stated he would "banner" the job if the Sheet
Metal Workers did not get the work, at the hearing
Barnes denied making such a threat. On that same
day, a meeting.of the Department of Defense Labor
Management Committee 2 was held. During that
meeting the committee passed a resolution directing
the Employer and the unions to abide by the Joint
Board decision. By letter dated December 20, 1971,
to Morrison-Knudsen, the Sheet Metal Workers
general president, Edward J. Carlough, stated that
the Sheet Metal Workers is not a signatory to the
Project Agreement and therefore the Agreement did
not apply to it. On December 23, 1971, the Employer
filed its charges against the Sheet Metal Workers.
B. The Work in Dispute
The work in dispute consists of the installation of
acoustical enclosures at the missile control center
located at the MSR (Missile Site Radar) site near
Nekoma, North Dakota.3
C. The Contentions of the Parties
The Employer and the Carpenters contend that
there is no voluntary method for the voluntary
adjustment of the dispute to which all of the parties
are bound. They further contend that the Employer's
assignment was proper in light of the factors usually
considered by the Board in these matters.
The Sheet Metal Workers contends that the Board
is without jurisdiction to determine the merits of the
dispute under Section 10(k) of the Act since the
parties have agreed upon methods for the voluntary
adjustment of the dispute. Alternatively, the Sheet
Metal Workers contends that, should the Board
decide it has jurisdiction to decide merits of the
dispute, the work should be assigned to employees
represented by it on the basis of the factors usually
considered by the Board in making awards.
D. Applicability of the Statute
Before the Board may .proceed to 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) has been violated and
that the parties have not agreed upon methods for
the voluntary adjustment of the dispute.
The parties herein have stipulated that Sheet Metal
Workers Local No. 553's business representative, B.
Q. Barnes, at a Standing Board of Adjustment
meeting on November 18, 1971, stated that he would
strike the project site if other than members
represented by Sheet Metal Workers Local No. 553
performed the work. We find that reasonable cause
exists ' to believe that the Sheet Metal Workers
violated Section 8(b)(4)(D) of the Act by making this
threat to strike.4
Next we must determine whether the parties had an
1 Art. XVI, "Jurisdictional disputes ," reads as follows
Step 1 The Employer agrees to make assignments of work in
accordance with International Agreements and Agreements of Record
If there is no such agreement applicable to the disputed work,
Employer shall assign the work in accordance with established practice
in the area according to his best judgment Step 2 If a dispute apses, it
shall be referred to the Standing Board of Adjustment for settlement
Step 3 If the dispute continues , the Employer or the Unions involved
should refer the dispute to the Missile Site Labor Committee Step 4. If
the dispute is not settled by the Committee , it shall then be referred to
the General Presidents of the affected International Unions for
adjustment There shall be no work stoppage while a jurisdictional
dispute is being adjusted The Contractor' s assignment shall apply
while thejunsdictional dispute is being adjusted
2 The parties agree that this is the committee referred to as the "Missile
Site Committee" in the Project Stabilization Agreement
3 The Sheet Metal Workers stipulated to this description subject to its
contentions as to the nature of these acoustical enclosures
4 In view of this finding we find it unnecessary to determine whether
Barnes, on December 16, 1971, threatened to "banner" the job.
SHEET METAL WORKERS , LOCAL 553 189
agreed-upon method for the voluntary adjustment of
the dispute . The Sheet Metal Workers contends that
there are two such methods , the National Joint
Board and the Project Stabilization Agreement, and
that each method has resulted in an award in its
favor.
Turning first to the National Joint Board, the
evidence shows that the Sheet Metal Workers and
the Carpenters are signatories to the National Joint
Board Agreement , though the Carpenters is in
noncompliance . Neither the Employer nor the
general contractor , Morrison-Knudsen , or the Em-
ployer 's subsidiary , Audio Suttle , is a party to the
National Joint Board Agreement . The Sheet Metal
Workers nevertheless contends that the Employer
has agreed to be bound by the National Joint Board
award . It bases this contention ( 1) on the Audio
Suttle contract with Morrison -Knudsen and (2) on
an alleged representation by Morrison -Knudsen that
it would be bound by National Joint Board awards.
The Audio Suttle contract with Morrison -Knudsen
provides that any requests for an extension of time
based on a work stoppage or strike must be
accompanied by a statement establishing the meas-
ures taken by the contractor and all subcontractors
to prevent the work stoppage or strike or to alleviate
the situation after it occurred . It further provides that
a delay caused by work stoppage or strike which is
an unfair labor practice , and which the contractor
could not reasonably prevent , can be excused only to
the extent that it does not go beyond the point at
which a reasonably diligent contractor could resume
work by ending the stoppage through timely action
under one or more of the following means as
appropriate : (a) filing a charge with the Board; (b)
recourse to the procedure of the Federal Mediation
and Conciliation Service; (c) use of any National
Joint Board for settlement of jurisdictional disputes
or other private boards or organizations for, the
settlement of disputes ; (d) use of the grievance
procedure under individual collective-bargaining
agreements; and (e) recourse to Federal and state
courts to enforce the provision of collective -bargain-
ing agreements , The Sheet Metal Workers contends
that the reference to the use of Joint Board
procedures in this clause binds the Employer to
accept Joint Board awards . Neither of the parties to
the contract , Morrison-Knudsen or Audio Suttle,
read the contract as compelling Audio Suttle or its
subcontractor to abide by Joint Board decisions.. The
plain language of the contract would seem to support
the latter interpretation as the Joint Board is listed as
only one of the several alternatives offered to the
Employer to avoid penalties for time loss due to
work stoppage and the clause indicates that each of
the procedures , including the Joint Board proce-
dures , are to be used only as appropriate.
As to the Sheet Metal Workers ' alternative conten-
tions with respect to the Joint Board , the evidence is
somewhat conflicting . The Sheet Metal Workers
contends that Morrison-Knudsen orally agreed to be
bound by the Joint Board awards . It does not
contend that the Employer was a party to such an
agreement but contends that it is bound by the oral
representation of the general contractor . The general
contractor , on the other hand , states that the only
statements it made were to the effect that it would
voluntarily abide by Joint Board awards if the unions
agreed between themselves to be bound by a Joint
Board decision . There is no evidence to indicate that
the subcontractors were aware of the oral representa-
tions of the general contractor , whatever they may
have been . Whatever representations Morrison-
Knudsen may have made , there is no evidence that
the oral representations were binding or were
intended to be binding, on subcontractors . We find
that there is not sufficient evidence to establish that
the Employer is bound by the National Joint Board
procedures . Therefore , we find that the National
Joint Board procedures are not an agreed-upon
voluntary method of settlement of the dispute in this
case within the meaning of Section 10(k) of the Act.
Next we must consider whether the procedures set
forth in the Project Stabilization Agreement warrant
our withholding a determination. As previously
noted, the Employer and the general contractor
sought to resolve the work dispute through the use of
this procedure reaching the point where the dispute
was submitted to the general presidents of the
Carpenters and the Sheet Metal Workers . When an
answer resolving the dispute was not forthcoming a
resolution was passed during a meeting of the
Department of Defense Labor Management Com-
mittee on December 16, 1971, directing the Employer
to comply with the National Joint Board award
dated August 20, 1971 . Shortly thereafter , by letter
dated December 20, 1971, the Sheet Metal Workers
general president stated his view that the Sheet Metal
Workers was not bound by the Project Stabilization
Agreement . This view was apparently based on
advice received from Barnes , Local 533 's business
representative at the site. The Sheet Metal Workers
now contends that its general president was in error
and that in fact the Sheet Metal Workers is a party to
the Project Stabilization Agreement and that the
Department of Defense Labor Management Com-
mittee ' s determination represents a final determina-
tion of the jurisdictional dispute . In support of this
position, the Sheet Metal Workers points to its
agreement with Singleton , a sheet metal subcontrac-
tor at the site . That agreement provides that the
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relationship between Singleton and the Sheet Metal
Workers is to be governed by the Project Stabiliza-
tion Agreement. The Sheet Metal Workers contends
that the agreement with Singleton binds it to the
Project Stabilization Agreement. In further support
of its position it points to the fact that it has
participated in both the Standing Committee on
Adjustment and the Department of Defense Labor
Management Committee as evidence that it is a party
to the Project Stabilization Agreement.
It is clear that the Sheet Metal Workers is bound
by this Project Stabilization Agreement with respect
to its relationship with Singleton. However, this
would not seem sufficient to bind the Sheet Metal
Workers to the Project Stabilization Agreement with
respect to its relationship with the Employer. This
apparently was also the Sheet Metal Workers' view
prior to the hearing in this case. Under these
circumstances we find that the evidence does not
establish that the Sheet Metal Workers is bound by
the Project Stabilization Agreement with respect to
its relationship with the Employer. Therefore, we
find the procedure in the Project Stabilization
Agreement is not a method for the voluntary
settlement of this dispute within the meaning of
Section 10(k) of the Act.5
E. Merits of the Disputes
Section 10(k) of the Act requires the Board to make
an affirmative award on disputed work after giving
due consideration to and balancing all relevant
factors .6 The following factors are relevant in making
a determination of the dispute before us:
1. The Employer's assignment and past
practices
As stated the Employer assigned the disputed work
to employees represented by the Carpenters in
accordance with its longstanding past practice and
its contract with the Carpenters. The Employer has
stated that it prefers' an assignment of the work to the
carpenters. This factor favors assignment of the work
to employees represented by the Carpenters.
2. Qualifications to perform the work
The evidence shows that employees represented by
the Carpenters and employees represented by the
Sheet Metal Workers possess the necessary qualifica-
5 In view of this finding, we do not find it necessary to determine
whether, assuming all parties were bound, the procedures in the Project
Stabilization Agreement constitute an agreed -upon method for the
adjustment of the dispute within the meaning of Sec. 10(k)
6 International Association of Machinists, Lodge No 1743, AFL-CIO (J
A. Jones Construction Company), 135 NLRB 1402
tions to perform the disputed work satisfactorily.
This factor favors neither party.
3. Industry practice
The Sheet Metal Workers bases its claim to the
disputed work primarily on its contention that the
disputed work, although labeled as the installation of
acoustical enclosures, in fact consists of installing
air-handling units or plenums. It contends that the
practice in the industry is to assign the work of
installing such air-handling units to employees
represented by the Sheet Metal Workers. The
Employer and the Carpenters on the other hand
contend that the disputed work is that of installing
acoustical enclosures and that the practice in the
industry is to award such work to employees
represented by the Carpenters.
Specifications for the job described the work as
"acoustical enclosures for air-conditioning equip-
ment in Missile Site Control Building." As noted in
the specifications, these enclosures are described on
some of the blueprints as "air handling unit enclo-
sures." A close reading of the record makes it clear
that these "enclosures" are rooms of relatively large
size whose function is to serve both as acoustical
enclosures and as air-handling units. It is not clear
from the record that one of these functions predomi-
nates over the other. While the record indicates that
the industry practice as to each function is as
contended by the parties, this, of course, is not
particularly helpful when the structure performs both
functions and neither function predominates over the
other.? Under these circumstances we conclude that
the industry practice favors neither party.
4. Contract
Where the work is subject to competing jurisdic-
tional claims because of its dual nature , one factor
tends to favor the union whose claim the employer
has agreed by contract to recognize. The Employer
has an International agreement with the United
Brotherhood of Carpenters and Joiners in which it
agrees to recognize the jurisdictional claims of the
Carpenters. As the Employer has agreed to recognize
the jurisdictional claims of the Carpenters, and as the
Employer has no such agreement with the Sheet
Metal Workers, we find this factor favors an
assignment of the work to employees represented by
the Carpenters.
7 We note that the record indicates that at the nearby PAR (Perimeter
Acquisition Radar) site , part of the overall site, employees represented by
the Sheet Metal Workers are performing the job of installing rooms similar
to those present here, the difference being that at the PAR site the
acoustical function , though a factor , is relatively less important
SHEET METAL WORKERS , LOCAL 553 191
5. Efficiency and economy of operations
The evidence indicates that employees represented
by each union can perform the work equally well and
with equal safety. The record does show that
employees represented by the Carpenters receive a
wage rate which is approximately $1.60 per hour
lower than that received by employees represented
by the Sheet Metal Workers. This factor of economy
of operations tends to favor an assignment of the
work to the carpenters.
6. Joint Board determination
Sheet Metal Workers contends that the National
Joint Board determination favors an award of the
disputed work to it. The Sheet Metal Workers
presented evidence to the Joint Board showing that
the practice in the industry was to assign the
handling and installing of air-handling enclosures to
employees represented by it. As previously indicated,
the Carpenters, in noncompliance with the Board,
did not participate in the National Joint Board
procedure, nor did the Employer. The National Joint
Board awarded the work to the Sheet Metal Workers
on the basis of past practice. However, as noted
before in our discussion of industry practice, the
enclosures here are dual function enclosures. The
award does not indicate that the dual function nature
of the enclosures was considered when the Joint
Board made the award. Although we have consid-
ered National Joint Board awards a factor, we find
that the award is not determinative of area or
national practice as to a dual function structure of
this type.
CONCLUSION
Upon the record as a whole and after full
consideration of all relevant factors involved, we
conclude that the employees represented by the
Carpenters are entitled to the work in dispute. We
base this conclusion upon the Employer's assignment
of the work to employees represented by the
Carpenters, the fact that this assignment is consistent
with the Employer's past practice, its current
bargaining agreement with the Carpenters, and its
preference and the fact that such assignment will
result in greater economy of operations. Accordingly,
we shall determine the dispute before us by awarding
the work in dispute at the MSR site in Nekoma,
North Dakota, to employees represented by the
Carpenters but not to that Union or its members. In
consequence we also find that the Sheet Metal
Workers is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require the
Employer to assign the disputed work to employees
represented by it.
The Employer requests that the Board's award be
extended to cover work at other sites and points to
the fact that it is the successful bidder at the ABM
facility currently under construction in Great Falls,
Montana. Although the Board need not restrict its
award to a single job if there is evidence that similar
disputes would occur elsewhere in the future, we
conclude that a broad award is not clearly justified
by the evidence herein. Thus, the record is not clear
with respect to future operations of the Employer nor
is it clear with respect to future activities of the
parties involved. Therefore, we will limit our award
to the project presently under consideration.
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 Dis-
pute.
1. Employees of Ray Proof Corporation, who are
represented by Local 2028, United Brotherhood of
Carpenters and Joiners of America, are entitled to
perform the work of installing acoustical enclosures
at the missile control center located on the MSR
(Missile Site Radar) site near Nekoma, North
Dakota.
2. The Sheet Metal Workers International Associ-
ation Local No. 553 is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require Ray Proof Corporation to assign the above
work to employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, the Sheet Metal
Workers International Association Local No. 553
shall notify the Regional Director for Region 18, in
writing, whether or not it will refrain from forcing or
requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the work in
dispute to employees represented by the Sheet Metal
Workers, rather than to employees represented by
the Carpenters.