Sheet Metal Workers, Local 19

National Labor Relations Board - Board Decisions

Oct 24, 1972

199 N.L.R.B. 1020 (N.L.R.B. 1972)

1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association, Local
191 and Modern Cooling , Inc. and Metropolitan
District Council of Carpenters and Joiners of Ameri-
ca for Philadelphia and Vicinity? Case 4-CD-274
October 24, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed September 23, 1971, by Modern Cool-
ing, Inc., hereinafter called the Employer, alleging
that the Sheet Metal Workers International Associa-
tion, Local 19, hereinafter called Sheet Metal Work-
ers, had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign certain
work to employees represented by Sheet Metal Work-
ers rather than to employees represented by Metro-
politan District Council of Carpenters and Joiners of
America for Philadelphia and Vicinity, hereinafter
called Carpenters.
A hearing was held before Hearing Officer Jef-
frey C. Falkin on February 15 and 25, 1972; March
7, 8, and 17, 1972; and April 12 and 13, 1972, at
Philadelphia, Pennsylvania. 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,
briefs were filed by the Sheet Metal Workers and the
Carpenters.'
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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board
make the following findings:
1. THE BUSINESS OF THE COMPANY
The parties stipulated that the Employer, a
Pennsylvania corporation which has its principal
place of business located in Philadelphia, Pennsylva-
nia, has received, within the past 12-month period,
1 The name appears as amended at the hearing.
2 The name appears as amended at the hearing.
3 The Employer filed a letter stating its position in lieu of a brief.
supplies of materials valued in excess of $50,000 from
outside the commonwealth of Pennsylvania. We find,
therefore, 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.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Sheet Metal Workers and the Carpenters are labor
organizations within the meaning of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute is the handling, erection,
installing, bolting, joining, and modifying of panels to
be assembled on the jobsite at Hahnemann Hospital
in Philadelphia, Pennsylvania, to form self-contained
environmental rooms. The panels are composed of a
wood frame, insulated with either polyurethane or
fiberglass, enclosed by sheets of aluminum directly
facing the insulation on the front and back of the
panel.
B. Background and Facts of the Dispute
In the Spring of 1969, Modern Cooling signed a
subcontract with general contractor, Daniel J. Keat-
ing Company providing for Modem Cooling to per-
form the work in dispute. The subcontract provided
that jurisdictional disputes be settled by the National
Joint Board for Settlement of Jurisdictional Disputes.
When the first shipment of panels arrived in May
1971, the Employer assigned the installation to its
own carpenters, in accordance with its past practice.
After the first installation, Mayer, the business agent
for the Sheet Metal Workers, requested the work in
the future when the subsequent shipments arrived.
The Employer refused and when the next shipment
arrived, assigned it to carpenters. Again, Mayer re-
quested the work and was again refused. Thereafter,
the Sheet Metal Workers submitted the dispute to the
National Joint Board, which on June 18 awarded the
work to the Sheet Metal Workers. In September, after
the Employer signed a collective-bargaining agree-
ment with the Carpenters and after carpenters again
performed the disputed work, the Sheet Metal Work-
ers protested and established a picket line. An unfair
labor practice charge was filed on September 23
against the Sheet Metal Workers and on September 27
the Sheet Metal Workers terminated the picket line.
On October 14 the Regional Director dismissed the
charge, but later issued a notice of hearing after an
199 NLRB No. 153
SHEET METAL WORKERS, LOCAL 19 1 1021
appeal was sustained.
C. The Contentions of the Parties
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 a method for the voluntary
adjustment of the dispute as evidenced by the cooper-
ation of the Employer in submitting the dispute to the
National Joint Board. It further contends that sheet
metal workers should be assigned the disputed work
in view of certain factors usually considered by the
Board. In the event the work is assigned to carpenters,
the Sheet Metal Workers argues that the assignment
should be limited to the instant jobsite.
The Carpenters takes the position that the dis-
pute is properly before the Board because the Em-
ployer has never signed an agreement with the
Carpenters, the Sheet Metal Workers, or the National
Joint Board to submit jurisdictional disputes to the
National Joint Board. It further contends that there is
no effective method for voluntary adjustment of the
dispute because the Carpenters Union is in noncom-
pliance with the Joint Board's procedures. It further
contends that the work should be awarded to carpen-
ters based on factors traditionally considered by the
Board. Finally, the Carpenters asks the Board to en-
large the scope of its order to include the performance
of all similar work within the geographic jurisdiction
of the Unions involved.
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 (1) there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated,
and (2) the parties have not agreed on methods,for the
voluntary adjustment of the dispute.
As set forth previously, it is undisputed that the
Sheet Metal Workers protested the refusal to assign it
the disputed work and established a picket line. Ac-
cordingly, we find that reasonable cause exists to be-
lieve that the picketing by the sheet metal workers
violated Section 8(b)(4)(D) of the Act.
With respect to (2), above, the Employer's con-
tract with Keating provided for referral of jurisdic-
tional problems to the National Joint Board. At the
time of the contract, Keating was a member of the
General Building Contractors Association (hereinaf-
ter called "GBCA") which was party to a collective-
bargaining agreement with the Carpenters which was
effective from May 1, 1969, to April 30, 1971, and
which provided for the referral of jurisdictional dis-
putes to the National Joint Board. The GBCA is an
affiliate of the Associated General Contractors of
America (hereinafter called AGC) which had an
agreement with the Building and Construction Trades
Department, AFL-CIO, to comply with the National
Joint Board's procedures. This agreement terminated
on September 30, 1969, and the current collective-
bargaining agreement between the GBCA, effective
from May 1, 1971, through April 30, 1973, conditions
GBCA's participation in the new National Joint
Board's procedures upon agreement by AGC to com-
ply with the National Joint Board. The Employer,
however, at no time has been a member of any associ-
ation which has contracted to refer disputes to the
National Joint Board nor has it signed any such con-
tract with either of the unions involved in the current
dispute. Therefore any contractual obligation it may
incur must be derived from the subcontract between
the Employer and Keating. Although paragraph 15 of
the subcontract provides for referral of jurisdictional
disputes to the National Joint Board, Nauta,
Keating's general superintendent, testified that the
Employer no longer requires its subcontractors to go
to the new National Joint Board. He further stated
that paragraph 15 was incorporated into its standard
subcontract because Keating was a member of the
GBCA, which, at that time, was a signatory of the
National Joint Board. Nauta's recommendation to
the Employer that it take the present dispute to the
NLRB is consistent with this interpretation of para-
graph 15. Moreover, it is consistent with the current
collective-bargaining agreement between the GBCA
(which covers Keating) and the Carpenters. In our
recent decision in Lembke,4 we held that the obliga-
tion to be bound by the determination of the National
Joint Board ceased with the termination of the exist-
ence of that particular Joint Board. Accordingly, if
the Lembke rationale is applied here, the Employer's
contractual obligation to submit the present dispute
to the Joint Board would have ceased even without
Keating's concurrence. Also, we do not find that the
Employer, by its actions, at any time intended to be
bound by the new National Joint Board. The
Employer's president testified that he never attended
any hearings before the National Joint Board, that he
never sent any letters or material or information to it,
that he never directly talked with any of its represent-
atives, and that he never informed anybody that he
would be bound by any decision of the National Joint
Board. Additionally, for the reasons cited in Lembke,
the Carpenters is not bound to take jurisdictional dis-
putes to the National Joint Board under the GBCA-
Carpenters contract.
° Bricklayers, Masons and Plasterers ' International Union of Amenca, Local
No 1, AFL-CIO (Lembke Construction Company of Colorado, Inc), 194
NLRB No..98
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, we find and conclude
that at the time of the instant dispute there did not
exist any agreed-upon or approved method for the
voluntary adjustment of the dispute . The matter is
therefore properly before the Board for determina-
tions
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 factors. The fol-
lowing factors are relevant in making the determina-
tion of the dispute before us.
1. Employer's assignment and past practice
As stated, the Employer assigned the work of
installing the panels to carpenters. The Employer's
president stated that the carpenters are the only craft
it has used since beginning this type of work in 1950.
2. Collective-bargaining agreements
Although the Employer had no agreements in
May 1971 when the first installation was assigned, it
signed a collective-bargaining agreement with the
Carpenters on September 20, 1971.
3. Area and industry practice
An abundance of evidence favoring both Unions
was presented by the various parties. As the area and
industry practice is mixed, it favors neither party.
6. The National Joint Board award
Although, as indicated above, we do not consid-
er the Joint Board's award to be binding upon the
parties, we do consider it a factor in determining the
proper assignment of work in dispute. However, in
view of all the circumstances, including the Carpen-
ters and Employer's failure to participate and the oth-
er factors set forth above most of which favor the
carpenters, we do not give it controlling weight.
Conclusion
Having considered all pertinent factors , we con-
clude that employees represented by the Carpenters
are entitled to perform the'work in dispute. We reach
this conclusion based upon the Employer' s assign-
ment of the disputed work to carpenters, the fact that
this assignment is consistent with its own past practice
as well as that of many of its competitors, the fact that
the carpenters possess the requisite skills and tools to
perform the work, and the fact that such assignment
will result in a continuity of operation with attendant
efficiency and economy. Accordingly, we shall de-
termine the dispute before us by awarding the work
in dispute at the Employer's Hahnemann Hospital
project in Philadelphia, Pennsylvania, to those em-
ployees represented by Carpenters but not to that
Union or its members. In consequence , we also find
that the Sheet Metal Workers International Associa-
tion 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.
4. Skills and tools
Again, there was a plethora of evidence which
was mixed and favors neither Union.'
5. Efficiency and economy of operation and skills
involved
As noted above, carpenters have been perform-
ing the disputed work to the Employer's satisfaction
for a number of years; consequently, carpenters pos-
sess greater experience in installing the particular pan-
el used by the Employer.
5 Due to the above disposition , we find it unnecessary to reach the conten-
tion of the Carpenters that the parties are not bound to submit the dispute
to the Joint Board because the Carpenters Union is in noncompliance status
with the Joint Board.
6 The differences in the materials used in various insulating panels, as well
as the purpose of the panels, may account for much of the seemingly conflict-
mg testimony There is substantial testimony that the panels involved herein
differ from the types of panels which Sheet Metal Workers witnesses testified
have been normally installed by sheet metal workers
Scope of Award
The Carpenters Union, in its brief, requested
that the Board's award be extended to include the
performance of all work of this nature within the ge-
ographical jurisdiction of the Unions involved be-
cause there is a strong likelihood that such dispute will
occur again in the future. The Sheet Metal Workers
Union, in its brief, requested the award to be limited
to the Hahnemann Hospital jobsite since the Sheet
Metal Workers has not previously claimed assign-
ment of the disputed work on any of the Employer's
other jobs and there is no evidence that it will make
such a claim in the future. Although the Board need
not confine its award to a single job if there is evi-
dence that similar disputes will occur in the future, we
conclude that a broad award is not clearly justified by
the evidence herein. Therefore, we will limit our
award only to the project presently under considera-
tion.
SHEET METAL WORKERS , LOCAL 19 1023
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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of Modern Cooling , Inc., who are
represented by Metropolitan District Council of Car-
penters and Joiners of America for Philadelphia and
Vicinity , are entitled to perform the work of handling,
erecting, installing , bolting, joining , and modifying of
panels to be assembled on the jobsite at Hahnemann
Hospital in Philadelphia , Pennsylvania.
2. Sheet Metal Workers International Associa-
tion , Local 19, is not entitled, by means proscribed by
Section 8 (b)(4)(D) of the Act, to force or require Mod-
ern Cooling , Inc., to assign the above work to employ-
ees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute Sheet Metal Workers
International Association, Local 19 , shall notify the
Regional Director for Region 4 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 Sheet Metal Workers rather than to employees
represented by Carpenters.