Sheet Metal Workers, Local 41

National Labor Relations Board - Board Decisions

Nov 14, 1972

200 N.L.R.B. 287 (N.L.R.B. 1972)

SHEET METAL WORKERS, LOCAL 41
Sheet Metal Workers International Association,
AFL-CIO, Local 41 and Eugene D. Perry d/b/a
Perry Acoustics Companyand Indiana andKentuck-
y District Council, United Brotherhood of Car-
penters and Joiners of America , AFL-CIO, and its
affiliated Local 1155. Case 25-CD-130
November 14, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended following
charges filed by Eugene D. Perry d/b/a Perry
Acoustics Company, herein called the Employer,
alleging that Sheet Metal Workers International
Association, AFL-CIO, Local 41, herein called Sheet
Metal Workers, had violated Section 8(b)(4)(D) of
the Act. Pursuant to notice, a duly scheduled hearing
was held in Indianapolis, Indiana, before Hearing
Officer David R. Friedman on June 30, 1972. 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, the Employer filed a brief
in support of its position.
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.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
Employer's brief, the Board makes the following
findings:
I. THE BUSINESS OF THE EMPLOYER
The Employer is a sole proprietor, doing business
under the trade name of Perry Acoustics Company,
with its place of business in Mooresville, Indiana.
The Employer is engaged in the construction
industry in the business of repairing and installing
acoustical ceilings throughout the State of Indiana.
During the past calendar year, a representative
period, the Employer in the course and conduct of its
business operation, purchased, transferred, and
delivered from its place of business, goods and
materials, valued in excess of $50,000, which were
transported to said facility directly from States other
than the State of Indiana.
The parties stipulated, and we find, that Perry
200 NLRB No. 38
287
Acoustics Company is engaged in commerce within
the meaning 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 Indiana and Kentucky District
Council, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, and its affiliated
Local 1155, herein called Carpenters, are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts
On October 13, 1970, the Employer entered into a
subcontract with Mid-Republic Construction, Inc.,
Indianapolis, Indiana, to install an acoustical tile and
metal pan ceiling at the Columbus, Indiana, High
School project. However, because the cost of the
metal pan ceiling exceeded the budget, the Employer
was asked to substitute in lieu thereof the Soundlock
ceiling acoustical system.
Construction of the entire high school project
began in late 1970. On November 24, 1971, the
Employer started work on its subcontract, and on
March 16, 1972, the Employer made a written
assignment of the disputed work to its own employ-
ees, represented by Carpenters District Council of
Central and Western Indiana. In late March 1972,
Stephen R. Smoot, business representative of the
Sheet Metal Workers, asked the Employer which
labor organization was going to receive the assign-
ment of installing the Soundlock ceiling acoustical
system. When the Employer replied that it was going
to award the work to the Carpenters, Smoot
commented, "Don't you know that work belongs to
us?" By letter dated March 29, 1972, Smoot advised
the Employer that "I am notifying you that Sheet
Metal Workers' Local #41 is disputing the work
assignment on the [Columbus High School] project
to the Carpenters." On May 10, 1972, Smoot again
asked the Employer if it were planning to use
carpenters on the project. When the Employer
replied in the affirmative, explaining that it was
putting up a "grid system" with the carpenters,
Smoot protested, and said he "might have to put a
picket on the job."
On the morning of May 23, 1972, two pickets,
representing the Sheet Metal Workers, appeared at
the jobsite, displaying signs stating as follows:
NOTICE TO THE PUBLIC
Perry Acoustics Company is in non-compliance
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the decision from the National Joint Board
on Soundlock Ceiling.... We do not tell any
employees of Perry Acoustics or any other
Employer to refrain from working in this project.
On May 23, also, all other crafts employed on the
project, including electricians, steamfitters, tileset-
ters, etc., engaged in a 1-day work stoppage.
Members of the Sheet Metal Workers, however,
continued to picket until May 30, 1972.
B. The Work in Dispute
The work in dispute involves the handling and
installation of Soundlock acoustical metal ceiling
panels and Soundlock metal soffits panels, including
complete grid systems in connection with the Perry
Acoustics Company Columbus High School project
at Columbus, Indiana.
C. The Contentions of the Parties
The Employer contends that the Board should
sustain the Employer's award of the disputed work to
its own employees represented by the Carpenters,
relying on such factors as its personal preference,
consideration of efficiency, economy, safety and
skill, and the Employer's past practice and area
practice. The Sheet Metal Workers contends that it is
entitled to the disputed work on the basis of an
award by the National Joint Board for Settlement of
Jurisdictional Disputes and the fact that the ceiling
panels to be installed are covered with metal.
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.
The record shows that in late March 1972, Sheet
Metal Workers claimed the work and advised the
Employer that it was disputing the Employer's
assignment to the Carpenters. Later, in early May
when the Employer again advised Sheet Metal
Workers that it planned on continuing its assignment
to the Carpenters, Sheet Metal Workers Representa-
tive Smoot threatened to picket. Uncontroverted
testimony establishes that subsequently, from May
23 to 30, 1972, the Sheet Metal Workers picketed,
and precipitated a 1-day work stoppage at the jobsite
of the Employer's Columbus High School project,
Columbus, Indiana. On these facts, we are satisfied
that Sheet Metal Workers threatened to and did
strike with an object of forcing assignment of the
disputed work to members it represented, rather than
to the Employer's employees represented by the
Carpenters. Accordingly, we find that there is
reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred, and that the dispute
is properly before the Board for determination
pursuant to Section 10(k) of the Act.'
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after
giving due consideration to all factors. The following
factors are relevant in making a determination of the
dispute before us.
1. Certification and collective-bargaining
agreements
Neither of the labor organizations involved herein
has been certified by the Board as the collective-
bargaining representative for a unit of the Employ-
er's employees.
The Employer does not have a collective-bargain-
ing agreement with the Sheet Metal Workers. The
Employer has a collective-bargaining agreement with
the Carpenters District Council of Central and
Western Indiana, but the geographical area covered
by that agreement does not include Bartholomew
County, where the Columbus, Indiana, High School
project is located.
2. The Employer's assignment and past
practice
The Employer has been engaged in the installation
of acoustical ceilings for 10 years. During that time,
the Employer has used only carpenters to install
acoustical ceilings with grid systems and this is so
regardless of the composition of the panels ultimately
installed in the grids. The Employer has, however,
used sheetmetal workers to install two ceiling jobs,
namely, at Mooresville High School and at Bain-
bridge High School, but these jobs consisted of a
metal pan "snap in" system installed without a grid
system.
With respect to the Soundlock ceiling system
utilized in the instant case, the record shows that the
Employer has performed five jobs installing Sound-
lock ceilings where a grid system has been an integral
part of the ceiling and, on each occasion, has used
carpenters to perform the work.2
Under the foregoing circumstances, we find that
the Employer has consistently maintained a practice
1 There was no specific contention nor was there evidence warranting a
finding that the parties had agreed upon a method for voluntary settlement
of the dispute. Cf. NLRB Rules and Regulations, Subpart F, Sec. 102.90.
2 It appears that on one job, which involved a "concealed" nongrid
system, the Employer also utilized sheetmetal workers.
SHEET METAL WORKERS, LOCAL 41 289
of assigning the disputed work to its own employees
represented by the Carpenters.
3. Area practice
The Carpenters business representative, Wendell
Stapp, testified that in his 14 years' experience with
the Carpenters, only carpenters have been used to
install grid-type ceiling systems, as in the Soundlock
system installed in the Columbus High School
project. Other acoustical ceiling contractors in the
area, such as Fannin and Johnson, Sanford Electric,
and Commercial Floor and Acoustics, have installed
ceiling systems with grids as part of the system, and
have used carpenters to perform the work. Stephen
B. Smoot, business representative of the Sheet Metal
Workers, stated that area contractors Fannin and
Johnson, and Sanford Electric, have contracts with
the Sheet Metal Workers covering installation of
"metal" ceilings; however, Smoot did not distinguish
between "metal" ceilings with or without the grid
systems, but explained that its claim to the disputed
work was based entirely on the composition of the
material of the panels. The record, viewed as a
whole, supports the view that acoustical ceiling
contractors, using the grid system, including the
Soundlock system utilized in the instant case, employ
carpenters to perform the disputed work.
4. Skills
The Employer employs a nucleus of carpenters
who travel with the Employer from job to job. The
Employer has indicated that its carpenters serve an
apprenticeship of at least 4 years before acquiring the
expertise necessary to install a Soundlock acoustical
ceiling system and, when each job 'is completed, it
necessarily must be inspected by an architect, an
inspector, and, where necessary, a school inspector.
In installing a Soundlock ceiling system, complete
with the grids and panels,3 the carpenters use such
tools as a chalk box, hammer, nippers, metal masters,
a water level, and a circular saw. The carpenters
must also be adept in the use of a laser beam leveling
device, which requires a period of special training.
The sheetmetal workers claim that they possess the
necessary skills to install acoustical systems utilizing
metal pan panels, but the record is not clear as to
whether the metal pan ceilings were with or without
grid systems.
In all the circumstances, including the fact that the
carpenters are skilled in using the laser beam leveling
device, with no corresponding showing of such skill
on the part of the sheetmetal workers, we are
persuaded that the factor of skill favors an award of
the disputed work to the Employer's own employees
represented by the Carpenters.
5. Efficiency and economy
The Employer has stated that the carpenters have
performed the disputed work in an efficient and
economical way. Moreover, the Employer has
indicated that if the sheetmetal workers were utilized
in the Columbus High School project, it would be
required to pay such employees travel pay from its
home office in Mooresville, Indiana, to the Colum-
bus, Indiana, jobsite. Additionally, the Employer
states that in the ceiling installations of any kind the
carpenters work more efficiently and faster than the
sheetmetal workers.
Under the foregoing circumstances, it appears that
the assignment of the disputed work to the Employ-
er's own employees, represented by the Carpenters, is
clearly the most efficient and economical manner of
operation.
6. Award of the National Joint Board
On April 14, 1972, the National Joint Board for
Settlement of Jurisdictional Disputes, Building and
Construction Industry, awarded the work in dispute
to the Sheet Metal Workers. This decision was
predicated "on the basis of trade practice." However,
the Employer was not a party to this proceeding and
there has been no adequate showing that the
Employer is bound to the National Joint Board
procedures in regard to work at the Columbus High
School project.
Although the National Joint Board decision award-
ing the disputed work to the Sheet Metal Workers
may be a factor to be considered, it is not controlling
since, as noted above, there is no showing that all of
the parties have agreed to be bound thereby .4
Conclusion
Upon the entire record in this case, and after full
consideration of all relevant factors involved, we
conclude that the Employer's employees, who are
represented by the Carpenters, are entitled to
perform the work in dispute. We reach this conclu-
sion based on the Employer's past practice of
assigning the disputed work to its employees; the
assignment is consistent with the practice of area
contractors; the Employer's employees possess skills
to perform the work; and the fact that such
assignment will result in greater efficiency and
3 There are two basic steps involved in the installation of Soundlock
ceiling systems; namely , the suspension and installation of a grid system,
and the installation of panels.
4 Sheet Metal Workers Union, AFL-CIO, Local No. 4 (Tennessee
Acoustics, Inc), 194 NLRB No. 183.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economy. We shall, therefore, determine the dispute
before us by awarding the work in dispute at the
Employer's Columbus High School project located in
Columbus, Indiana, to those employees represented
by the Carpenters, but not to that Union or its
members.
Accordingly, we find that 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.5
The Employer requests that a broad order is
required in this case if future disputes are to be
avoided. The record herein shows that the Employer
has performed five jobs involving the installation of
Soundlock grid systems, and that, apart from the
instant dispute, the Sheet Metal Workers protested
the Employer's assignment of the work in dispute
only at the Bloomington Hospitaljob. Moreover, the
record indicates that the protest at the Bloomington
Hospital job did not occur until after the job was
practically completed, and there is no indication that
the Sheet Metal Workers took any overt action with
respect thereto, such as picketing. Although the
Board need not restrict its award to a single job if
there is evidence showing a likelihood that similar
disputes will occur in the future,6 we conclude that a
broad award is not clearly justified by the evidence
herein. Therefore, we shall 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 Eugene D. Perry d/b/a Perry
Acoustics Company, who are represented by Carpen-
ters District Council of Central and Western Indiana,
are entitled to perform the work of handling and
installing Soundlock acoustical metal ceiling panels
and Soundlock metal soffits panels, including com-
plete grid systems, in connection with the Perry
Acoustics Company High School project at Colum-
bus, Indiana.
2. Sheet Metal Workers International Associa-
tion, AFL-CIO, Local 41, is not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force
or require Perry Acoustics Company to assign the
above-described work to employees represented by
that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Sheet Metal Workers
International Association, AFL-CIO, Local 41, shall
notify the Regional Director for Region 25, in
writing, whether or not it will refrain from forcing or
requiring Perry Acoustics Company, by means
proscribed by Section 8(b)(4)(D) of the Act, to assign
the disputed work to its members, rather than to
employees of Perry Acoustics Company, represented
by Carpenters District Council of Central and
Western Indiana.
MEMBER FANNING, dissenting:
As noted by the majority, the Employer's carpen-
ters on the Columbus, Indiana, project are represent-
ed by Carpenters District Council of Central and
Western Indiana, with which the Employer has a
collective-bargaining contract. That contract pro-
vides specifically that all "jurisdictional disputes
shall be handled in conformance with the procedures
specified by the National Joint Board for the
Settlement of Jurisdictional Disputes." On April 14,
1972, the Joint Board assigned the work in dispute to
sheetmetal workers on the basis of trade practice.
The claim of Local 41 of the Sheet Metal Workers is
based upon this award. Local 1155, affiliated with
the Carpenters District Council, the contractual
union, takes no position with respect to the validity
of the Joint Board's award. Although the Employer
asserts that its contract with the District Council
does not cover the Columbus area because that area
is outside the territorial jurisdiction of the Council,
there is no contention that the area is outside the
jurisdiction of the Council's affiliated Local 1155 or
that the terms of the contract are not in all other
respects followed by the parties.
In these circumstances I am of the opinion that the
parties have an agreed-upon method for the resolu-
tion of this dispute and I would quash the notice of
hearing.
5 Local No 17, Sheet Metal Workers International Association, AFL-CIO Local No. 1, AFL-CIO (Lembke Construction Company of Colorado, Inc),
(J Slotmk Company), 197 NLRB No. 169
6 Bricklayers, Masons and Plasterers ' International Union of America,
194 NLRB No 98.